Property Synthesis

PROPERTY: WHAT IS PROPERTY?

WHAT IS PROPERTY?
General Rule:Property rights serve human values. They are recognized to that end, and are limited by it(i.e. the law has to work for us in a practical sense
to reflect the things that we care about)
 Because property rights are relational, among people not people and things,they are not absolute.
 Property rights, as abundle of divisible entitlements, include the right to: (1) exclude, (2) transfer, (3) occupy, (4) destroy
 Property rights can beheld in a variety of forms granting the right to possess, use and enjoy different aspects of a determinate thing
 Legal obligations to others are incurred with the assertion of property rights.
 Property rights are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or
property interests of others.

WHAT IS PROPERTY?:Tensions in Property Law

Rule: property entitlements are limited in a manner which ensures that the exercise of a property right is compatible with the property and personal
rights of others

1. Exclude v. Access:  Property owner has a right to exclude however non-owners retain a right to access property under exceptional
circumstances
2. Privilege to Use v.  Property use may make others vulnerable to the effects of that use however people within proximity to the property have a
Security of Harm: right to be free from certain harms
 Economic theories of property law seek the most efficient solution to these competing interests
3. Power to Transfer v.  Right to devise or convey property to person of your choosing may be limited by contractual agreements
Power of Ownership:
4. Immunity from Loss v.  Right to not have property taken is balanced against the government’s power to take your property for federal usage. No
Power to Acquire: property owner is guaranteed to be immunized from the depreciation in value on their property, in general.

WHAT IS PROPERTY?: Recurring Themes

Social Context Matters in defining property rights

Alienability Dilemma The ability to transfer; tension between promoting alienability through:
(a) the consolidation of rights in owners and
(b) promoting alienability by allowing owners to disaggregate their rights into unique bundles constructed by them
Contractual Freedom Minimum Standards which may be placed on the freedom to contract
Social Welfare granting owners power over property which ensures they can obtain resources to satisfy human needs
encourages productive activity by granting security to those who invest in economic projects
Justified Expectations To insure that people’s expectations are metalways look at expectations with property
expectation of deriving certain advantages from propertyand the relation in which one stand in light of that property
Distributive Justice Idea that “property is power” and that a redistribution of property is a redistribution of power and wealth
Property is one of many forms which wealth takes, and involves the right to control tangible assets. Who is helped and who is harmed?

WHAT IS PROPERTY?: Normative Approaches to Property Law

1. Indian Conceptions of Property:  Based on communal understanding of law in which the land is considered sacred
2. Positivism and Legal Realism:  Law is separate from morals; Law is not from the divine but rather the “commands of the sovereign” promulgated for
(Comes up a lot in the semester) public policy reasons
 This paradigm conflicts with Natural Law theory
3. Rights Theorists/Justice and  An individual interests that is so important from a moral point of view that it deserves legal protection which
Fairness: “trumps” overriding general considerations of public policy
 Rights so rooted in the nature of human beings or so rational from a moral point of view that a particular individual
interest is fundamental
4. Utilitarianism/Social Welfare  Looks at consequences of law and chooses that which has the best consequences overall for society
Advocates:  Seeks that most efficient approach in order to maximize the its positive effects and minimize any negative effects
 Compare the costs and benefits of alternative property rules or institutions with the goal to adopt rules which will
maximize social utility or welfare
5. Social Relations:  Property rights are relations between people not possessions
 Maintains that property rights can only be understand in relation to people and how they act interact with one
another
 Legal realists: interpret property rights as delegations of power to individuals by the state which therefore should be
defined so as to accommodate conflicting interests

1|Page
 Property Synthesis
PROPERTY: METHODS OF ACQUISITION
General Rule:
 Generally the right to property is acquired by (1) contract, (2) familial relations, (3) social custom, (4) claim based on possession or labor and investment,
(5) receipt from the government, or (6) conquest
 These paradigms usually function as mutually exclusive and competing grounds for claims to the “Original Acquisition of Property”

Acquisition of Property:
How do we get property?
3. Familiar Relation

1. Conquest: 2. Labor/Investment:
4. Social Custom:
(Johnson v. Mc’intosh-conquering another country)
Very strong in American property philosophy
(Pierson v. Post-hunting fox)
(Johnson v. Mc’intosh)

5. Government grant:
(Johnson v. Mc’intosh- indian land)

6. Transaction/Contract

Methods of Acquisition: Conquest and Distribution by the Sovereign

“Doctrine of Discovery”:

I. Rule: Absolute title rest with the discoverer of the land and not the indigenous inhabitants that resided there at the time of the discovery. The right
to transfer is separate from the right of occupancy that is held by the indigenous inhabitants. Therefore, the United States, as the successor to
English control, is the exclusive sovereign. Titles which descended from transactions with Indian nations do not supersede US title.

II. Case Application:

Johnson v. M'Intosh(pgs. 4-13): Dispute over landpurchased by Johnson from Indians and which M’Intosh bought from the United States
Analysis:
 BecauseIndians were “savages” wandering the land and notusing it according to European custom they gained no property interest in the
land beyond the right to occupy. Native Am. did not mix their labor with their land and parceled out, so they did not possess their land
according to European standards.
 Justice Marshall determines title to the land by looking at the law of the state that governs the dispute (positive law, law that actually
exists) and NOT abstract justice (natural law, questions of morality, objective fairness).
 This case is significant because it establishes the theoretical framework for American property law which is a shift from natural law theory
to positive law.
Holding:
 Native American retained their right to occupy but NOT transfer land.

Doctrine of Discovery  Title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily
used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.
Abstract Justice or  There is a law above that which man has created which cannot be changed by man
Natural Law
Right to Occupancy  Right to use the land; tribes retained the right of occupancy however the power of transfer and alienability was assumed by the
“Discoverer” or “Conquestor”
Right to Exclude  Allowed to subject others to the right of the land
Aboriginal Title  i.e. effectively right of occupancy;Retained right to occupy and exclude after discovery however no right of alienation
Indian Land / Title  Today, Land is held in trust by the government while tribes retain right to occupy and exclude; tribes may only sell their right of
occupancy to the discovering sovereign but they cannot transfer and have alienable rights to it.

Methods of Acquisition: Capture

Possession:

2|Page
 Property Synthesis
I. General Rule:Possession creates a presumption of ownership which puts others at a disadvantage if they intend to acquire it from the possessor

 Sub-Rule:Possession requires that the possessor have both (1) physical control over the item and (2) an intent to control/exclude it from
others.

 3 ways in which “Possession Rights” can be formed:

a. Social Custom: by culturally contingent factors such as social custom, hard law, precedent, formal codified law (many factors may be
used when there is no rule that governs the circumstances)
b. Corporal (occupancy) Possession: the clearest form of possession; the actual possession of an item
c. Law of Capture: demonstrate an (1) unequivocal intent to appropriate for one’s individual use; (2) through legitimate means (3) to
bring under certain control the common resource available to the parties.
 Depriving animal of actual liberty; “mortal wounding” is sufficient to establish certain capture– a reality of hunting, immediate
removal may not be possible
 Labor and pursuit is INSUFFICIENT to establish right over property
 Unreasonable waste of resource from negligence doesn’t qualify as capture (Elliff v. Texon)

EXCEPT: When Trespassing and Capturing.A hunter on another’s land as cannot retain possession of an animal killed on another’s land without
the consent of the owner if they are a trespasser and the land owner has asserted his right to the property

POLICY: this is the best rule for sake of certainty and preserving the peace and order of society

II. Case Application:

Pierson v. Post (pgs. 76-79):Occupancy « Hunter Chasing Fox Case »Pursuit is not sufficient to establish possession. Only if hunter mortally
wounds an animal with the intent to possess it does possession apply.
RULE: Property is acquired by occupancy only
ANALYSIS:There must be a deprivation of the animal’s natural liberty to establish occupancy which can only come about by a
wounding (to the point where animal cannot survive on its own or capture is virtually certain) or capturing an animal
 If animal is in the process of being entrapped, and “the door has not snapped shut,” it has not been captured

MAJORITY’S POLICY RATIONALE (Pierson Rule):Possession is given to the person who actually obtains occupancy of animal. This rule
would create more certainty and preserve peace and order in society with less litigation costs. This is intended to reward the
effective and successful individual and not just the individual that “attempts.” (“First in Time”)
 Intended to reward results, success, not necessarily the individual that tried

DISSENT: (Post Rule) anyone who has a “reasonable prospect of taking (capture)” should be the possessor.
 Dissent feels it should have been decided by the social customs of hunters and NOT case law.
 Rationale:greater emphasis on fairness “Post may have been successful because fox was tired.” The benefit should go to the
individual who acts without a guarantee that their effort will lead to results rather than the “free-loader.” Because he mixed his
labor with the activity and this would incentivize fox hunting. (Duty of Sportsmanship)

POLICY: when arguing for either side… concepts to be aware of are the level of certainty and incentive that would be created based on use of
the rule of capture (versus another-like pre-possessory interest), questions of fairness (first to invest labor, etc.) or moral duty,
significance of labor investment, etc.

