I. What is Property?

Theoretical Justifications & Bundle of Rights

Property: the right people have to use, exclude, and/or transfer. Property is not things, but our relationship with
things.

Justifications:
1) 1st Possession Theory: what I come into contact with first is mine.
a. Myriad: discovery does not equal invention, intellectual property requires creative labor
b. Carol Rose: possession constitutes useful work because it gives clear notice of who the owner is.
c. Indian nations were 1st possessors but rights were not fully respected because of conquest
2) Labor Theory: mixing labor with objects creates rights to those objects.
a. Locke: “Whatsoever then a person removes out of the state that nature has provided and left it in,
he has mixes is labor with, and joined it to something that is his own, and thereby makes it
property.”
b. Not ALL labor has been recognized historically as relevant
3) Personality Theory: our “stuff” defines us. Property is intimately connected with who we are.
a. Hegel: property is a way humans constitute themselves as people by extending their will to
manipulate objects of the external world
b. Reagan: we are our property, we define ourselves by our rights to our property.
4) Economic Theory: “tragedy of the commons”; property is sole and despotic domination. Incentives and
cost/benefit analysis.
5) Utilitarianism: focus on overall social welfare and incentives; asks how people will behave in response to
competing alternative rules and then seeks to compare the good consequences of each rule with its bad
consequences.
a. Goal is to promote general welfare and maximize social utility
6) Positivism/Legal Realism: “Sovereign says”
7) Social Relations: Property is understood as a set of legal rights that specify relations of social individuals
to the conditions of their productions; Bundle of Sticks approach
8) Justified Expectations: property is a basis of expectation; the expectation of deriving certain advantages
from a thing we are said to possess in consequence of the relation in which we stand towards it.
a. Property law protecting justified expectations is a recurring theme

Owners Bundle of Rights (not absolute!)

1) Right to use
a. Limited – can’t interfere with the rights of others
2) Right to exclude
a. Power to exclude non-owners from the property
3) Right to transfer (alienability)
a. Transferability allows a market to function and enables transactions and property use to occur
4) Right of immunity
a. Immunity from having property taken or damages without consent
- If we think about property ownership as a bundle of sticks, it becomes clear that it is possible to give one
or more sticks away while keeping the rest (disaggregation).
- Owners are obligated to use their property in a way that doesn’t unreasonably harm the legitimate, legally
protected personal property rights of others.

II. Limitations on the Right to Exclude

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The right to exclude is broad but not absolute. Legal rules limit the possessors right to exclude; non-owners have
rights to enter property possessed by another in a number of circumstances.
- State v. Shack: must balance the rights of owners with rights of the general public, and rights of the
owners with rights of individuals who are parties with them in consensual transactions relating to the use
of the property.
o All property rights are limited by the impact they have on other humans and their rights.
“Property rights serve human rights”.
- Non-owners have rights to enter or be present on property possessed by someone in furtherance of their
personal or property interests or in the service of overriding public interests in health, safety or
welfare.
- 3 common law limits on right to exclude:
1) Consent: entry is privileged if consensual or permissive
a. Can be explicit or implied
b. License: permission to enter property possessed by another, revocable at will
c. Licensee: one who enters property with permission of the owner
2) Estoppel: once an owner acquiesces in non-permissive entries, the owner may be estopped from
denying that permission was granted, and substantial reliance may render the license irrevocable.
3) Necessity: non-owners are entitled to enter property of another to save lives or property or otherwise
avert a serious harm
a. ∆ generally must show:
i. They were faced with a choice of evils and chose lesser evil
ii. They acted to prevent imminent harm
iii. They reasonably anticipated a direct causal relationship between their conduct and
the harm to be averted, and
iv. They had no legal alternatives to violating the law
b. Magadini: A necessity defense will excuse unlawful conduct when the value to be protected
by law is less important than the reason for crime as a matter of public policy. ∆ must prove:
i. Clear and imminent danger (NOT debitive or speculative)
ii. Actually (reasonably) believe the illegal action will abate the danger
iii. No legal alternative to abate the danger
iv. Legislature hasn’t precluded the defense
TRESPASS
Defined: unprivileged, intentional intrusion on property possessed by another.
- Intent: intent to enter, not intent to violate rights
- Privileged: entry w/ owners consent, one justified by necessity, or is otherwise in the public interest.
- Interests protected by crime of trespass:
 Possessory interest in home  Commercial interest in business
 Intimate secrets  Right to exclude if not open to public
 Privacy in home
- Uston: (minority) All public businesses must have a legitimate reason to exclude; the decision can’t be
arbitrary.
o Majority: only common carriers and innkeepers have reasonable right of access requirement.
Still usually have discrimination protections for race, religion, etc.
o When property owners open their premises to the general public in the pursuit of their own
property interest, they have no right to exclude people unreasonably and have a duty to not act in
an arbitrary or discriminatory matter toward persons who come on their premises.

PUBLIC ACCOMODATION LAWS

- Exclusionary rights differ depending on whether the property is:
1) Private (not generally open to others)

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 2) Shared (meaning permission granted to another to enter or possess all or part of the property), or
3) Open to the Public
- These laws distinguish between types of property where one is entitled to deny access, from those types
of property where one is not entitled to deny access.
- Public Accommodations are facilities that are open to the public and hold themselves our as ready to
serve members of the public for specific purposes.
o Traditionally innkeepers and common caries because members of the public rely on the invitation
these businesses offer and may often have a monopoly.
- Civil Rights Act of 1964:
o Protections: race, color, religion, national origin
o Damages: injunctive relief, no monetary damages
o Facilities: places of public accommodation
 Restaurants, places of entertainment, gas stations
o Elements necessary to state a claim:
1) Discrimination
2) Enumerated Ground
3) In Place of Public Accommodation
- Civil Rights Act of 1866:
o Protections: contract and house rights equal to those of white citizens (RACE ONLY)
o Damages: implied monetary damages remedy
o Facilities: contract and housing rights
o Elements necessary to state a claim:
1) Member of a racial minority
2) ∆’s intended to discriminate against them on that basis
3) ∆’sa racially discriminatory conduct abridged contract or rights enumerated in 1981(a)
- State statutes inconsistent with federal ones are preempted by federal law and are unenforceable.
o State law can give more protection but NOT less. “Federal law sets the floor but not the ceiling”.
- Americans with Disabilites Act, 1990
o Protections: imposes duty to accommodate those with disabilities
o Damages: injunctive relief only
o Facilities: almost every new AND existing facility that offers goods or services to the public,
specifically inns and hotels, but NOT private clubs

PROPERTY/FREE SPEECH CONFLICTS

Time/Manner/Place restrictions are allowable to protect peace and good order.
- Public Forum Doctrine: used in 1st amendment jurisprudence to determine the constitutionality of
speech restrictions implemented on government property.
o Marsh v. Alabama: ownership doesn’t always mean absolute dominion. The more an owner, for
his advantage, opens up his property for use by the public in general, the more his rights become
circumscribed by the statutory and constitutional rights of those who use it.
o Lloyd: A property doesn’t lose its private character merely because the public is generally invited
to use it for designated purposes. There is generally no free speech access rights in private
property but exclusion can not be arbitrary or discriminate under PAS.
 DIFFERENCE FROM MARSH: no other available public forums in Marsh were
available.
 1st and 14th amendments safeguard rights of the speech from limitations on state action,
not an action by owner of private property used discriminatorily.
- Public Trust Doctrine: The title to the land underlying navigable waters is a “title held in trust for the
people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and
have liberty of fishing therein, freedom from obstruction of interference of private parties”.