Equitable Division/Pre-possessory Interest:

What Does Possession Require??

i. General Rule: If more than one party has a valid claim to a single piece of property (both innocent parties, neither unlawful) the court
may recognize that there is an undivided interest in the property in proportion to the strength of the claim. If neither party has a stronger
claim then equitable division is used.
 Possession Interrupted by Unlawful Acts: Where an actor undertakes significant but incomplete steps to achieve possession of a
piece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-
possessory interest in the property. (Court has created a property interest for Popov)

ii. Case Application:

Popov v. Hayashi (pgs. 79-82): «Baseball hit by Barry Bonds was caught by Popov who was then tackled to the ground where the ball
was dropped and picked up by Hayashi; Neither men were wrong-doers in the case »
ANALYSIS: The “rule of capture” established in Pierson v. Postonly applies to animal cases because it is physically possible for a
baseball to be controlled vs. a fleeing animal, custom creates an expectation that a person must have complete control before
claiming full possession. Court rules that P had a legally pre-possessory interest in the property while the D had the
HOLDING: Both men have a undivided interest (each has a right to the entire ball and it cannot be physically divided) therefore when
the ball is sold proceeds will be divided equally

iii. Compare: Pierson v. Post and Popov v. Hayashi; in Post, the π was not interrupted by outside “unlawful” intervening event and therefore
his right of possession based on labor was insufficient to trump the ∆ right of actual possession, however π in Popov v. Hayashi was
disturbed inappropriately and therefore his labor granted him a pre-possessory right equivalent to that of ∆ actual possession

Correlative Rights Doctrine-Under the Law of Capture:rights of land owners are correlative to eachother and no liability will exists to the other if the property is
gained through reasonable and legitimate means.

3|Page
 Property Synthesis
i. General Rule:If each party has an “equal right to acquire or access” a resource from in a common source that is able to “migrate” “legal
accessible” to all parties, the party that has captured the resource “in a reasonable and legitimate manner” is the owner. This theory
rewards actual possession but limits by (1) a prohibition of waste of the resource (“reasonable use”) and a (2) duty to not harm others.
a. JUSTIFICATION of Rule: Courts create liability for the wasteful capture of property to an agent with pre-possessory property right in n that
same property if the property is a limited resource and the interest exists to benefit the greater society.
 Background Rules:
o Mineral Rights (Right to Exclude v. Right of Access): Each owner of land has a separate, distinct and exclusive right to all
the oil and gas under his land because they are considered a part of the realty. Owner has usual remedies against
trespassers that appropriate minerals or destroy market value
ii. Case Application:
Elliff v. Texon Drilling Co., (pgs. 83-87):«Parties had adjoining property on which each operated oil & gas wells; Because oil and gas is
migratory, move back and forth underneath the earth, it makes it impossible to establish a rule of absolute ownership. D’s well blew
up destroying resources underneath’s P’s land. Ellief is a compromise position between (1) doing whatever you want and (2)
absolute control of ownership»

ANALYSIS: Court rejects Louisiana’s precedent bc its an archaic rule that doesn’t account for new technology that allows
land owners to measure resources beneath the earth. Louisiana also uses the law of capture for minerals bc of the
uncertainty of knowing under whose land the resources was located. Court applies a caveat to the rule of capture to
promote efficiency and fair dealings, which states
HOLDING:Texon can legally withdraw as much gas/distillate by use of its own well as is possible, even if this means taking
from underneath Ellifs’ property. Drainage from a common pool is okay as long as the drainage complies with the spirit
and purpose of conservation statues and the removal is reasonable and legitimate
LIMITATION:No right to negligently waste of gas must use due care. Obligated to withdraw minerals pursuant a standard
of due care that is both “reasonable and legitimate” i.e. (1) “legitimate:” Must drill from your land (2) “reasonable:” [(a)
cannot cause harm, (b) cannot cause waste, (c) must be reasonable] (negligence standard)

POLICY RATIONALE: (1) Incentivizes parties to develop and produce oil and gas; (2) Balances tension between “rewarding labor” v. “protecting
lawful possession” and “promoting fairness” v. “encouraging development of resources” (3) rewarding late-comers for
their capture will disincentives early investment for others (4) exploitation would occur too quickly and result in waste and
be inefficient
HYPO ARGUMENTS: To protect the party who invested the labor in rendering the property capturable, but the property is gained by another
through the law of capture who benefits from the prior agents investment and work. Could argue that the original
investor has a pre-possessory interest in the allocation of the resource but it is not absolute. On the other hand, this could
create a monopoly on a resource that is not yet absolutely possessed by the other party & would create inefficiencies.
COMPROMISE: TO prevent unfair competition and advantage to late-comers, then those who gave original investment could have a period of
exclusivity to take advantage of their initial investment??maybe..

4|Page
 Property Synthesis

Methods of Acquisition: Labor and Investment

Quasi- Property: is a compromise between two extremes – absolute title vs. free market of resource

Relativity of Title:When examining “quasi-property rights” title to property may not be absolute but rather relative to the parties involved and therefore
the 1st party may have an ownership or interest in a property that is superior to that of a 2nd party competing for it but this does not mean that a 3rd party
may not have a superior claim to that property than the 1st party.
 The relationship between the parties is significant, while a party may be protected against a competitor they may not be protected against a non-
competitor.
 Title can be relative depending on the circumstances and the parties AND the level of labor

Doctrine of Unfair Competition:

a. General Rule:(“Labor and Investment”)A claim of unfair competition may be actionable when it is based on the appropriation of another
party’s literary work (“News Reports”) if the words are repeated by a the appropriating competitor in the same business in such a way as
to convey a “misrepresentation that materially injures” the 1st party to use them
b. Exceptions: lawful capture “first possession” without waste or negligence property,

c. Case Application: (“Quasi-property,” “Relativity of Title,” and “Unfair Trade”)

INS v. AP, (pgs. 32-41): INS used the news stories gathered from AP, claiming that news is not property. AP has a "quasi-property"
interest as it relates to their competitors and therefore AP's work is protected under a theory of unfair competition & relativity of
title, however it would not have one against readers. By creating a “quasi-property interest” in reported news awards the “right of
first possession” and “labor and investment” against competitors.
Rationale: News as a factual account of the history of the day is considered “common property” for the public-at-large and
cannot be copy-written however as it relates to the misappropriation of a competitor of the words or specific style of writing
may be copy-written. This is because news gatherers labor and investment should be rewarded because it will incentivize the
gathering and reporting of news which is a public good. Because the very nature of the news is dissemination (making it
public) if this was considered abandonment there would be no viable business. Profit should come from gaining reliable
information and getting it to the public quickly and not misappropriating a competitor’s work. INS used “unfair competition”
by misappropriating
Holding: News becomes quasi-property when gained legitimately and may be protected from a competitor that would seek to
misappropriate it for their own profit
Tensions: AP principle of rewarding labor and promoting fairness v. INS principle of protecting (lawful) possession (claimed it
was abandoned in public domain)
DISSENT:
Brandeis- INS did not do anything wrong bc the news is not property and not copyrightable. Therefore, AP is
not owed attribution/credit for its story if it is not copyrightable or even property. It owes AP nothing
once info is communicated to others.
Holmes-There is no property right to words or thoughts and facts expressed by those words. But INS owed AP
credit for its labor and investment. Therefore, INS should be prevented from using AP’s story based
on fraud for at least a number of hours unless it gives proper attribution to the true source of the
reporting
POLICY: Deciding factor was creating incentives to encourage parties to develop resources in a productive way i.e. encouraging the gathering of news by
protecting the one that invests its labor

Case Application:
Moore v. Regents of University of California, (pgs. 45-52) “Labor and investment” rewarded if socially beneficial. Plaintiff with leukemia went to
hospital to receive tests, blood drawn was valuable in scientific analysis; he was told he needed to have his spleen removed, consented,
doctor’s intended to take portions of the spleen to send out for scientific testing; doctor’s were exploiting plaintiff’s illness to benefit financially.
Issue: Because one does not have a property right in an item they abandon can a π establish that he retained a property interest in
his tissue.
Rationale: If the patient’s cells are not unique, the patient doesn’t have any property interest in cells. Cell line is not Moore’s
property because it is legally distinct from Moore’s body, product of invention; raw material was different from the cell line for
which patent was sought therefore π cannot establish a property right
Holding:Patient may bring a claim for breach of fiduciary duty but not conversion because he has not established a property interest
in his human tissue.
Tension:Patient's Right of Informed Medical Decision v. Scientific innovation. Patient’s right to an informed medical decision should
not hamper scientific innovation. States decide differently, this is just a principle. Look at general principals and issues.
POLICY: Extending conversion to medical research based on harvested cells would have a broad impact and increased liability and could hamper medical
research making it more difficult. Maintains that the patients “likeness” can be protected better by enforcing informed consent and fiduciary
duty and not by allowing conversion claim. Should the human body be for sale? Or parts? Bio-ethics community grapples with this fact. Anything
that would be harmful to survival can’t be sold but always donated. Think about affects of allowing foreign countries to sell surrogate mothers or
babies or breast milk? Affects on hospital and healthcare system if ppl sell their parts and get sick more and cost system more overall.