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 o Rights owned by the public and can’t be alienated by the US to a private owner
o Has been extended to cover tidelands
o Modern uses of the tidelands justified an extension to encompass recreational uses
o Matthews:
 Factors to consider when determining the reasonableness of membership criteria for
access to areas protected by the public trust doctrine:
1) Location of the dry sand area in relation to the foreshore
2) Extent and availability of publicly owner upland sand area
3) Nature and extent of the public demand, and
4) Usage of the upland sand land by the owner
 Because of the public trust doctrine, the court ruled that the public has a right to gain
access through and to use the dry sang area not owned by a municipality but by a quasi-
public body.
o Some courts have recognized public rights of access under doctrines of custom, usage,
prescription, and dedication.
 Custom – justify recognition of public rights to access of beaches based on the use of the
particular area in relation to its historical and customary usage.
 Prescription – when a property owner waives right to exclude. Continued access and
reliance upon the prescription is protected by the courts. Public can acquire rights
permanently, but need to show property owner actually acquiesced. (based on previously
permitted behavior)

III. Competing Justifications for Property Rights

1) Property & Sovereignty:

a. Johnson v. M’intosh: Indians didn’t have alienability in bundle of rights.
i. Discovery Doctrine: Discovery of land brings with it right to obtain title either by purchase
or conquest.
ii. Conquest: Indians were conquered which limits sovereignty; still recognize rights of
occupancy
iii. Court says character of Indians (need for civilization) and their poor use of land justified
giving rights to those that would make better use.
iv. Land title transfers only valid when made under the rule of the currently prevailing
government.
2) Labor & Investment
a. INS v. AP: News deemed quasi-property; AP has quasi-property right against INS b/c INS is a
competitor. AP has no such right against the public because not in competition with the public.
i. Labor: AP, by its work and investment, created something of value and should be entitled to
legal protection from misappropriation of its product.
ii. Facts can’t be owner but research gathering/combining words is a literary production that
might be subject to ownership.
3) Possession
a. Wild Animals
i. Pierson v. Post: pursuit alone isn’t enough to acquire property rights. Ownership established
by actual capture.
1. Pure labor not rewarded on its own; property acquired by occupancy (at least
mortally wounding or capturing from a distance; at most physical possession)

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 2. Rule of Capture: once one takes control of a natural resource by capturing it in some
way on their land, they take title to and own that resource absolutely.
a. Grants property rights to the FIRST person to possess the animal.
b. Constructive possession = pursuit + more
b. Baseballs
i. Popov v. Hayashi: Complete and unequivocal dominion was necessary for possession, but π
prevented from acquiring because of illegal acts of others, so court granted equitable remedy.
1. Hayashi didn’t acquire illegally, so court refused to completely divulge of his rights.
2. Popov had pre-possessory interest; violence gave him rights superior to the entire
world EXCEPT Hayashi.
c. Natural Resources & Documents
i. Eliff v. Texon Drilling: whoever gets to oil first gets it; oil is free-flowing, like the fox.
1. Law of Capture: owner of land acquires title to resources produced/obtained from
their land, even if it shifted/flowed from someone elses property.
ii. Wilcox v. Stroup: Actual possession is prima facie evidence of a legal title but is a rebuttable
presumption. In absence of evidence that the item belongs to someone else, it belongs to the
one in possession.
SUMMARY
- Capture and possession: oil and fox are free-flowing but can be captured. A baseball can be grasped. If
you seize something and have dominion over it, it becomes yours. Court doesn’t like to divulge
possessors as long as they acquired item legally.
- Manifesting intent to convert an object to your own use can grant property rights
o Popov: CAUGHT the ball
o Post: KILLED the fox
- If attempt is interfered with by illegal conduct, there is a pre-possessory property interest, only to be
trumped by an actual possessory interest.

IV. Intellectual Property

TRADEMARK
Any word, name, symbol, device, or any combination thereof that identifies the producer of a good or service
(must signal the source!)
- Almost anything is capable of carrying meaning in trademark: colors, sounds, smells, shapes, but there
can be a requirement for a secondary meaning.
- Gives the owner of the mark the exclusive right to sue it in connection with the sale of a particular good
or service in a particular area.
- Qualities:
- Can be abandoned - State common law based
- Stems from unfair competition laws - Has substantial value (the goodwill
associated with it)
- Owner can enjoin use of a similar work if it is likely to cause confusion or mistake.
Lanham Act: allowed trademarks to be registered; registration places the whole world on constructive notice of
the registered trademark so later users of the mark can’t claim to have used it in good faith or without knowledge
of its prior use.
- Can’t be registered if mark was in prior use by another or if there is likelihood of confusion
- To prevail under Lanham Act, show:
o Distinguished mark
o Intend to use (or already using) to identify goods
o Mark isn’t a product feature

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 o Must show secondary meaning unless it is a fanciful mark
- Protects against dilution of the distinctive quality mark
o Tarnishment: occurs if a company sells inferior quality products while using the mark of another
company
o Blurring: when a distinctive mark beings to lose its association with a particular company.
- Some courts allow an injunction even if no confusion will result in order to protect against dillution
- Trademark protects consumers from second rate goods, but consumers don’t have a right to sue for
trademark infringement, only the trademark holder.
- Functionality Doctrine: prevents trademark law from inhibiting legitimate competition; a trademark cant
be based on a functioning part of the good.
o To be functional, must be essential to the use of purpose of the article, effect the cost or quality.
- Qualitex Co. v. Jacobson: unfair competition and trademark infringement suit under the Lanham Act. To
trademark a color, it has to identify the product and dignify the source and it must have a secondary
meaning.
o Secondary meaning is acquired when consumers have begun to treat the mark on a product or its
packagaing as signifying the brand.
Defenses
1) Not using for commercial purposes, or
2) Generic: trademark can lose its incontestability if it becomes the generic name for a product.

COPYRIGHT
Protects original works of authorship fixed in any tangible medium of expression including literary, musical,
dramatic, graphic, pictorial, choreographic, architectural, or sculptural works.
- Protected for 70 years after death of creator
- Copyrighted as soon as produced, no special registration or designation need be made to obtain protection
- Copyright owner can sue for injunctive relief or damages (damages ONLY if registered!)
- Ideas and facts are not copyrightable
Copyright Act of 1976: protects original expressions of ideas in works of authorship, promotes science and arts.
- Rights: to reproduce work, make derivative works, distribute copies, perform/display the work
publicly
Defenses
1) Fair Use Exception: allows use of copyrighted works without owners consent for purposes of criticism,
comment, news reporting, teaching, scholarship, or research.
a. Factors:
i. Purpose/character of use; commercial nature or non-profit educational nature?
1. For profit  against fair use
ii. Nature of copyrighted work
1. Less protection for derivative works (especially parodies)
iii. Amount/substantiality of portion used in relation to work as a whole
1. Enough to “conjure up, but no more”
iv. Effect of use on potential market for or value of copyrighted work
1. Market substitute  against fair use
b. Parody: may be intended to comment on original work and need not be limited to variations
intended for comic effect.
i. Suntrust: author used fiction to criticize earlier work to “rebut and destroy the
perspective, judgements, and mythology of GWTW”, and to “explore the romantic,
idealized portrait of the antebellum south during and after the Civil War”.
c. Feist Publications: originality is the sine qua non of copyright and is a constitutional
requirement. If selection and arrangement of facts is sufficiently original, work may be protected,
but facts are not copyrightable. Not every element may be protected!