5|Page
 Property Synthesis

Methods of Acquisition: Gifts and Finders Law

Gifts Law:
General Rule: Voluntary, immediate transfer of property, without consideration, from one person to another. Once taken a gift is irrevocable unless it is
transferred with a condition. The donor must (1) Intend to make a gift, (2) Deliver the chattel to the donee, and (3) donee must Accept the chattel

1. INTENT to transfer title

a. present intent: in the moment transfer was made there was intent transfer title without consideration; doner must intend to transfer title and not
simply possession
o evidence of intent: actions, letters, words, etc
o Exception: A promise to give property in the future is not a gift.
2. DELIVERY of the property
a. actual: donor physically transfers possession of item such that donee has dominion and control over it
o the easiest and clearest cut
b. Constructive: (delivery must be impractical) physically transfer the means of access to the property. Hand over the means of obtaining possession and
control of the property (e.g. car keys)
o Even if there is evidence of constructive delivery-may not be sufficient b/c the item can manually be delivered.
c. Symbolic delivery: object given that symbolizes the property to be transferred
o eg. Writing (i.e. like a will is symbolic but a “deed” could be seen as “actual delivery”), not promise for future
d. delivery through a third person: donor instructs his agent to deliver a gift to donee or donor delivers gift to agent of donee
o when the donor can’t personally deliver the object and so it gives it to another person to give it to the donee
o the issue here becomes when the object is not delivered but rather is kept by the agent, in a dispute when would the delivery be considered made?
o depends on whose agent it is
i. if the agent is from the receiver of the gift then can show that you were going to accept the gift
ii. if the agent is from the gift giver then courts will say that the property is still in gift givers possession
3. ACCEPTANCEby the donee
o the donee must accept the chattel, and therefore may “reject the gift”
o when the gift is beneficial or has a lot of value to the donee, acceptance is presumed

 3 types of gifts:
o Inter vivos(during life time) property transfers made during the donor’s life; once made it is irrevocable.
o Causa Mortis: a gift made in contemplation of immediately approaching death; revocable if donor recovers from illness that prompted the gift.
o Testamentary transfers (after death) property transfers effectuated at death through a valid will or inheritance

Engagement Ring Scenario (exception to irrevocable gift): the ring is a gift received with a condition
a. Traditional view - man gets it back if they neutrally agree to not get married or she is at fault in breaking off the marriage
b. Modern view - is that the donor should always recover the ring and fault is not a factor, courts do not want a ring to entice marriage and courts don’t
enforce fault in divorce so it shouldn’t be a factor in engagement

Finder’s Law:
General Rule: (Intent of True Owner) An owner of property does not lose title due to lose of property. The owner’s rights in some circumstances persist though
the article has been lost or mislaid. A finder has rights superior to everyone but the true owner.

Background Rules:
Possession: a person is in possession of an object if he physically controls an object
Ownership: usually proven by documentation showing transfer of title to present titleholder. Possession is not necessarily ownership (i.e. a lessee of apt.)
 Ownership by Occupancy: property belonging to no one becomes property of a person taking “possession” of it if w/ intent to acquire the right of
ownership (Res Nullius)

Case Application:
Charrier v. Bell, (pgs. 92-95): Plaintiff located and excavated Indian burial ground and attempted to sell property. Intent of previous
owner/purpose determines whether “discovered”/found items can be possessed or not.
ISSUE: Did the Indians abandon the artifacts?
RULE: Occupancy of land above burial ground- usually one can acquire property over something that belongs to nobody becomes
the property of the person who took possession of it with the intention of acquiring a right of ownership. Except with unmarked
Native American burial groundsthese are not abandoned and still belong to them (mislaid property)
Rationale: Because burial is not abandonment but rather the intent that the goods will remain with the buried indefinitely and
therefore burial goods are not treasure if they were it would promote despoilment of burial grounds. The ultimate owners (Native
Americans) of the artifacts presented substantial evidence that they were not unjustly enriched by the excavation because of the
substantial upset over the ruin of "ancestral burial grounds". And P’s impoverishment was due to his own negligence.
Holding: The court held that objects buried with the dead could not be considered abandoned and therefore could not be acquired
by obtaining possession over the objections of the descendants.

6|Page
 Property Synthesis
HandoutNAGPRA, Indian Remains&UC Berkley: Landowner who discovers Indian burial grounds must notify public officials to negotiate
with the affected tribe for reburial of remains and associated objects, items belong to the lineal descendants or to the tribe on whose land they
were found or to the tribe having the closest cultural affiliation with them

 Unjust Enrichment:unlawful acquisition of money or property of another; criteria (Charrier v. Bell)

1. There must be an enrichment to D (Charrier v. Bell: no enrichment of Indian tribe)
2. There must be an impoverishment to P (Charrier v. Bell: no impoverishment b/c he was aware he had no right to excavate)
3. There must be a connection between the enrichment and resulting impoverishment
4. There must be an absence of justification or cause for the enrichment and impoverishment; and
5. There must be no other remedy at law available to plaintiff

 Relativity of Title: The finder of lost or mislaid property does not acquire title against the true owner but will prevail over everyone else.
o TRUE OWNER → Prevails over→POSSESSOR (finder/thief)→ Prevails over →SUBSEQUENT POSSESSOR
o whether the finder then retains the property depends on the owners intent; abandoned (Finder) v. lost or mislaid (True.Owner.)
 Res Nullius: Property of none and never had an owner; may be owned by the first person that finds it (wild animals)
 Res Derelictae: Things that have been abandoned and are no longer owned
 Policy Rationale for Superior Right of L.O.: claim than a finder because person who left it there may come back and claim it

Lost owner accidentally misplaces property

Who Prevails True Owner (Right of Recovery-TO)
On somebody else’s property a) If a finder trespassing, no rights
On somebody else’s property b) If with permission and in the house, the property owner has better title than the finder
On somebody else’s property c) If with permission and in the open, the finder has better title than the property owner
On somebody else’s property d) Treasure trove: the finder has better title than the property owner
Exceptions e) if finder is a trespasser, employee, guest, or licensee, OR if property is found in a highly private
locus or buried-owner of locus gets possessory rights.
Mislaid owner intentionally placed property however forgot where it was placed and failed to recover because of inability to relocate
Who Prevails True Owner (Right of Recovery)
On somebody else’s property a) If a finder trespassing, no rights
On somebody else’s property b) If with permission and in the house, the property owner has better title than the finder
On somebody else’s property c) If with permission and in the open, the finder has better title than the property owner
On somebody else’s property d) Treasure trove: the finder has better title than the property owner
Abandone owner formed intent to voluntarily relinquish title and possession and has in fact acted in a way to relinquish both title and possession
d  Graves are not abandoned because the intent exists to leave the object in a location indefinitely and not for anyone else to possess
Who Prevails Finder (Owner Forfeits Right)
On somebody else’s property a) If a finder trespassing, no rights
On somebody else’s property b) If with permission and in the house, the property owner has better title than the finder
On somebody else’s property c) If with permission and in the open, the finder has better title than the property owner
On somebody else’s property d) Treasure trove: the finder has better title than the property owner

Treasure Trove: Treasure trove is found gold, silver or money intentionally buried or concealed in the soil with the intent of returning to claim it. When the
true owner of property is unknown the property goes to non trespassing finder even though its embedded. Treasure trove does not include objects buried
with the dead, which do not belong to the finder.

Bona fide Purchasers: A thief can never acquire good title. And one can ever acquire good title from a thief, unless it is a merchant in which case if the
merchant is entrusted with the goods and deals in that kind of goods, the merchant may sell them without permission to a bonafide purchaser.

7|Page
 Property Synthesis

Methods of Acquisition: Trespass and Right of Reasonable Access

MAJORITY RULE: Absolute right to exclusion as limited by state and federal anti-discrimination laws. However, Innkeepers and Common Carrier is cannot exclude
arbitrarily with out reasonable cause (disruptive to safety, drunk, criminal)
 Reasonable to exclude if people are (1) disruptive or (2) threaten safety (drunks, petty offenders, disorderly) because owner has a duty to protect
other patrons. It is Unreasonable to exclude if person is (1) a protected class of persons (race, creed, gender, etc)

Right to Exclude: exclusion is not absolute, may not be used to injure the rights of others, and is limited by (1) Fed anti-discrimination laws and (2) common law
A. Majority View: proprietors have absolute right to exclude, arbitrarily (as long as not against federal or state anti-discrimination laws) anyone from
premises. Common carriers and hotelscannot exclude protected classes per 14th Amendment
B. Minority View: When property owners open up to public for their advantage, they cannot exclude for arbitrary or unreasonable reasons. (Shack; Uston)
but CAN exclude anyone who is not a protected class of people.
1Trespass: is the (1) unprivileged (2) intentional (3) intrusion on property possessed by another; infringement on the right of possession
3 Elements: 1. Unprivileged: without consent of owner
2. Intentional: a voluntary act (strict liability for voluntary physical invasion; not necessary to intend to “trespass” rather intend to enter)
3. Intrusion: occurs the moment the non-owner enters the property (may be an inanimate object, i.e. building, tree limb, overhang)
Defenses: privileges which grant a “right to access” private property because of:  Mistaken entry,is NOan acceptable defense
(1) necessity to prevent a more serious harm to persons or property,  Forced to enter ISan acceptable defense
(2) encouraged by public policy (e.g. fireman) (involuntary)
(3) consent from owner (invitee or licensee)
2 Types of  Civil Trespass:Owner sues the trespasser, i.e. border dispute, one builds a house that hangs onto another’s property
Trespass:  Criminal Trespass: prosecuted by the government, go to court and may have to go to jail or pay a fine
Remedies at  Ejectment: lawsuit to remove the trespasser from land If trespasser has occupied property
Equity:  Declaratory judgment: court confirms party’s legal rights against another party
Remedies at  Injunction: order the wrongdoer to cease wrongful conduct and require wrongdoer to remedy harm
Law:  Nominal damages: (no harm) establishes “right to property” and “right to exclude”
 Compensatory damages: (harm) restoring to previous condition due to diminution in value
 Punitive damages: intended to deter outrageous or malicious behavior

Minority Rule:
State v. Shack, (pgs. 104-108)(MINORITY RULE?) Defendants entered on property to aid migrant workers employed and housed there; one defendant entered to
provide medical attention the other legal aid; owner of land allowed them on the property but would not allow them to talk to the workers alone, defendants refused
and owner called police for trespass by Ds.
Reasoning: Title to property cannot include dominion over the destiny of persons the owner permits to come upon the premises (visitors, workers, etc.).
Right in real property is not absolute and it is curtailed by society and the best interest of others. Property Owner can’t use his property in a manner that
harms others, in particular those in vulnerable situations.
RULE: if purpose of land entry is to serve needs of community one may enter land if it doesn’t interfere with owner’s business and property interest
Decision: Trespass conviction overturned because under NJ state law, ownership of real property does not include right to bar access to government
services available to migrant workers which are fundamental rights and should be protected (Supremacy Clause trumps state law).
Tension: Owner’s “Right to Exclude” v. Gov’t’s “Right to Access” (Supremacy Clause trumps state rule)
POLICY: The landowner's right to exclude must be limited to protect the migrant workers' fundamental human rights.