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 d. Elements in a fictional work that actually existed are facts and not copyrightable (ex – name of
Atlanta in GWTW is a fact)

PUBLICITY RIGHTS
Right of a celebrity to the exclusive use of his or her name or likeness.
- Ask: are they ONLY trading on the name?
- Rights given: right to exclude others from using name or likeness, alienability, inheritability.
Right of Publicity Right of Privacy
Right to CONTROL publicity of yourself Right to CONCEAL yourself from public
Inheritable! Does NOT survive!
- MLK Jr. Center for Social Change v. American Heritage Products:
o Right of publicity not limited to celebrities; extends to public figures as well
o Commercial Exploitation during the lifetime of public figure not required for survivability
o Rights of Publicity are survivable, otherwise would limit value during life
o Policy: When someone’s name or likeness is used, there is a likelihood that the public will
perceive that the good or product is endorsed by the public figure.
- Can’t publicize anyone’s photo without their consent for commercial exploitation, including public
figures
o Exceptions: for public interest or investigation
o Balance of encouraging effort and inspiring creative endeavors

V. Adverse Possession
Adverse Possession – trespass becomes title

Types of Cases
- Color of Title: something in writing which - Cotenants: No adverse possession can be
professes to pass title but actually does not do so, established against a tenant in common or a joint
either from want of title in the person making it OR tenant unless the tenant in possession “ousts” the
from a defective mode of conveyance. tenants out of possession by both:
- Expectations of an adverse possessor operating excluding them from the property and notifying them
under color of title are worth protecting; they are that the tenant in possession is asserting sole
based on actual events. ownership rights.
- Squatters/Bad Faith Adverse Possessors - Border Disputes
- Reasonable belief w/o color of title

Elements
1) Actual – AP must physically occupy the property in some manner
a. Evidence: fence, building on the land, farming, or anything average owner would’ve done
b. Use must be dominion-like and engage in significant activities on the land
c. EASY CASE: (1) physical occupation – fence or building, (2) holding parcel under color of title
(acting as if you actually own the property based on a defective deed)
i. Romero: if acting under color of title, deed is prima facie evidence of the amount of
land/dimensions entitled to, even if only actually possess a portion
d. Standard: ordinary use to which the land is capable and such as an ordinary owner would make of
it
e. Nome: camper trailer placement was enough for actual use because it was consistent with the
seasonal type of use to be expected from an average owner
2) Exclusive – just has to exclude as a normal owner would have
a. Not sharing the land with true owner, absolute exclusivity is not required

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 b. Nome: can allow others on land to visit or as a courtesy but must accord with what an ordinary
landowner would allow
c. Must exclude 2 classes: (1) record owner, and (2) rest of the world as the record owner would’ve
done
3) Open and Notorious –must be sufficiently visible and obvious to put the reasonable owner on notice the
property is being occupied by a non-owner. Must be made known to community
a. Constructive Notice- Possession Open and Notorious, and owner should have known
i. Actual Notice not required, but is sufficient
b. Rural land sometimes considered permissive use since difficult for owner to always know
c. True owner responsible for “reasonable inspection of property”
4) Continuous – only requires possession as reasonable owner; not 24/7 occupancy, but cannot leave for
extended periods of time
a. Tacking- succeeding periods adding together
b. Nome: seasonal use is appropriate because it was consistent with how an ordinary owner
would’ve used the property in rural Alaska.
c. Goble: the doctrine of tacking may be used to establish any elements of AP when the different
possessors were in privity with each other and is especially useful to establish “continuous” when
the current possessor has been on the land les than what the statutory period requires
5) Adverse or Hostile – If true owner gives permission, adverse element negated
a. Without owner’s permission; presumed to be non-permissive
b. Nome: objective test for hostility: whether the possessor acted toward the land as if they owned it
without permission of one with legal authority to give possession?
6) For Statutory Period – Different SOL for different states
a. Tolling S.O.L.- statutory period is tolled while AP is incapacitated; the period freezes, or doesn’t
begin at all, until after infirmity is lifted.

- When an AP claim is successful, true owner loses all rights and the title is transferred to possessor
o Ensures repose for everyone (SOL purpose) and that owners don’t rest on their rights for too long
o Puts property to best use (economic)
o Failure to come forward allows possessors to develop reasonable expectations
o Allows for more clear title and ease of transactions
- Permission from landowner to use/access/occupy land completely undermines adverse possession claim.
Justifications
- Clarifies titles by eliminating - Encourages “active and efficient -Protects reasonable expectations
stale claims use of the land” of possessors: long-standing
possession gives rise to
expectations and, given the title
holder’s failure to assert her rights,
may be seen as creating justified
expectations in the possessor.
- Radin: AP’s interest in the - Posner: Promotes the socially - Prevents valuable resources from
disputed strip starts as fungible but beneficial use of land – the AP is being left idle for long periods of
becomes more and more personal likely to value the disputed strip time by allowing a productive user
as time passes; the title owner is more than the record holder and it to take from an unproductive
opposite – their interests fade over would therefore increase the joint owner. Those who don’t use their
time from personal to nothingness. utility of the parties for title to be property run the risk of losing it
held by the one who values it the to an adverse possessor.
most.

VI. Prescriptive Easements

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Contrast with Adverse Possession:
Adverse Possession Prescriptive Easement
- Actually acquire legal possession if pass all - Limited rights to use the property of another
elements - Refers to an adverse USE
- Refers to an adverse POSSESSION - Grants no fee interests, only limited right of use
- Grants fee (title) interest - No exclusivity requirement
- Possession is occupation of land with the intent - Continued use must be the same exact use that
to control it. granted the easement
- Owner not acting as true owner in exercising - Non-possessory right in someone else’s property
sole & despotic dominion. - Owner not acting as true owner in exercising
sole & despotic dominion.

- Negative Easement: right to limit or block a particular use of another’s land.

- Affirmative Easement: right to engage in a particular use of another’s land.
o 4 types: (1) Prescriptive Easements, (2) easement by estoppel, (3) implication, (4) necessity
- Easements do not expire, they must be revoked/terminated. They are inheritable and alienable.
- Dominant Estate is the estate that benefits from their use of the subservient estate’s property.
- Prescriptive Easement: an easement acquired by adverse possession. A person may acquire an easement
in another’s property by prescription, if he uses another’s property in a certain manner, for a certain
length of time.
o Elements are the same as elements for adverse possession, except with a focus on USE, not
possession. No exclusive requirement
 Proof: clear and convincing evidence
Open and Notorious Continuous (tacking)
Adverse or Hostile Use For a Statutory Period
- adverse to owners interest
- assume non-permissive, even if owner sees
and doesn’t do anything

o When courts grant a prescriptive easement, there are no fee interests given, only permission to
use.
o Tacking applicable for easements as well.
- Rules generally assume that any use is not permissive.
- Community Feed Store Inc. v. Northeastern Culvert Corp.:
o Extent of acquisition must be determined by the extent of actual occupation and use.
o Acquiescence: Some courts say this is satisfied when an owner doesn’t assert their right to
exclude by bringing a trespass action; others say the owner must have actually known about the
use and passively allowed it to continue without formally granting permission.
o Doctrine of Tacking may be used to establish elements of PE as well.
- Trespass is bad, but being a bad owner is worse. Must act like a true owner and protect your property.
- Public Acquisition:
o There is a trend to recognize that the public may acquire a prescriptive easement; presumption is
that public access is PERMISSIVE in absence of clear and convincing evidence to the contrary.

VII. Nuisance
Nuisance law: principle means by which the common law of property addresses land use conflicts; provides
remedies for conduct that causes unreasonable harm to the use and enjoyment of land.

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 - Nuisance: a substantial and unreasonable interference with the use or enjoyment of land.
- Factors courts will consider in finding a nuisance:
o The extent of the harm
o Character of the harm
o Economic and social value of the conflicting activities
o Suitability of the activities for the location
o Ability of either party to avoid the conflict and the practicability and fairness of making the party
do so.
TRESPASS NUISANCE
Violates POSSESSORY interest in property Violates RIGHT TO USE AND ENJOYMENT
-was there intentional physical invasion of -is the harm substantial and was activity
property? (no harm required) unreasonable? (requires some harm
- Johnson: Different interests are protected by trespass and nuisance law which is why harm is required for
nuisance. Nuisance is about the interest in quiet enjoyment and doesn’t require a physical invasion.
- Dobbs: Although the DEF didn’t intend to harm, he did intend to keep 69+ dogs on his property and it is
foreseeable that dogs will bark. He wasn’t negligent, but intentional only requires that conduct is
consequential and DEF should have known or be able to foresee that result.
- Page County: Reasonableness is a function of the manner, place, and circumstances of the DEF’s
conduct; additional factors include priority of the location, character of the neighborhood, and the nature
of the alleged wrong.
o Weighing the gravity of the wrong vs. the meritoriousness of continuing DEF’s activity.
- Doctrine of Relative Hardship: where harm is innocent, minimal, and interference is small, and the cost
of removal is substantial, the court won’t order removal.
o If there is bad faith, the court will order removal.
- Illegal Conduct is a per se nuisance.
- It is possible to sue for anticipatory nuisance but very difficult.
2 Major types of Remedies:
1) Injunctions
a. When conduct is unreasonable (more social harm than good) and there is substantial harm to the
∆
b. Purchase Injunction: have to pay ∆ to shut down; more harm than good but fair to require π to
pay (Boomer v. Atlantic Cement Co.)
2) Damages
a. When conduct is more socially useful than harmful but π is still damaged and it is unfair to
burden the π with the cost
b. When disparity of economic consequences would result from injunction and behavior of ∆ is
socially useful, will award π damages
Light and Air
- Fontainbleau: there is no prescriptive easement for light and air
o Can’t use your property to infringe on anothers’ lawful rights. No lawful right to unobstructed
light and air! (MAJORITY)
- Prah v. Maretti: There is substantial harm here; not granting easement for light and air, no per se rule,
but nuisance is circumstantial. The π values the sun as a resource for his solar panels and there is a social
utility to alternative energy. The ∆ could’ve easily built house so as to prevent obstruction. (MINORITY)