Right to Exclude (trespass)? Right of Reasonable Access (Owner cannot exclude)?

1) What interests are being protected by excluding others from property? 1) Interest of property owner v. interest of person entering premises?
2) What interests are exerted by the non owner to enter the property? 2) What is the character of the property?
ANALYSIS:

ANALYSIS:

3) What law is claimed for the right of access? a) Open to public?

a) Where does it come from? 3) Status / class of person entering premises?
b) What is being invoked? 4) Type of property?
4) How is the judge going to analyze the competing interests and balance the a) Innkeeper / Common Carrier?
interests of the P.O. and the Accessor? b) Other business?
(Unston) If property owners open their premises to public in the pursuit of their own property interests, Proprietors can…
 
NO Right to

Exclude:YESRight to

Cannot exclude Individuals based on an unreasonably reasons Those who disrupt regular and essential operations of
Exclude:

(duty not to act arbitrary or in discriminatory manner) premises or threaten security of premises and its occupants
 Cannot exclude visitors of temporary occupants of a property  Owner cannot use their property to injury other people
(leassor)
 Innkeepers/Common Carriers have duty to allow access to
public

Uston v. Resorts International, MINORITY RULE(pgs. 116-118) D is a card counter and the (P) casino didn’t like it so P excluded him from entering the casino
Rule: Proprietor whose land is open to the public do NOT have the right to unreasonably exclude particular member of the public. Same as innkeeper or
common carrier, and does not violate state/federal law.
Reasoning: Reasonable if disruptive or threaten safety (drunks, petty offenders, disorderly). Cannot exclude because ∆ does not threaten security or
disrupt function of casino operations 
Holding: The Casino’s exclusion of him is unreasonable, and therefore, impermissible.  The more the owner opens the doors to the public, the more they
are prevented from arbitrary exclusion. The Casino was not threatened by the D’s presence and bc its open to the public it cannot exclude without good
cause…unprofitable patron is not enough.

8|Page
 Property Synthesis
Property: Relations among Neighbors

Adverse Possession: Law and Policy

Color of Title (CoT)-Mistake of fact regarding deed (deed says you own certain amount of land, but deed is wrong) This type of A/P requires that
possession of land be in good faith.
Claim of Right (CoR)-No deed, only occupancy and no state of mind of good faith is required.
CoTConstructive Possession-if A/P is established by CoT then A/Por is entitled to all of the land stated in deed, not just the land that was used.
CoTConstructive Possession-if A/P is established by CoR then A/Por is ONLY entitled to the land that was used and proven to be A/Ped.
Statute of Limitations (SoL)

POLICY Justifications for Adverse Possession

1. Fairness: a. protects A/Por who has 2. Efficiency  By rewarding A/Por who is productive, and penalizing TO who is unproductive,
Justified become attached to doctrine encourages productivity
Expectations land & relies on it  Encourages maximum use of land by:
b. BUT Denies TO right to o decreasing likelihood property is idle
land and for whom o increase development & progress
recovery of land may be  SoL varies by state, most 15yrs
an unexpected windfall 3. Counter-point to  maybe the best use is for it to be idle
Efficiency argument  adverse possession laws are archaic
Law & Economics:  decreases administration costs by establishing rightful ownership by
Provides degree of certainty of o quieting title and
ownership by eliminating stale o foreclosing stale claims
claims which…  decreases uncertainty in transactions
 courthouse recording system has deed of every property and parameters

Claim of Right:
Brown v. Gobble, (pgs. 179-184): π (TO) sought injunction to prevent neighbors from interfering with π's use of 2-ft wide tract of land running
between adjacent yards. ∆s counterclaim, alleging ownership of land by A/P.
Holding: ∆ owns propertybc prior A/Por held land for many years which would satisfy statute of limitations (tacking)
 A/P Burden of Proof (BoP): “clear and convincing evidence” (higher standard than preponderance of the evidence) due to the issue of fairness
and equity
o Fairness and equity are significantly increased because interest at stake is the loss of a homestead
 BoP on the party that claims title by adverse possession
o ∆ uses doctrine of tacking to establish adverse possession periods because connected by privity of title of claim
Evidence used to prove elements:
o Actual: repaired fence, garden, removal of weeds etc
o Exclusive: owners of property did notobject
o Open & Notorious: reputation in community of 2 ft tract-owned by previous owners (privity)
o Claim of tile: claimed A/P pursuant to occupancy
o Continuous: Blevins maintained cultivated land claimed (Privity)

Color of Title:
Romero v. Garcia,(pgs. 185): Filed suit to quiet title based onA/P under color of title (paid taxes) but deed was non specifics and lacked signiture
 Deed is sufficient for color of title even though it lack signature.
 Deed not void for lack of proper description, if deed + extrinsic evidence is sufficient for a surveyor to ascertain boundaries
 Evidence used to prove elements:
o Good Faith: P made continuous payments of taxes-property as hers under color of title.
o Good Faith: Can ascertain boundaries by conduct of parties by erecting house
 Under the surveyor’s notes it ends up being 12.75 acres and this was sufficient for the court

Nome 2000 v. Fagerstrom, (pgs. 187-191)dispute over a tract of land on which ∆’s erected a cabin on the northern part of the parcel after many
years; ∆ uses adverse possession as a defense to ejectment
Reasoning: A/Por were entitled to only a portion of the entire disputed parcel because use of southern portion of disputed parcel did not provide a “reasonably
diligent owner with visible evidence of their exercise of dominion and control” but the area that was used could be included in A/P
 Evidence which proved elements:
o Actual & Exclusive: look at character of property, “seasonal use”
 Evidence: building a cabin, improvements on land shows time they used land like a TO would

9|Page
 Property Synthesis
o Hostile: objective test, no intent, looks at how the possessor is acting towards the land

Adverse Possession (A/P)

General  To establish title by A/P, the party claiming adverse possession must show by clear and convincing evidence (1) actual entry upon land (2) giving
Rule: exclusive possession, that is (3) open and notorious, (4) adverse and hostile under a CoR or CoT, and (5) continuous for the (6) statutory period.
Background:  Property is state law, varies by states; consult state statute on A/P (if none on exam then use common format listed below)
 A/P typically occurs between neighbors for property line disputes (Cannot adversely possess govt. property)
 Transforms “Trespasser” into true owner (TO) therefore possessor can only take the “property rights” that the TO has
o affirmative lawsuit may be brought against another party to quiet title in which court will determine ownership
o affirmative defense to ejectment or trespass claim (analyze “character” and “use” of property)
Elements of A/P Process Analysis
1. ACTUAL Is there a statutory Rule:Engaging in significant activities on the land such as the owner would make of it in ordinary use for which
definition provided? land is capable (triggers SoL)
if not use format  Most jurisdictions define the term “actual” occupancy by statute (however if not then use def. above)
definition. o Physical occupation
o Affirmative acts of “ordinary use”: (1) living on the land, (2) developing the land, (3) etc.
 “User” Right v. “Possessor” Right
o The actual use may be one of a user and not necessarily a possessor and therefore court may only
grant prescriptive easement (shared use with permission ex. Shared garden between neighbors)
2. OPEN AND Rule: Possessory act must be sufficiently visible and obviousthat a reasonable TO would be on notice that the property is occupied by
NOTORIOUS the A/Por
 Standard of Proof: What a reasonable owner should know?
o Actual OR Constructive Knowledge: Actual knowledge is unnecessary only “reasonable TO should know”
 TO is charged with seeing what “reasonable inspection” would disclose.
 Test: are actions of A/Por so “O&N” as to put TO on notice that property is being possessed
o Cannot be infrequent, sporadic, or hidden
o Actions that are Open and Notorious enough to give notice:
 Sufficient: (1) Building a structure, fence, wall, put up signs (2) Mowing land, (3) Using land for storage, etc, (4)
Harvesting, planting, using it for outdoor activity, (5)But they can’t be sporadic
 Insufficient: (1) clearing a few trees, (2) grazing cattle or goats without enclosing land
Policy  A/P exist bc it encourages TO to use their land sufficiently and not be dormant land
Rationale  Create security for occupiers
 Allows TO sufficient time to sue
 Limits TO’s ability to evict after a period for time
 Place TO on notice so TO may raise a claim of ejectment within statutory period
Criteria of Farmland:  fencing, cultivating, erecting building
Possession Wild undeveloped  wild, undeveloped land not suitable for farming, but suitable for fishing and hunting can be
for land: A/P’d by acts of indicating a claim of dominion
City land:  totality of the acts must give a picture of a person claiming dominion
Minerals:  A/Por must remove minerals. Possession of the surface doesn’t give cause of action to the
separate owner of the minerals until the minerals are disturbed
4. EXCLUSIVE Rule: disputed property has to be used by the A/Por in a manner consistent with the character of the land and NOT with the True
Owner’s use or knowledge or consent
 cannot be shared possession with the TO or “general public”
o co-use with TO will defeat claim of adverse possession
o co-use of A/Por with someone other than TO may or may not defeat claim of A/P
 Co-owners may adversely possess someone else’s property as tenants in common