VII. Land Use Regulations and Zoning

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 - Institutional response to localized use conflicts; community level technique to prevent land use conflicts
and planning
- Statute based – sometimes interpreting ambiguous terms
- “Urban Planning”

Constitutionality
- Euclid: To be constitutional, zoning requirements must be reasonably and not arbitrary and aim to
benefit public welfare.
o Reasonableness: tied to public welfare; if debatable, substantial deference to authority of
municipality.
o Zoning in general is a valid exercise of police power.

Euclidean Zoning: focus on separating USES to prospectively managing land use conflicts.
Modern Land Use Regulation: evolved to focus on development incentives, community aesthetics, combating
big-box development, and historic preservation.
2 Doctrines to Defend Against New Zoning Laws
Prior Non-conforming Use
- Bellevile: a non-conforming use exception is established by the type of use and can be abandoned if that
use is changed. A prior non-conforming use can still be a nuisance!
o When in question, presumption is against allowing the change.
o If building is destroyed, most jurisdictions won’t allow rebuilding
o Non-conforming use exception is usually transferrable to other owners (alienable)
Vested Rights
- Stone: π’s purchased land with intentions of developing w/ multi-family units. City changed zoning
before they began construction and π’s brought suit.
o Court held that the kind of work the π’s had done in reliance could be repurposed for another
project and that steps taken must be beyond mere contemplation or preparation in order to have
vested rights.

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 o To have vested rights. This is a case by case determination, but π’s must have taken substantial
steps in project and the following should be considered: (1) type of project, (2) location, (3)
ultimate cost, and (4) amount accomplished under conformity.
- Bad faith always destroys vested rights.
- Majority: if owner invests in good faith reliance on existing zoning laws, acquire vested rights.
- Minority: Acquired at filing of valid building permit
- “SOVERIGN SAYS! Sovereign gave rights by zoning, can take them away

VIII. Servitudes – Easements

Easements = use
Legal device that creates right to use the land (affirmative or negative)

SERVITUDES
Servitude – describes various nonpossessory interests individuals can have in land belonging to someone else. The
main types are Easements and Covenants
- Most intended to run with the land (rights in someone else’s land are attached to ownership of another
parcel)
o The servitude is appurtenant to ownership of a dominant estate whose owner benefits from the
use of the servitude on the servient estate.
o When the servitude runs with the land, the rights encompassed will continue to exist even if the
burdened and benefitted parcels are sold.
o Subsequent servients have a duty to maintain servitudes
Terms
- Affirmative Servitudes: rights to use another’s land for a limited purpose. (Easements)
- Negative Servitudes: restrictions with respect to what owners can do with their land (Covenants)
- Burdened/Servient Estate: land subject to the burden of a servitude
- Benefited/Dominant Estate: right to benefit from a servitude automatically passes to the owners of a
particular parcel of land; (appurtenant servitude)

2 Types of Servitudes – (1) Easements, (2) Covenants

EASEMENTS

EXPRESS EASEMENTS
2 types – appurtenant, and in gross
- Appurtenant Easement:
o Benefit a dominant estate, burden the servient estate
o Favored for their clarity
o Can only be held by a person and is limited to neighboring parcels only
o CAN’T BE SEVERED FROM THE LAND
- Easements in Gross:
o Benefit is attached to a person or corporation rather than the dominant estate
 No dominant estate
 Don’t run with the land, but there is a servient estate
 Can be transferred IF state law allows
- AMBIGUITY:
o Preferred Easement Appurtenant over In Gross
o Primary test: Grantor’s intent at the time of grant. What was the initial purpose?
o Limits:

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 Cannot create unreasonable burden on servient estate, or inconsistent with initial purpose
Ex. can put gravel down on a driveway but cannot widen it (unless understood you could)
Appurtenant CANNOT be converted to easements in gross without consent of the owner
of servient estate
MAIN QUESTION: Does the easement run with the land?
- Easements only run with the land if (1) Easement is in writing, (2) subsequent owners of the servient
estate had notice of the easement at the time of purchase of the servient estate, (3) the original grantor
who created the easement intended the easement run with the land.
o 3 kinds of notice:
 Actual – knowing in fact
 Inquiry – visible signs of easement may put owner on inquiry notice (reasonable buyer
would have done further investigation to determine if there was an easement)
 Constructive – have constructive notice if the deed is recorded properly and if
reasonable search would’ve led to the discovery of the deed and easement
o Intent:
 Scope of an easement is determined by the grantor’s intent at the time granted.
 Easements bind future owners of the servient estate only if the grantor intended them to
run
 Green: If an easement is granted to give access to land for purposes of building
and inhabiting on the property, it is an easement appurtenant (which means it
passes from owner to owner of the dominant estate). The intent in this case had
more to do with the land itself than it did the owners, even though the writing
mention the Greens’ by name.
- Divisibility:
o Appurtenant:
 Cox: The holder of an easement appurtenant can use it in any way that was contemplated
by the grantor if it doesn’t place an unreasonable burden on the servient estate not
contemplated by the grantor. This includes divisibility. Since widening of the road wasn’t
contemplated by the grantor, it won’t be allowable. Changes can be made to maintain or
improve the road but NOT to expand it.
 Can improve the easement but can’t burden the servient estate further
geographically by expanding/widening the road because it means taking more
property.
- Apportionment:
o In gross:
 Henley: In determining whether the easement was apportionable and the entity holding
the easement had the right to license others to use the easement, the court held that since
the use was consistent with the use envisioned by the trustees, it was allowable. The
trustees hadn’t envisioned the technological advances of television service but this does
not mean that the permitted use of easement should be restricted to exclude it.
 Apportionable by grantor (servient estate) if grantor retains rights. If they don’t, grantee
can apportion.
- Exclusivity:
o Non-exclusive easement:
 Grantor/servient estate retains the right to conduct the same use as the easement owner
over the same path.
 EASEMENT HOLDER CAN NOT SELL. Owner retains that benefit
o Exclusive easement:
 Owner of the servient estate has no rights to use the easement in the same way as the
easement owner.

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  EASEMENT HOLDER CAN SELL, GRANTOR CAN NOT. Owner retained no benefit
of sale.

IMPLIED EASEMENTS
PRESUMPTION: when you sell, you sell all rights; no unfair surprise!

Servitudes require a writing per SOF (these types of easements are implied as they are not express/in writing)
- 5 exceptions:
o Easements by estoppel (no writing or in writing but ambiguous deed, focus on intent,
need permission, foreseeable/reasonable reliance on permission leading to changed
position for easement claimant)
 When a license becomes an easement (reliance and change of position)
 Licenses are temporary – revocable at will, not transferable; easements by
estoppel are not revocable.
 Lobato: A court can imply an easement created by estoppel when:
 (1) the landowner permitted another party to use the land under circumstances in
which it was reasonably foreseeable that the user would substantially change
position believing that the permission would not be revoked, (foreseeable –
reasonable reliance)
 (2) the user substantially changed position in reasonable reliance on that belief,
and (changed position)
 (3) injustice can be avoided only by establishment of a servitude. (injustice)
 Some courts will only find by estoppel if there has been fraud or misrepresentation.
 CONSTRUCTIVE TRUST: implied whenever the circumstances are such that the
person holding legal title to the property, either from fraud or otherwise, can’t enjoy the
beneficial interest in the property without violating some established principle of equity.
o Prescriptive Easements (same elements as AP + acquiescence)
 Created through adverse and open use continuously until statue of limitations has passed
for trespass
o Easements by Implication by Prior Use (quasi-easements)
 When an owner of large tract of land or 2 adjoining parcels sells one parcel and keeps the
other, the owner of one parcel might claim an easement on the other even though deed
did not create an express easement.
 Elements:
 Common Ownership
 Rights used before severance
 Use NOT temporary
 Continuation of use reasonably necessary
o TEST: whether the use is sufficiently apparent and significant to
enjoyment of the property that the parties likely believed it was part of
their bargain.
o Necessary = HIGHLY BENEFICIAL, not absolute necessity
 Contrary intention neither expressed or implied (Granite v. Manns)
o Easement by Necessity (starts w/ common ownership, necessity must arise from
severance)
-no prior use required -only applies to remaining land of grantor,
-ABSOLUTE necessity requirement not to neighboring land
-runs w/ the land -rights can lie dormant until needed
-terminates when necessity terminates

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  When a landowner sells a landlocked parcel, the owner of the landlocked parcel has a
right to access through the grantor’s remaining land to get to a public road. No prior use
required.
 ELEMENTS:
 Dominant and servient estates were formerly one parcel, and
 At time of severance, the dominant estate became landlocked
 PRESUMPTION – don’t allow sale of landlocked parcels; can’t make best use of land if
you can’t access it
 Finn v. Williams: landlocked property must be the result of the severance, not some
other factor. Allow easements by necessity because: efficient, benefit of use outweighs
harm/burden on servient estate, more alienable, straight forward/clear – reduces disputes,
honors intent of parties – assume no one intended to landlock parcel.

MODIFYING/TERMINATING EASEMENTS
Easements last forever unless terminated.
- How to terminate:
o By agreement in writing (release of the easement by the holder)
o By their own terms
o By merger, when the holder of the servient estate becomes the owner of the dominant estate
o By abandonment, if it can be shown that the owner of the easement, by her conduct, indicated an
intent to abandon the easement
o By adverse possession or prescription by the owner of the servient estate or by a third party
o Frustration of purpose- can be terminated by court.

IX. Servitudes – Covenants

Covenants = restrictions

COVENANTS
An enforceable promise that attaches to property
- Starts out as a contract but becomes enforceable on subsequent parties not in privity.
- Everyone burdened or benefited can enforce
- Tested for reasonableness
o Presumptively enforceable (shifts burden of proof to challenger to establish not reasonable)
o Not reasonable when:
 Arbitrary
 Violate public policy
 Violate constitution
 Unduly burdensome

Traditional Requirements: (apply these on exam!)

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 1) Writing
a. Comply with SOF at time land passes
2) Notice
a. Party to be burdened must have legally sufficient notice that promise exists
b. Actual, inquiry, or constructive
c. MAJORITY: MUST look at neighboring parcels during title search, on constructive notice even
if you do not
3) Intent to Run
a. Presume intent to run if ambiguous because designed to benefit the PARCEL
b. Can be evidenced by:
i. Clear cut language
ii. Permanency of situation
iii. General plan of development (subdivision)
4) Touch & Concern
a. No covenants held in gross – always benefit the parcel!!!!
b. Promise wasn’t a personal/collateral obligation, probably impacts physical use or market value
but MUST effect rights of parties as landowners
5) Privity (Must have BOTH HP and VP for burden. SOA on benefit – MAJORITY requires BOTH for $
$ damages)

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 a. Even if no privity, promise is still enforceable under equitable servitude by injunction!
b. Horizontal – relationship between original covenanting parties as people. Can get out of this
by a straw sale!
a. If original parties have HP, all subsequent parties to doo.
c. Vertical – successor seeking burden/benefit must be in privity with one of original
contractive parties. NO WAY OUT OF VP!
i. TRADITIONAL: strict VP, must lose all interests
ii. MODERN: relaxed VP/leases are okay
d. Neponsit Property Owners: As agents of the property owners whose property is
reciprocally benefited and burdened by servitudes, HOA’s have standing to enforce those
servitudes if the declaration gives them this power.

COMMON PLAN/SCHEME

1) Doctrine of Implied Reciprocal Negative Servitudes (implied reciprocal negative easements)

- When an owner sells a number of parcels with evidence of intent to create a common plan or scheme of
development then (1) covenants made to the seller benefit all parcels within the plan, and (2) all parcels
within the plan are bound by the covenants.
o Might still be bound even if restriction isn’t in every deed
o Each owner restricted and able to restrict others because restrictions benefit/impact ALL
- Need: (1) common grantor, (2) places restrictions on all or most similarly situated lots or files
declaration, and (3) indicating intent to create common plan.
2) Common Plan/Scheme Factors: (THINK: similarly situated!!)
1. Presence of restrictions in all or most deeds
2. Recorded plat (map) that show the restrictions
3. Inquiry Notice: observe neighbors conforming to restrictions
4. Constructive notice: language stating that the covenants are intended to run with the land.
5. Recording of declaration stating covenants are intended to be mutually enforceable

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 a. Declaration: builders may record a declaration prior to the sale of the first lot that evidences the
common plan and providing notice of the conditions, covenants, and restrictions. Puts buyers on
constructive notice even if left off of deed.
*Objective intent reasonably relied upon by buyers is what matters – Duvall v. Snow pg 588 Note 3*
3) Common Plan Case Requirements
- Evans v. Polluck: part of same plat, similar properties (lakefront v. hilltop), covenants evidence similar
scheme (lake front property owners vote to amend)
- Sanborn: covenants on majority (60%) of properties
- Riley: need something in writing before purchase (NOTICE!)

Common Interest Developments and Property Owners Associations

1. Residential subdivisions and Condominiums
a. Condominiums- attached dwellings or units in an apartment building; the developer will usually
draft the initial covenants or CC&Rs (Conditions, covenants, and restrictions) for these communities
and records them as a declaration or master deed with the local recording office or register of deeds
prior to sale of the first unit. Declaration will usually create a homeowners association or
condominium associations; each of the owners is a member of the association.
2. Cooperatives- an arrangement, the entire building is owned by a single nonprofit cooperative corporation;
individual owners buy shares in the corporation and then lease their individual units from the corporation; this
creates a greater financial interdependence between the cooperative owners and thus a more fragile structure
than the condominium structure.
3. Community Land Trusts and Limited Equity Co-ops- The purpose of these ownership forms is "to remove
land from the speculative market, create housing for low income people, and keep that housing affordable".
a. Community land trusts- nonprofit corporation that buys and holds title to property, ordinarily by
acquiring inexpensive land located in a depressed area or land whose purchase is subsidized by
government loans.
i. Trust retains title to the land, but sells residences on the land, whether as single-family homes
or condominiums, to lower-income purchasers at below market rates.
ii. Ground lease- separate land and unit ownership, and are common in commercial transactions
involving large office buildings.
b. Limited equity cooperatives- the contracts involved in this arrangement allow sale of the owner's
shares at a fixed price, thus preventing the owner from benefiting from increases in the market value
of the unit.
Relationships Between Unit Owners and Developers
- Appel v. Presely Cos. Reasonableness determined by "due regard" and doesn’t destroy the common plan;
should not remove predictability.

LIMITATIONS
- Davidson: Commercial property! 8 factors to determine reasonableness of covenants:
o The intentions of the parties when the covenant was executed and whether the viable purpose did
not interfere with existing commercial laws or public policy
o Covenant had impact on consideration when executed
o Covenant clearly and expressly set forth restrictions
o Covenant was in writing, recorded and subsequent grantee had actual notice
o Covenant reasonable concerning the area, time and duration. (If extends beyond terms of lease—
unreasonable)
o Covenant imposes unreasonable restrain on trade or secures a monopoly for covenanter (limited
space available for certain business activities)***
o Covenant interferes with public interest.**
o Even if reasonable at time of execution, “changed circumstances” now make it unreasonable.