10 | P a g e
 Property Synthesis
5. ADVERSE OR Consent Given by Rule: the non-permissive possession of property is required, however if TO is silent then the law generally
HOSTILE TO? assumes that the possession is non-permissive
(VISIBILITY) under  state of mind of TO and actions to show approval of use
Claim of Right or o If TO can show that A/Por was given “permission” then A/P claim fails
Color of Title o Tension: What if TO sees A/P and gives some “signal”, was this “permission” or “acquiescence”?
“IS THERE A Claim of Right (CoR) vs. Color of Title (CoT): Majority perspective, state of mind of A/Por is unimportant
DEED?”:  SoL periods may be different between CoR and CoT
 CoRA/Por believes property is theirs based on an informal occupation of land
o In some case unnecessary to believe it is actually A/Por’s, may just want it (Intentional Trespasser)
o A/Por can only possess area actually occupied or controlled in manner consistent w/ ownership
 CoTthe claim is based on an erroneous or flawed deed that was believed to be correct:
o A/P may obtain entire property indicated by the deed even though only used a portion
o Deed may be “faulty” due to: (will serve as basis for CoT claim)
 (1) lack signature, (2) faulty procurement procedure, (3) mistaken/ambiguous parameters doc.
(parole evidence rule governs)
 sufficient under “objective” and “good faith”; insufficient if “intentional trespass” is required
o Constructive Possession Doctrine: Demonstrate A/P to any part of the land under the deed will
allow a claim for the entire land under the deed (considered “good faith claim”)
 if an actual entry on part of the land is described in the deed, the possessor may be deemed in
constructive possession of the rest, BUT an actual entry on some part of the land is required.
“IS THERE A Review state statute 1st, if none then assume “majority view” that state of mind is irrelevant
MINDSET  3 different mind sets for the adverse possessor
REQUIREMENT”: o Objective (majority view): state of mind of A/Por is irrelevant rather actions of A/Por are analyzed
 is A/Por occupying land under “community norms” and without permission of the owner
 occupation of the land is prima facie evidence under a claim of title which triggers SoL
o Quasi-objective:  The adverse possessor must act toward the land the way an average owner would.
Intention to appropriate land need not be expressed, but can be inferred from conduct.
o Good faith: (CoT) bona fide or good faith belief A/P has title to land (Did he pay taxes on property?)
 If possessor knows he has no title, and that someone else has title, possession is not adverse
o Intentional trespasser: “Bad faith” A/Por must know property it is not his and intend to take title
6. CONTINUOUS Rule: control must be continuous (1) use in the manner of a TO’s “use” for the duration of the (2) SoL
 look at: (1) nature of the property, (2) location of the property, (3) character of property
 Must be continuously used in the manner that a TO would use land
o A/Por use must be consistent with a TO of that property
 e.g. If seasonal property then seasonal use is permitted
o If A/Por abandons property, without intent to return, continuity of A/P lost, A/P resumes on return
 Abandonment: intentional relinquishment if possession
Tacking (Brown v. Rule: Successive periods of possession, by previous owner with whom the A/Por’s is in privity, that are
Gobble) aggregated and through which A/Por may fulfill the statutory period and satisfy requirements of A/P
 Privity of estate: possessor voluntarily transferred to a subsequent possessor either an estate in land or
physical possession; prior owners must have purported to have passed title to the property in dispute
 “Tacking” is allowed to provide sufficient “time” and “use” to establish A/P time requirement was meet
7. STATUTORY PERIOD Rule: (1) Set by statute (exam: statutory period is 10 or 15yrs) and (2) toll SoL when TO brings suit
 SoL may change depending on “color of title” claim, “claim of right”, etc.
 Doctrine of Tolling: some jurisdictions may toll SoL of TO due to a “disability of TO”: (a) Infancy, (b) insanity, (c) incompetence, (d)
imprisonment, (e) absence from the state, (f) war
o Some jurisdictions will: (1) toll the statute only after the disability ends (2) modify the SoL after disability ends (3) provide a
max period greater than state SoL even if disability is not terminated
o A/Por must still satisfy ALL elements of A/P during this “Toll period” to prove possession But if the A/Por begins A/Ping
before the true owner experiences any of the exceptions then statute of limitations runs normally.
 Dilemma: What happens if you adversely possessed the property that has limitation on it?
 Rule: A/Por can only get the property to the extent that the TO has ownership of it.
 Policy: A/Por should only be allowed to receive the rights that a TO would have

11 | P a g e
 Property Synthesis

Other Informal Title Transfers

ENCROACHMENT
Definition: An infringement (encroachment) of another’s rights in which a party interferes with or intrudes onto another’s property (ex. Neighbor’s new roof
extends past boundaries of other neighbors property. Remedy would be compensation to TO)
Majority Rule:  Relative Hardship Doctrine: The court, in circumstances in which an improver that has mistakenly improved the land of
another, may refuse to issue an injunction to require an “Improving Trespasser” to remove property and entitle the
Trespasser to the value of the improvement
o Elements: (1) encroachment is innocent (an intentional encroachment can’t use relative hardship doctrine), (2)
improvement’s harm is minimal or beneficial, (3) interference in TO property interest is small, (4) cost of removal is
substantial
o If both parties are innocent the remedy will depend on the “circumstances” and “relative equities”
 Examine “good faith”… i.e. were the necessary measures taken
 BUT acting in “bad faith” will require that the structure be removed.

Analytical  Did encroacher act in good faith or intentionally build on land?

Approach:  Is hardship incurred removing structure disproportionate to harm caused?
 Cost of removal?
Minority Rule  Absolute Right Doctrine:Property owner has an absolute right to an injunction ordering an encroachment cease no matter
(Traditionalist): what the cost

Remedy:  Order the TO to pay the encroacher for the value of the improvements to the land
 Order removal of the encroaching structure
 If trespasser is allowed to continue encroachment:
o award damages to compensate the landowner for permanent encroachment
o grant encroacher an easement over the land or
o force sale of land to encroacher for fair market $ and any damages for loss of land
ENTIRE STRUCTURE ENCROACHMENT
Definition When a trespasser builds an entire structure on another’s property and it becomes a fixture
Majority: When a builder mistakenly constructs an entire structure on land belonging to another, the courts rule that the landowner
becomes the owner of the structure built on the land by another. And may keep or remove a structure regardless of the affects
on TO’s property value.
Majority Remedy: TO becomes the new owner of the structure ANNEXATION
If court looks at overall societal benefit = weigh value of structure on land and price of removal and waste of removal
If court looks at rights of parties = weigh the interests of each party and their interest in the structure and burden of keeping or
removing structure
(judges personal experiences and thought process matters on which remedy is chosen)
Minority: (Somerville v. Jacobs) Courts will grant relief to one who through reasonable mistake of fact and in good faith places permanent
improvements upon land of another, with reason to believe that the land so improved is that of the one who makes the
improvements and that the Ps are entitled to relief.
Minority Remedy:  Order the TO to pay the encroacher for the value of the improvements to the land
 award damages to compensate the landowner for permanent encroachment
 grant encroacher an easement over the land or
 force sale of land to encroacher for fair market $ and any damages for loss of land

Unjust  Unlawful acquisition of money or property of another

Enrichment: o intentional improvements by one who knows he is trespassing belong to the owner of the real estate; the bad faith of
the improver negates the injustice of the enrichment
“de  “that the law will not concern itself with trifles”
minimuscuratlex:”  Crt will not grant equitable relief for π if it will do π no good but work a hardship ∆
Boundary Boundary by Agreement: uncertainty or dispute by parties; has to be with intent for agreement to draw the boundary line
Disputes Boundary by Acquiescence: knowledge but silence; no agreement
Boundary by Estoppel: A/P reasonable reliance and act to his detriment

Somerville v. Jacobs, (pgs. 218-221): In good faith (in reliance on a surveyor’s report) and by mistake, P built warehouse on a lot; D learned of the building
after construction and claims annexation, improvements passed to them as part of the land; P’s claim equitable relief
 Rationale: In order to prevent unjust enrichment benefitting property owners
 Decision: P entitled to equitable relief because TO would be unjustly enriched
o Relief sought by P: (a) damages of $20.5K for value of improvements to lot, or (b) ∆s be forced to convey their lot to them for fair consideration.
 Dissent: D did nothing wrong and P should be the one to take windfall bc it was the P’s fault. Options should be that D can sell building to P or have P
remove building.
 Evidence which proved elements:

12 | P a g e
 Property Synthesis
o Good Faith: court found that both parties acted in good faith
o Cost of Removal is Substantial:removal not possible of the structure
o Unjust Enrichment:TO will be unjustly enriched if not req’d to pay or sell and P will suffer a substantial loss