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 - Nahrstedt: Residential property!
o Covenants are presumably enforceable, but unenforceable if unreasonable/arbitrary, the burden
outweighs the benefit, or if it weighs against public policy.
- Shelley v. Kraemer: enforcement of a racially restrictive covenant constitutes state action which violates
the equal protection clause of the 14th amendment.
o If enforced, would impose restraint on alienation by property owners

MODIFYING/TERMINATING
Ways to terminate covenants and equitable servitudes:
1) Changed conditions
a. El Di: Where a fundamental change has occurred in a restricted neighborhood that makes the
enforcement of a restrictive covenant futile, a court isn’t required to uphold the restriction.
b. Changed condition test focuses on whether there is any benefit currently being derived from the
covenant. Doesn’t look at the burden on business, would use undue hardship for that!
2) Relative Hardship Doctrine
a. Focuses on servient estate
b. Covenant will not be enforced if harm caused by the enforcement (hardship) will be greater by a
“considerable magnitude” than the benefit to the owner of the dominant estate
c. If benefit is substantial, the courts unlikely to apply this doctrine despite hardship
3) Language in instrument (neponsit)
4) Merger – benefit and burden become one
5) Release
6) Prescription
7) Statute
a. Blakely: Substantial benefit here for this bridge over the substantial harm of blocking sunlight.
i. Benefit not arbitrary and unnecessary
8) Equitable Defenses
9) Estoppel
10) Acquiesence
11) Laches
X. Concurrent Ownership
Tenancy in Common Joint Tenancy Tenancy by Entirety
-as many tenants as you want, can -RIGHTS OF SURVIVORSHIP -can’t partition unless divorce
all have different interests in -require everyone has equal -can’t sell/transfer or eencumbere
property shares without consent of the others
-can possess ENTIRE property = -unity of possession -creditors can’t attach property to
“unity of possession” -“You win if you die last” can’t satisfy debts of ONE owner
-fractional interests come into devise interest in your will unless
play w/sale or partitioning last tenant standing
-can sell interests -all interests of JT MUST be
-NO SURVIVORSHIP created at the same time “unity of
-default is everyone gets equal time”
shares if not specified - Need ALL 4 unities to be shared
-lease binding when lessor dies to be created: time, title, interest,
b/c no right of survivorship possession.
AMBIGUITY: TIC preferred!! -Severance only occurs b/w
Less restrictions on alienability selling owner and remaining
owner, can only sell your
interests. Person who purchases is
now a TIC w/ remaining tenants

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 who are still JT.
-lease expires when lessor dies

- Shared rights/responsibilities of owners:

o Possession – key benefit! JT and TIC only have a duty to pay rent to their co-owners if have
committed ouster.
 Ouster: explicit/physical exclusion; act by which 1 co-owner excludes others from
jointly owned property
 Remedy: action for accounting
 Constructive Ouster: co-possession has become impracticable; make it practically
difficult for co-tenants to occupy
 Rent: presumption is do not have to pay rent, but that changes if there has been ouster
 Adverse Possession: need affirmative act that puts everyone on notice, exclusive
possession isn’t enough.
o Profits – co-owners are entitled to share any rents or other profits from the property. Can’t be
occupying property to receive share of rent!
 Can lease your own interest – leasing tenant steps into shoes of co-tenant, don’t need
permission from other tenants to lease your interest
o Burdens – share mortgage payments, insurance, taxes proportional to own interest
 IF POSSESSING, bear entire cost of expenses if value of occupation exceeds those costs
 EX: FRV $1000, EXP $800, possessing tenant pays $800
 EX: FRV $900, EXP $1200, possessing tenant pays $1000. Everyone
contributes to the amount that exceeds FRV in proportion with other tenants.
 One who pays for repairs can sue for contribution. Can’t sue for improvements unless
co-owners agreed in advance to pay.
 Most courts say survivor takes property free of debts in a JT, mortgage would die with
death of tenant if co-tenant not listed!
- Olivas v. Olivas: marital friction can be constructive ouster but based on perspective of both parties –
hostility can’t only come from non-possessor! Court found husband actually left to live with girlfriend
and wife wanted him to return; not ouster.
- Carr v. Deking: (TIC!) Don’t need permission from other tenants to lease your interests; the lessee steps
into the shoes of the leasing cotenant and becomes a tenant in common with the other owners for the
duration of the lease. If non-leasing tenant wants a portion of rent, can not partition property and remain
on it, must leave. Lessee has access to entire parcel!
- Tenhet v. Boswell: To sever a JT, need express intent.
- Sawado v. Endo: (TBE!) Property and right of survivorship is immune to claim of creditors so wouldn’t
have mattered if transferred fraudulently, there would have been no rights to the property even if it hadn’t
been transferred to the sons.

IN REVIEW:
- Rent and Ouster:
o Start with the assumption that possessing cotenant does not have to pay rent
o Exception is ouster: possessing tenant has to pay rental value to non-possessing cotenants (based
on their share)
- Burdens on co-tenants:
o Duty to share mortgage payments, taxes, and insurances according to their interest in the
property.
 Some courts include maintenance and basic repairs ; other courts say the parties have to
deal with it amongst themselves and court doesn’t want to be involved

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 If one tenant is in possession and other out of possession, they are still contributing to the
o
mortgage payment and taxes but if the FMV rental value exceeds all the expenses, the one in
possession pays all expenses. (not rent)
 If FMV is less than total expenses, then tenant out of possession must split expenses with
tenant in possession
 Ex: if A is in possession, B out of possession. FMV=1,000, expenses are 1,200. B has to
pay 100
o Generally no duty to contribute to major improvements to the property unless all parties agree to
it. But, if you tell tenants before you make repairs, you may be able to recuperate based on the
increase in property value.
o Co-tenants can lease their interest without approval of other cotenants
o In some jurisdictions, a lease doesn’t sever joint tenancy (becomes a TIC). In some, it does.
Middle ground? Temporary severance?
o TIC survives death, lease, and sale.
- REMEDIES for conflicts between cotenants:
o Accounting
o partition

XI. Marital Property

- Martial property only comes into being AT DIVORCE
o Married Women’s Property Act abolished coverture and gave married women same rights as single
women or men
o Defined by statute
- 2 basic systems:
o Separate Property System (majority)
o Community Property System (Minority)
- Obergefell: set same-sex couples on same ground as heterosexual couples

Separate Property
- During Marriage:
o Married couples have legal obligation to support each other
o Creditors can’t go after a spouse’s property to satisfy a debt undertaken by the other spouse
- Divorce:
o Can give away/sell your own property without the consent of spouse
o Equitable Distribution of Property on divorce – determined by statute
o Judge has great discretion
- Death:
o Separate property states limit ability to decide who gets property upon death and many provide for
forced share allowing the widow(er) to override the will and receive a stated portion. Can otherwise
will property to whoever you want

Community Property (ANSWER IS ALWAYS HALF… sort of)

- During Marriage:
o All property acquired during the marriage, through earnings (excluding gifts and inheritance, and
property acquired before marriage) is JOINTLY held
o Property owned prior to marriage is separate property
o Can change property from separate to community by agreement
- Divorce:

21
 o Relatively mechanical; gives spouses his or her separate property and half the community property
- Death:
o A spouse may dispose of their separate property and one-hald of the community property by will

Pre/Antenuptial
- Premarital (before) and Antenuptial (after) Agreements
o Modern: Both are generally enforceable if voluntary and not otherwise against public policy;
freedom to contract to encourage marriage and discourage bitter divorce disputes.
- How voluntary was signing it?
o Demanded shortly before wedding (less voluntary)
o Relative sophistication of parties—Ex. divorce lawyer vs. lay person (less voluntary)
o Relative time and means of challenging party to access independent counsel
- Most will not enforce if unconscionable at the time of agreement
o Majority: base it on the date of the execution of the agreement
o Minority: may prohibit enforcement if unconscionable at time enforcement is sought, particularly if
there has been a substantial change in circumstances

- O’Brien v. O’Brien: medical license isn’t alienable but does have value based on increase in earning
potential.
o Definition from NY: all property acquired by either or both spouses during the marriage and before
the execution of a separation agreement or the commencement of a matrimonial action, regardless of
the form in which it is held.
o Most states reject NY rule on professional degrees – not property because can’t be transferred, can’t
accurately value, and is knowledge based.