Adverse Possession SoL for Personal Chattel Property

Replevin action for repossession of personal property wrongfully detained by another
 3 Diff Rules for SoL: Conversion, Discovery (New Rule: Majority), or Demand (New Rule: Minority)
 thief cannot acquire good title, nor anyone that receives property from a thief
Bona Fide unaware property was stolen not able to retain ownership unless SoL tolls
Purchaser:  Exception: (UCC) entrusting possession to a merchant dealing in kind of goods given will empower to transfer all rights of
entruster to buyer vesting good title in buyer
Conversion Rule: (Old Rule)SoL begins when property is wrongfully taken and TO is dispossessed of property (Tolls even if theft is concealed)
Discovery Rule: SoL begins on stolen property once TO discovers where stolen property is
o Not accrue while TO uses due diligence to locate property
o Does accrue once TO (1) knows or “reasonably should know” whereabouts of property and (2) identity of
Possessor
BoP: TO must use due diligence in locating missing item
o “Due Diligence”: what tools were available for recovery?
o Conduct of the owner is analyzed and not that of possessor
o Rationale: greater protection of innocent TO of stolen property
Demand Rule: SoL begins when TO demands return of chattel and GFP refuses return
New York Rule  Until “demand” and “refusal” property is not considered “wrongful”

Nuisance

Nuisance
General Nuisance:is both the substantialharm AND unreasonable interferewith a party’s use and enjoyment of their land. But NOT an Absolute Right.
Rule:  Distinguishable from a trespass b/c trespass requires intentional physical invasion of property, but nuisance does not require a physical
component (noise, smoke). Trespass attempts to protects the physical ownership of land & Nuisance protects the use/enjoyment of land
 Physical components that invade a land (pollutants, carcinogens, microscopic invasion) could be under nuisance or trespass bc of
advancements in science they are now quantifiable enough for trespass.
 Trespass is an intentional physical invasion; however nuisance is “intangible/not physical” interference in landowners use and enjoyment of
land
 Distinguishable from Negligence bcnegl is about the reasonableness of conduct and how it is carried out BUT Nuisance concentrates on the
result of the conduct whether reasonable or not
Rational “Nuisance Maxim”: (when analyzing nuisance claim) no one has the right to use their property to the injury of another, however there is no right to
absolute security in property because everyone will incur some cost by the virtue of living in the world (point to remember)

IN EVALUATING Extent of Nuisance Courts will…

Measure Reasonableness Standard:when gravity of harm outweighs the utility of the actor’s conduct it is unreasonable R§826
Unreasonable o Lawful operation of trade or industry test: the reasonableness of conducting a trade or industry in a manner at the
Use: place and under the circumstances (flexible doctrine, facts of each circumstance is important)
o Ultra-hazardous activity: Strict Liability will be imposed when a party engages in ultra-hazardous activity (no showing of
substantial or unreasonable is necessary under strict liability formula)
o Unreasonableness and offensiveness of conduct is measured by a normal person’s sensitivities
 Factors for reasonableness analysis (causes a substantial harm or is unreasonable):
1. “Character of the neighborhood”: Is use typical to manner and function of land
2. “Hypersensitive”: Plaintiff cannot devote his land to an unusually sensitive use and claim nuisance for his disturbance.
3. “First in Time”: Preference by priority; (Who was at the location first? Did the complainant “come to the nuisance?”)
4. “Nature of the alleged wrong”: what is the harm being caused? And is it common? Should it be tolerated?
 Way of Conceptualizing Unreasonable:
1. Fairness Analysis: focuses on parties themselves, Does the P’s right to security prevails over the D’s right to act
2. Social Welfare Analysis: focuses on society as a whole, is society better off if the conduct continues with the harm
Measure  Extent of harm caused
Gravity of  Character of harm involved aesthetic harm less serious than health/safety concerns
Harm  Social value of activity should owner shoulder costs (pass on to customers or make Plaintiff shoulder burden?
 Suitability of the use to its locationdid P come to the nuisance?
 Burden of Plaintiff to avoid the harm

Measure  Social valueoverall benefit of primary purpose of conduct

Utility of  Suitabilityconducts appropriate to the character of the locality
Conduct  Impracticability unable to prevent or avoid the invasion

Measure  Character of harm involvedaesthetic harm less serious than health/safety concerns
Fairness  Distributive Considerations should individual owner bear the costs of D’s socially beneficial activity or should the cost be
spread around to D and his employees & customers?
 Fault is the activity disfavored? Is conduct appropriate for area Did P come to the nuisance?
Measure  Cost and benefits cost/benefit of allowing conduct & const/benefit of prohibiting conduct
Welfare  Incentiveswhat incentive will liability and immunity have? How will balancing of burdens incentivize safety or desirable
13 | P a g e
 Property Synthesis
economic activity?
 Impracticability of preventing or avoiding the invasionwhich party can more cheaply avoid the cost?
Private Rule: rules which provide remedies for a party’s uses of real property in a manner that (1) cause substantial harm and (2)
Nuisance unreasonably interferes in an individual’s right to “use and enjoy” their property. Typically applied when there is no special rule
Doctrine: that has been created by court or legislature
Examples:  toxic waste, air pollution, drug dealers, flies, noise, dust, odors, from manure plant damaged property
interests, decorations that draw a crowd
Light & Majority in absence of a statute or agreement to the contrary, owners have absolute right to develop their
Air Rule: property without liability for any interference in their neighbor's interests in light and air however
(Fount.) it cannot be for the sole purpose of maliciously harming neighbor without being useful or
beneficial (Spite Fences).
Minority  There is no absolute or unlimited right to use land, rights of neighboring land owners are relative
(Prah) and therefore use by one must not unreasonably impair use or enjoyment of other (usefulness)
Public Rule: a member of public may sue for a public nuisance when there is an (1) unreasonable interference with a (2) right common
Nuisance to the general public (historically brought by a civil servant, however slowly opening to public in general)
Doctrine: Examples:  public health; keeping diseased animals, maintenance of pond with mosquitoes; public morals brothels,
indecent exhibitions, public peace loud and disturbing noises, public comfort bad odors, dust, smoke, public
convenience obstruction of public highway
Fairness or Reasonableness Test Policy Decisions: “Rights and Fairness analysis” vs. “Social Utility and Welfare analysis” ()
Utility  Rights and Fairness Policy: analysis focuses specifically on the parties involved… (narrow set of concerns, only parties involved)
o Rights analysis: Who has the right? Where is the property entitlement placed at the outset?
o Fairness analysis: What is ultimately fair between these two individuals?
 Social Utility & Welfare Policy:promoting welfare & good social outcomes analysis focuses on society as a whole…(this can be in opposition
Fairness analysis)
o Social Utility analysis: Cost and Benefits?
o Welfare analysis: What advantages will be accrued to society by allowing or prohibiting an activity?
 Judicial Role Analysis: how far reaching should the judicial go to promote change and the roles of judges
o Do we want Crystals or Mud? Clear rules vs. sliding scale for fairness

Page v. Honeywell, (pgs. 273-76): D and P have business located next door. D’s computer (leak of radiation) caused P’s televisions to malfunction (tv store)
interfering with business fro two years.
Holding: D’s use of land was unreasonable and substantial despite it being a lawful activity.
Measure of Unreasonable: If gravity of harm outweighs the utility of the actor’s conduct then the use is unreasonable.
Factors:manner activity is conducted, place conducted, type of business carried, circumstances of operation, appropriateness of location, character of
neighborhood, nature of wrong. HERE it took D two years to fix radiation leak. Disruption of the P’s business. P’s use of land was not ultra-sensitive bctvs
are common.

Gravity of Harm 1. Extent of harm (must be substantial)

2. Character of harm
3. Social value that the law attaches to the type of use or enjoyment invaded
4. Suitability of the particular use or enjoyment invaded to the character of the locality
5. Burden on the person harmed of avoiding the harm
Utility of Conduct 1. Costs/benefits
IN EVALUATING…

2. social value the law attaches to primary purpose of conduct

3. the suitability of the conduct to the character of the locality
4. impracticability of preventing or avoiding the invasion
Fairness 1. character of harm (aesthetic harms will be viewed as less serious than health or safety concerns)
2. distributive considerations
3. Who is at fault?
4. Is Harm a nuisance because it is not fair to make π bear harm w/out compensation?
5.  “absolute right to be free from harm” v.  “right to freedom to act”?
 Who gets entitlement?
Welfare 1. costs and benefits of allowing the harmful conduct must be compared with the costs and benefits prohibiting it
2. Incentives: what effects will liability or immunity have on incentives to engage in the activities?
3. Lowest cost avoider: which party can more cheaply avoid the cost?
Extent of harm to ? Social utility of ’s activity?
Process of Analysis

v.
Social benefits of ’s activity? v. What would society lose?
Overall relative social costs of conflicting land uses? v. Overall relative social benefits of conflicting land uses?
Alternative means at lowest cost? v. Which use was established first?
’s motive (Profit=legitimate) v. ’s motive ( Spite/Malice: illegitimate)

Remedies:

Ex. Remedies Dismissal of Complaint, Damages, Cost of restoration, Repairing the damage, Bringing back property back to its prior condition,
Diminution in market value, Injunction (Court order for ∆ to do or NOT do acts), Purchased injunction, Conditional injunction,
Order to stop activity on condition that π’s reimburse ∆
P may obtain an injunction against D’s conduct  D’s conduct is UNREASONABLE (causes more social harm than good)

14 | P a g e
 Property Synthesis
INJUNCTION when: and causes SUBSTANTIAL harm to the P
DAMAGES P may obtain damages but NO Injunction if:  D’s conduct is reasonable (it causes more social good than harm and
should be allowed), BUT the harm to P is substantial so that it is unfair
to burden P with D’s socially useful conduct
NO REMEDY P is entitled to NO remedy if:  The harm to P is NOT SUBSTANTIAL; OR
 D’s conduct causes more social good than harm, and it is not unfair to
impose the costs of D’s activity on P; or
 The imposition of damages would put D out of business and need to
avoid this result (bc of the social value of D’s conduct is more
important than preventing the harm to P)
PURCHASED P is entitled to a purchased injunction if:  D’s conduct causes more harm than good BUT it is not fair to impose
INJUNCTION the cost of shutting down D’s activity solely on the D. (g. when P comes
to the nuisance)

D’s
Purchased
No
P gets
Remedy
absolute
damages
injunction
right
but
on
to engage
P’s
D’s inalienable
in activity
injunction
NO conduct
injunction
or
bybePright
to to be
secure secured in land and right
from
to beD’s
harm
stop free from harm
(Bargaining
activity is inalienable (No bargaining)
allowed)
NUISANCE (Light and Air)

Fontainebleau&
P rah present
contrasting visions of economic activity& Right to Air/Light
 Fountainebleaurules that erecting structures that serve no use or benefit for the purpose of spiting a neighbor should not be allowed, but if a useful and
beneficial purpose exists (regardless of spite) then it will not grant an injunction
o Paradigm: all development of land without regard to external consequences is a logical and defensible pursuit
 Prah external harms caused by development of land is not allowed if it prevents use of an exploited resource (included sunlight with solar panels)
o Paradigm: views land & resources as limited in supply and therefore external harms caused by development should nto be allowed

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., (pgs. 284-85): (Majority Rule for Nuisance L&A) Little hotel (P) v. big hotel (D) in sunny Florida
 Issue: Can a party enjoin their neighbor from constructing an addition that interferes with light and air on the party’s property?
 Rule: Nuisance doctrine applies only to legally protected rights and there is a no right to light and air unless created by statute or contract.
 Reasoning: No legal right to the free flow of light and air from the adjoining land, and since the structure serves a useful and beneficial purpose, it does
not give rise to a claim though it causes injury by cutting off the light and air, regardless of the fact that the structure may have been erected partly for
spite

Prah v. Maretti, (pgs. 302-07): (Minority Rule for Nuisance L&A) pre-existing home with solar energy system; ∆ is a new neighbor who wants to build
 Issue: Does ∆’s development of land interfere with π unobstructed access to light for his solar energy system?
 Element Analysis:
o Is the harm substantial?
 Yes, activity precludes π's use of solar panels which is a highly desirable activity and π built home first, so harm cannot be avoided
o Is the interference unreasonable?
 Yes, harm to π and to society if people have no protection from interference with use of sunlight as alternative energy source
 Reasoning:Court believes that the doctrine of the “Ancient Lights” used in England should be used as a principle (Ancient Lights = if landowner received
light across adjoining party for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight). Since there
is no absolute or unlimited right to use land the rights of neighboring landowners are relative and therefore the use by one must not unreasonably impair
use or enjoyment of other. The use of P’s land includes the exploitation of the resource available on his property which was sunlight. A landowner’
compliance with zoning laws (D) does not mean he cannot be sued for nuisance.
 Dissent: D had a lack of notice of the restriction that his land would be subjected to, whereas the P knew of the possibility of such a restriction and failed
to mitigate damages by either compensating the D or purchasing the lot himself. P’s use is hypersensitive and not entitled to an injunction. The D was
building his house within his legal right and the P is not exercising a free right (no right to light and air) BUT legislature can act regarding these issues,
not court.

15 | P a g e
 Property Synthesis
Property: Private Land Use Controls
Servitudes

Easements

Benefit v. Burden
Dominant v. Servient
Run with the land
Appurtenant in gross

Servitudes
Definitions Dominant Estate: Land receiving benefit of use of land
Servient Estate: Land allowing use of that parcel
Negative Easements: agreement NOT to do something, Courts stopped using Neg easements overtime (only some exists today)
Appurtenant: attaches to the land and runs with the land
Easement in Gross: attaches to the person and runs with the person (till death) and NOT with land
General Rule: a private contract (actual or implied) between parties that creates a right or obligation that “runs with the land” or with an interest in the land is an
easement.
 Common issues in servitudes: (1) formal requirements (When do informal revocable expectations become irrevocable?) (2) interpreting
ambiguities substantive requirement, (3) modifying and terminating servitudes
Interest in the Land  Burden on a S/E passes to subsequent owners of the S/E giving the easement owner contract rights against the
original grantor and all his successors
“Runs with the land”:  passes automatically to successive owner and occupiers
 Rules governing when an easement “runs with the land” depends on whether it is an express or implied easement
For a Burden to easement is in writing in thedeed granting the property and must describe in detail or refer to an
Run w/ Land earlier recorded writing; easements do not needed to be included in subsequent deeds
(S/E)  not necessarily in the deed conveying the property but must be in writing and must be reported
the original grantor who created the easement must have intended the easement to run with land

16 | P a g e
 Property Synthesis
 grantor has to intend to bind future owners which is either clearly stated or implied
 when examining intent ask if it is really an easement or a license
subsequent owners of servient estate had notice of easement at time of purchase (3 types of notice)
a. Actual: subsequent owners in fact know about the existence
b. Inquiry: visible signs non-owner use require a “reasonable buyer” to investigate for
easements
c. Constructive: if deed conveying is recorded properly and in the chain of title
for a Benefit to Test: What is the intent of the grantor?
Run w/ land  Appurtenant: benefit is treated as if attached to a particular parcel and meant to benefit parcel
(D/E)  In Gross: benefit is NOT attached to particular parcel but meant to benefit the person not land

 non-possessory right of use granted in the land of another that is permanent and irrevocable; as a formal right, rather than a privilege, it grants
substantial interest in another’s land, may be subject to statute of frauds and may be transferable
 Easements grant a right of use as opposed to a right of possession and may be limited in scope by (1) time and (2) use
License: permission given by a landowner granting a non-owner an informal and revocable privilege to do things that would otherwise be
classified as trespass
LicenseEasement v.

License: Easement:
 No interest in the land is granted however the privilege of use  interests in land however within certain limited circumstances
may become irrevocable under certain circumstances may be removed
--Permission --informal --Revocable by Landowner --Right --Formal --Permanent --Irrevocable
--Not Transferable --Not --Not --Not Subject --Transferable --Inheritable --Devisable --Subject to Sta.
Inheritable Devisable Sta. of Frauds of Frauds
Major Issues Requirements:  Identifying the Formal Requirements (When are informal expectations recognized as a right or obligation)
in Easements: Ambiguities:  What evidence is acceptable when reviewing ambiguous language
Validity:  Substantive Requirement to Establish Validity
Modification:  How can a servitude be modified and under what circumstances?
Termination:  Can the servitude be terminated and under what circumstances?
Substantive Statue of Easements are considered a substantial interest in land and are subject to the Statute of
Limitations Frauds  Exceptions: Estoppel, Prescrription, Prior Use, Necessity
of No Affirmative  traditionally not allow creation of an affirmative obligation to do something on someone’s own land for the
Easements to benefit of other owners
Easement act on Own  Aff. easements are rights to do something on someone else’s land
land  Neg. easements are obligations not to do something on one’s own land

Easement

“Location Traditional rule:S/E owner cannot relocate easement without grantee consent; grantee
Change” can’t extend Easement
 RST: allows at the expense of S/E owner if:
 changes do not significantly lessen the utility of the servitude
 increase burdens on easement grantee in “use and enjoyment”
 or frustrates the purpose for which the easement was created
“Additional  Easement holder may prepare, maintain, improve or repair the way in a manner and to an extent reasonably
Investment” calculated to promote the purposes however it must be:
(1) confined to the area within the exterior border of the easement
(2) not cause an undue burden upon the S/E
(3) not cause an unwarranted interference with S/E owners independent rights
SCOPE:  3 Issues in determining if an owner is misusing an easement is based on the intent of the grantor
Determining o Note: It is Possible to engage in activity clearly contemplated by easement and still exceed the scope
the scope of 1) Kind of Use  Approach: What kind of activities were intended to be encompassed?
easement: Contemplated? o Broad View:(Majority) generally“any reasonable use” is permissible, it is
(Henley) not necessary that it be a purpose contemplated by grantor
This question o Narrow View:(Minority) rights of ways are limited to “specific use”it was
comes up when contemplated for at the time it was created
a use of the  Analysis:
easement and o What rights did grantor grant at time easement was originally granted?
the type of o Should easements be interpreted narrowly or broadly?
harm caused is o Should easement grantee be permitted to use easement in other way?
challenged (too o What result most parallels
broad of use,
o original intent of the grantor and grantee?
undue burden,
o Should alienability be a goal and what result most favors alienability?
improper
o If not alienability, then what should be the goal?
subdivision)
2) Heavy use constituting Is use so heavy constitutes “unreasonable burden “not contemplated by grantor?
an undue or  Approach: “Unreasonableness” analysis focuses on what a grantor intended
unreasonable burden at the time and if thedisputed use has gone beyond that intent; protect the
on S/E not property rights of the S/E holder
contemplated by  Analysis: What was the grantor’s intent?
grantor? o Look at (1) language of the easement then (2) outside evidence
o Grantee may not (1) cause undue burden on S/E or (2) interfere with