Unmarried Partners
- If sex is sole consideration, have meretricious relationship and contract is unenforceable.
- Watts v. Watts: Public policy doesn’t preclude unmarried cohabitants from asserting a contract claim agianst
each other so long as the claim exists independently of the sexual relationship and is supported by separate
consideration.
o 3 elements to prove unjust enrichment:
 Benefit conferred
 Appreciation/knowledge of benefit
 Acceptance of benefit in a way to make it inequitable for them to solely retain the benefit
o For constructive trust to be formed, need:
 Unjust enrichment
 Breach of fiduciary duty
 If have both, assets will be held in a constructive trust for benefit of the defrauded.

XII. Estates – Present and Future Interests/Estates

Estate Systems: Freehold Interests
Present Words Used to Create Future Interest
Interest
In grantor In third party
Fee simple “to A”
absolute “to A and her heirs”

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 Fee simple Words of duration: “As long Possibility of reverter
determinable as”, “during”, “until”,
“while”, etc

Fee simple Words of condition: Right of entry (also called right

subject to “provided that”, “on of reentry or power of
condition condition”, “but if”, etc. termination)
subsequent
Fee simple Words of duration or Executory interest
subject to condition: “until (or
executory unless) . . . , then to . . .”;
limitation “but if . . . , then to . . .”
Life estate “for life” reversion Remainder (vested or
contingent)

Problems:
- Dead Hand control – there is a certain point when people should lose control over who owns property after
they are dead and gone
Doctrine of Worthier Title
- A common-law rule providing that any purported remainder interest of the grantor’s heirs is actually a
reversionary interest of the grantor. Used as a way to avoid inheritance taxes.
Rule in Shelley’s Case
- A rule providing that any conveyance, which purports both to convey a present possessory estate of definite
duration (such as a life estate) to a grantee and to create the corresponding remainder entirely in the grantee's
heirs, instead results in the conveyance of the grantor's entire estate to the grantee alone, because both the
present and future estates are deemed to be merged in the grantee.
- Converts remainder in grantors heirs into a grant in fee simple absolute to the grantee
- Abolished in most states
Fee Tail
- An estate in real property, usually created by terms of a will bequeathing land to a person and that person’s
heirs, that traditionally conveyed a life estate interest passing from generation to generation among heirs of
the decedent with no right to convey title in fee simple, but which in modern times is typically modified by
statute to allow for conveyance of fee simple title. A fee tail estate would terminate in the event that no heirs
survived the death of the fee tail holder.
- Purpose – to keep land in a family dynasty
- Abolished in the United States

4 main distinctions:
1) Between life estates and defeasible fees
a. Life Estates:
i. Cant designate who receives your present interest on your death
ii. PI = life estate; FI = reversion or remainder
iii. Can be transferred, but you can only transfer what you have.
iv. O to A for life  reversion to O (if no language, assume reversion to grantor)
v. O to A for the life of B  A has life estate pur autre vie with reversion to O.
b. Defeasible fees: present interests that terminate at the happening of a specified event other than
the death of the current owner.
i. 2 distinctions:

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 1. Whether FI is with grantor or 3rd party, and
2. Whether FI becomes possessory automatically upon happening of event or only
if FI asserts possession
2) Between future interests in the grantor and future interests in 3 rd parties
a. Reversion (FI in grantor)
i. When condition in FSD occurs, reverter kicks in and grantor has immediate right of
possession.
ii. O to A for Life  reversion to O (grantor) when A dies
b. Remainder (FI in 3rd party)
i. Two types – contingent remainder, and vested remainder.
3) Between when future interest holder comes into possession (automatic or by assertion)
a. When a present interest (defeasible fee) terminates at the happening of a specified event, it may
terminate automatically or by assertion of FI holder.
i. Automatic Transfer:
1. Called Fee Simple Determinable (FSD)
2. PI = FSD, FI = possibility of reverter
3. O to A until A becomes a lawyer  PI = A, FI = Grantor (possibility of
reverter)
ii. Transfer by Assertion:
1. Called Fee Simple Subject to A Condition Subsequent (FSSCS)
2. PI = FSSCS, FI = right of entry (reentry, power of termination)
3. O to A but if A drinks alcohol, O has right of entry or power to terminate 
PI = FSSCS, FI = right of entry
4) Between vested and contingent remainders
a. Contingent Remainder:
i. if (1) remainder takes effect only upon happening of an event not certain to happen [O to
A for life, then to B if B graduates law school] OR (2) remainder will go to person who
can’t yet be ascertained at the time of initial conveyance [ascertained = born and
identifiable] [O to A for life, then to B’s children (B has no children)]
b. Vested Remainder: 3 types
i. Absolutely vested: remainder not subject to change [O to A for life, then to B 
absolute that A will die]
ii. Vested remainders subject to open: vested in some individuals but may be divided with
others that join the class in the future [O to A for life, then to B’s children (B has
children)  B could have more children, adding to the class]
1. Rule of convenience – court would close class when A dies
iii. Vested remainders subject to divestment: remainder vested but can be lost at happening
of an event [O to A for life, then to B, but if B fails out of law school, then to C]

Interpreting Ambiguous Conveyances/Rule Against Creation of New Estates

2 Presumptions:
1) Against forfeiture
a. Rule Against Forfeiture:
i. Wood: Strictly construe conveyance and assume transfer of fee simple absolute if there is
ambiguity.
2) Against future interest in the grantor

- Edwards: Grantor’s intent was to avoid creditors and that was clear. The 5 children were arguing for creation
of a new estate because there is no such estate that reverts back to life estate holder.

Waste

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The Doctrine of Waste seeks to prevent present possessory owners from unreasonably damaging the estate.
- Can’t damage estate to the detriment of future interests.
- Can’t impair the value of others interests.
- Voluntary and Permissive Waste:
o Voluntary- the result of deliberate acts by the possessory tenant, such as destruction or removal of
structures or resources on the property.
o Permissive Waste- matter of omission rather than commission; failure to make ordinary repairs
preventing deterioration as well as failure to pay real property taxes and other carrying charges
necessary to prevent loss of property.
 Macintyre – failure to maintain reasonably
 Reasonableness is based on RPP; cost of action on remainder holder? More
substantial cost, less reasonable action is.
o Even if damage isn’t intended, but act is intended that results in damage, intent requirement may bee
met.
o STANDARD – what a reasonable person would do
- Ameliorating Waste- when the tenant's actions change the character of the property but increase the value or
utility of the property.
o Courts follow best interest of the parties

Cy Pres (see-pray)
When the charitable purpose identified by a settlor becomes impossible to achieve, courts may apply the Doctrine
of Cy Pres, or equitable reformation, to modify the purpose of the trust.
- Evans v. Abney: will contained restriction that park willed was for use by “whites only”.
o Shelley doesn’t apply because reversion was automatic and didn’t require state action.
o TEST: whether the donor, knowing of the changed circumstances, would prefer to have the charitable
donation fail altogether or modified to serve a related purpose.

XIII. Estates – Rule against Perpetuities

- An interest is fully vested when all future interest holders are ascertained and any contingencies for their
ownership are removed.
- Creation:
o A future interest is created by conveyance at the moment of conveyance, created in a will the moment
the testator dies, created in a trust the moment the trust document is signed (if irrevocable trust), and
at the moment a trust becomes irrevocable if it was originally established as a revocable trust.
- Modern Approaches:
o Wait and See: courts will wait until the perpetuities period has passed to evaluate if the future
interest has vested
o Cy Pres: modifying conveyance in line with the perceived intent of the grantor.
 MOST COMMON – changing age contingencies that invalidate the future interest
o Uniform Statutory RAP: future interest must vest within 90 years of date of creation. Similar to
wait and se, but limits to 90 years from creation rather than lives in being + 21 years.

3 step analysis for Rule Against Perpetuities

1) IDENTIFY THE FUTURE INTEREST

a. RAP applies to

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 i. Executory interests
ii. Contingent remainders (after life estates)
iii. Vested Remainders Subject to Open (after life estates)
b. If future interest is in grantor (possibility of reverter, right of entry), state statute may
require interest to vest within 30 years of creation. Note: state statutes do not apply to
reversions (interests in the grantor that follow a life estate)
2) APPLY RAP (unless it must vest no later than 21 years after the death of some life in being at
the creation of the interest)
a. Future interest is VOID IF there is any possibility that the future interest will vest more
than 21 years after the death of all lives in being at the time of conveyance.
b. IDENTIFY:
i. All lives in being
ii. Whether interest vests
iii. Whether interest bests more than 21 years after the death of life in being
c. Answer template:
i. “Here, the future interest is VOID because….”
ii. “Here, the future interest is VALID because…”
3) IF FUTURE INTEREST VIOLATES RAP, STRIKE EOFFENDING LANGUAGE OR
CHECK TO SEE IF ITS POSSIBLE TO SAVEE BY APPLYING CY PRES.
a. When striking language. Strike until a valid conveyance remains.
b. NO CREATION OF NEW ESTATES!!!!!!!

XIV. Leaseholds
Residential vs. Commercial
- Residential Tenancies: rental property for the purpose of establishing a home
- Commercial Tenancies: nonresidential use, including operation of a business for profit or operation of a
nonprofit institution such as a church or hospital.
- Rules are similar for the two types BUT courts treat them differently because of the expectations of the parties
and the difference in bargaining power

Categories of Tenancies
- Term of Years:
o Last for a specified period of time of any length; ends automatically at agreed upon time, but can be
terminated on the happening of some event or condition stated in the lease agreement.
o Death of either party does not terminate the tenancy
o SOF: must be written if for longer than a year!
- Periodic Tenancy:
o Renews automatically at a specified period unless either party choose to end the relationship.
 Month to month tenancies – usually requires 1 month notice
o Notice requirements set by statute
- Tenancy at Will:
o Similar to periodic, but can be ended with no notice by either party.
o Abolished by most jurisdictions
- Tenancy at Sufferance:
o Tenant was rightfully in possession but has overstayed after leasehold terminated
o If landlord accepts rent, can be held to have renewed tenancy

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Rights/Obligations of Tenants and Landlords
- When renting, present interest is tenancy of years. Future interest is reversion in landlord
- Tenants have rights of possession and right to receive visitors, can’t contract that right away.
- Tenants have rights to live with their spouse, rights for non-spouses are questionable.
- Tenants are obligated to not create a nuisance or disturb others
- Landlord has right to receive rent and the premises in tact at the end of the tenancy
- Foreclosure:
o Termination depends on whether mortgage or lease came first. One is subject to the other
- FORMAL requirements imposed for establishing and maintaining the landlord/tenant relationship
o Procedural Regulations – SOF requirements, notice to terminate requirements
o Substantive Regulations – defines relationships beyond things in the lease (quiet
enjoyment/habitability)
- ALL LEASEHOLDS NOW CONTAIN COVENANTS OF HABITABILITY AND QUIET ENJOYMENT,
CREATED BY STATUTES AND AGENCY REGLUATIONS.
- Holdover tenants:
o LL can reject rent, treat as tenancy at sufferance and sue for possession
o LL can deposit check in escrow and say deposited only to cover rent during time of tenancy at
sufferance. MAKE CLEAR IN WRITING NOT ACCEPTING AS A NEW TENANCY OR
RENEWAL!!!
- Relief:
o Self-help:
 Tends to be outlawed because of potential for violence and want to protect residents from
wrongful eviction. Courts believe the owner shouldn’t be the judge of their own rights.
 For apartment managers, migrant farmers, and college students in dorms, views as licensee
and self-help may be allowed
 Not well-defined or exclusive spaces
 Some sates allow to eject a commercial tenant
 Allowable for trespassers!!!
o Summary proceedings:
 Can balance interest of landlord and tenant; less summary now because of the recognizable
defense tenants can raise. Tenants at will may not be able to raise defenses.

TRANSFERS OF INTERESTS
- Assignment: conveys ALL the tenants remaining property interests without retaining any future rights to
enter the property.
o New tenant (assignee) liable directly to LL for rent and undertakings of original lease
- Sublease: tenant retains some future interest or the right to control the property in the future; may exist if the
subtenant violates one or more of the terms of the sublease agreement
o Can add conditions to agreement allowing right to reenter if ST violates conditions
o If subbing for 4 months out of 6 month lease, goes back to original tenant for remaining time who is
responsible for the lease.
o Tenant can charge the ST more for rent and keep it – the landlord is still receiving the benefit of the
original bargain.
o EXCEPTION:
 LL can sue ST for rent IF ST expressly promises the T to pay the rent to the LL because LL
becomes the third party beneficiary of the ST’s promise.
o LL can sue ST for injunction to recover possession, there is still an equitable servitude.
- Non-renewal
o Can’t refuse renewal based on protected class

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 o Rent control districts – need good cause for non-renewal
o Some limits when converting property (single family house to apartments, apartments to condos, etc)
o Can’t refuse renewal in retaliation

PROBLEMS
1) When lease is silent over tenants right to assign:
a. PRESUMPTION – can assign/sublease
b. When leasing, can bargain for provision preventing assignment so courts assume its alright if
silent
2) Leases requiring consent of LL
a. Kendall: Restraint on alienation without consent is valid, but the landlords consent to an
alienation by the tenant cannot be withheld unreasonably; will read reasonableness into
commercial leases requiring consent because there is a duty of good faith and fair dealing
inherent in every contract.
i. Can not arbitrarily deny consent based on protected class, and can’t use this to get around
zoning requirements. CAN refuse if based on a reasonable business interest!
ii. Can consider 5 factors:
1. Financial responsibility of the proposed assignee
2. Suitability of the use for the particular property
3. Legality of the proposed use
4. Need for alteration of the premises
a. LL gets property back at end of tenancy so don’t want to require LL to
spend too much money to get it back to the original state they wanted it
to be in
5. Nature of the occupancy
iii. NOTE: Kendall’s reasonableness requirement applies to COMMERCIAL LEASES.
iv. There is duty of good faith and fair dealing inherent in contracts!
b. Slavin: didn’t require reasonableness for residential lease. But, LL objection must be related to
the ownership and operation of leased property, not the lessor’s general economic interests.
3) Assignment not allowed at all
a. Courts generally alright with the restraint on alienation with leases

Landlord Duty to Mitigate

- Sommer: prior to this case, NO DUTY TO MITIGATE because landlord bargained for right to have tenant!
o Court imposes duty to mitigate based on basic fairness
o LL accepted surrender by not responding

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- NOTE 2: Not FORCED to re-lease, but when suing for damages, can only sue for difference between FRV
and lease price. If attempt to mitigate, you get ALL damages.
- Must lease for reasonable amount to new tenant
- Landlord’s options:
o If landlord doesn’t accept surrender, the tenant is still on the hook.
 Re-let on Tetant’s Account: essentially a subleaesee, original T still on hook for ST failure
to pay rent
o Accept surrender
 LL can seek back rent or damages right away, FRV – contract $
o Wait and sue
 If attempt to mitigate, can wait until lease term ends and sue for entire contract price
- MUST treat a surrendered unit as part of ordinary stock when attempting to mitigate.
- Landlord must exercise reasonable due diligence in showing property and advertising it as they would for
any other unit (no opportunistic behavior)
- If T offers a suitable replacement to take over lease, duty to mitigate requires acceptance
o Duty to mitigate limits reasonableness requirement
o MUST be financially acceptable and not force LL to make compromising business decision

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