17 | P a g e
 Property Synthesis
independent rights of others with similar right of use
 Even legitimate use may need to be limited if causes undue burden
 If ambiguous the court will balance interest of easement owner’s “freedom to
develop property” vs. S/E owner’s “security from overly burden property”
3) Can the easement be  Appurtenant: (“divisibility”) appurtenant easement benefits entire D/E and is
subdivided? divisible among subsequent owners’ if D/E is divided
 In Gross: (“apportionability”) if exclusive can be divided
o RST: In gross can be divided unless (1) contrary to intent of easement
grantor/grantee or (2) unless unreasonably burdens the S/E
Types of Easements

Negative:  an easement that allows a non-owner the right to restrict the use of a Servient Estate
Affirmative  an easement that grants an affirmative right intended to be permanent or irrevocable which gives a right to do something on
someone else’s land
Types of A/E:  (a) Express or (b) Implied ((1) Prescription, (2) Estoppel, (3) Prior Use, (4) Necessity)
Types of (1) Servient Estate: (S/E) land that is burdened by the easement
Estates: (2) Dominant Estate: (D/E) land that is benefited by the easement
Decide: Appurtenant v. In Gross Apportionability Transferability
Appurtenant v.  Appurtenant: easement which benefits the owner of a parcel in the use and enjoyment of that parcel (D/E)
In Gross and is inseparable from the D/E
 In Gross: easement that is a personal right serving the holder which does not benefit its owner in the use
and enjoyment of his land but rather grants a personal right to use the S/E.

Express Easements
Must be created by written agreement (usually a deed or separate document referred to by conveying deed) between parties to secure enforceability
under statute of frauds because transfer of an easement is analogous to sale of a piece of property (“by grant” or “by reservation”)
Note:  “Easement by Implication” do not require written agreements to be enforceable
Affirmative Easement: Express Easement

o (1) prescriptive, (2) easements by estoppel, (3) prior use, (4) necessity, (5) constructive trusts
 No reservation of easement in a third party
Burden Benefit
Express v. Express: What the grantor intended to grant runs with the land if intended to do so
Implied  To person or parcel?  reasonably necessary for benefit
Implied: What the grantor intended to grant (1) Writing, (2) Intent, (3) Notice
 Rarely attaches to a person  Notice is most relevant for Burden-side analysis
Analysis: Must be  Sets forth the creation of the easement, parameters, location, purpose, use and must have been recorded in an original
“for burden in Writing deed; does not need to be recorded in all future deeds or deeds that convey the property
to run with 1. Scope: States (1) scope and (2) physical dimensions of easement (1)
the land”  Analysis:
a. Use is “of the kind contemplated”?: Defense “unanticipated development or tech change”
b. “Unreasonable Burden”?: Defense
2. Identification: States name of Parties and parcel to which it is attached
3. Recorded: Correctly recorded to provide notice and locatable in chain of title of the property
Intents of Intent that the obligation run with the land found in language of document conveying the estate
Parties  Phrase: “and to their heirs and assignees forever”
 No “Phrase” or “Ambiguous”: look to purpose and circumstances and “assume,” if an easement (1) benefits a
neighboring land and (2) touches and concerns land, is intended to run
Parol  Unambiguous language: parol evidence may NOT be introduced to determine the intent of the parties
Evidenc if the language of the instrument is unambiguous
e Rule:  Ambiguous language: parol evidence may be introduced to ascertain the intent of the parties if the
language of the instrument is ambiguous
Notice a. Actual: buyer was actually told about it or was otherwise made aware of it(Notice is most relevant for S/E—burdened)
b. Inquiry: When reasonable inspection merits investigation; Condition of premises indicates land burdened by easement
c. Constructive: Knew of should have known because the easement is recorded and locatable in a chain of title search

Transferability of Express Easement and Construing Ambiguous Language:

Green v. Lupo, (pgs. 350-352): Plaintiffs owned all the property, but now retain several acres and an easement across Defendants' land.
Plaintiffs developed their remaining property for a mobile home and some occupants use the easement as motorcycle practice run.  Defendants
block access with logs, etc. The Easement: Promised to "Don Green and Florence B. Green" [described the easement] "for ingress and egress
for road and utilities purposes." Ambiguity centered around whether the right was in gross or appurtenant (individual or runs with land)
Holding: Easement is interpreted to be an appurtenant based on parol evidence and P granted continued access to easement land.
Analysis: How to interpret easement
 Are the parties named and no other language to suggest that future landowers are use easement
 Look for dominant estate and the benefit bestowed on it

18 | P a g e
 Property Synthesis
 PRESUMPTION: Easements are appurtenant to some particular tract of land (personal easements are not favoredbc the benefit goes into
a person and not to the land, thus no dominant estate exists)? Why is there this presumption again??
 court must balance easement owner’s interests (freedom to develop) with servient estate’s interest (greater burden than originally
contemplated)
o security from being over burdened in way they could not or should not have to anticipate
o even a legitimate use can be limited

19 | P a g e
 Property Synthesis

Appurtenant Easements; Easements in Gross

In Gross v. Appurtenant
Distinguishing appurtenant easement from in gross requires analysis of intent of the grantor to have benefit run with a D/E, if written language is not clear:
 D/E may repair or improve easement to promote purpose for which it was created, so long as it does not causing S/E an undue burden (Cox)
 Ambiguity: generally will lead a court to conclude it is an appurtenant easement rather than in gross if:(1) benefit will be more useful to the
successor owner than the original owner, (2) the deed or (3) situation of the property indicates the benefit should run with the land
o Parol evidence: evidence outside the contract may be used when there are ambiguities in language of deed to discover intent of parties:
 Evidence to be considered: (1)situation of the property (2) situation of the parties (3) surrounding circumstances at the time of execution
(4) practical construction of the deed given by the parties by their CONDUCT or ADMISSIONS
 Policy Considerations: appurtenant will be favored because in gross potentially creates more uncertainty and obstacles to freedom of use
o Rationale: (1) maximized utility of land (2) facilitate use of land (3) simplify administration (4) make land more marketable alienable
Easement in EiGis a personal right and intended to benefit only the holder it was conveyed to and does not benefit its owner in the use and
Gross: enjoyment of his land but rather grants a right to use the S/E (belongs personally to grantee and is enforceable by grantee)
Benefit does Apportionable: Grantee of easement is allowed to apportion rights in the easement to others so long as the easement is exclusive,
not run w/ the If shown to be but equitable limitations still apply to the new apportioned user.
Analysis:

land and is apportionable Exclusive:  grantor (S/E owner) has no right to use easement with grantee
personal then must decide  therefore apportionable by grantee and can sell others further rights because:
(Burden runs if it is within the o grantee is not interfering with any rights the grantor (S/E) has
w/ the land scope of the o grantee may sell or lease use of the easement to others
however) easement o generally commercial in nature
(undue burden
Non-  grantor (S/E owner) reserves right to use and enjoy the easement granted with grantee
and intent of
Exclusive:  therefore it is non-apportionable for grantee because it would constitute excess competition
grantor)
with the S/E owner for the use or sale of the right (grantor retains an interest)
Transferable:  In Gross easement are transferable if commercial in nature (per se transferable)
 In Gross easements for non-commercial use are transferable if the parties intended the benefit to be
 manner by which an easement may be transferred depends on whether it is implied or express
Appurtenant easement that benefits the owner of a parcel in the use and enjoyment of that parcel (D/E) and cannot be separated or transferred
Easement: separately from the D/E; when the D/E is conveyed or transferred the right passes with D/E and is enforceable by future D/E owners
Benefit does  appurtenant benefits the entire dominate estate, not simply a portion (only limited by scope of use, reasonable limits)
run w/ the land Apportionable  Subdivision: an appurtenant easement benefits the entire dominant estate and is apportionable among
(AND Burden subsequent owners if the dominant estate is divided. (examine: “overuse” or “burden” to S/E)
runs w/ the Transferable:  Because an appurtenant easement is attached to the D/E the benefits enjoyed by the possessor of the land are
land) transferable with the D/E unless the easement is personal in its terms (Benefits cannot be severed from land)
 The burden transfers with the S/E when transferred
 manner by which an easement may be transferred depends on whether it is implied or express

Exclusive/Non-Exclusive Apportionable/Non-Apportionable
Henley v. Continental Cablevision, (pgs. 358-361)
Facts: Plaintiffs’ predecessors were granted right to construct and maintain electric, telephone and telegraphic service on all lots in subdivision and to
grant easements to other parties for this purpose. Trustee gave easement to Bell (phone) and to Union (electric) to set up lines. Continental got licenses
from Bell and Union to enter property to set up cable lines. Plaintiff sues Continental seeking injunction and damages for use of P’s property.
Issue:Whether or not an easement in gross is exclusive and therefore apportionable by the utilities.
Holding: Easement in gross was exclusive (of grantor participation) and so apportionable by grantee and the cable did not constitute an extra burden on P
and other easement owner may use easement for purposes not inconsistent with principal use.
Reasoning:
 When the grantee received an “exclusive” easement he may transfer it to as many other persons as he wishes as long as it is within the scope of the
easement
o Scope is determined by the kind originally contemplated by the easement, but modern advances in the easement are allowed if the
burden is not unreasonable
 The owner of an easement may license or authorize 3rd persons to use its right of way for purposes not inconsistent with the principal use granted.
 Just because easement is in Gross, the burden can still run with the land even though no D/E exists as long as the requirements are met to have
burden run with land
o Requirements for Burden to Run with Land: ???

Terminating Easements

20 | P a g e
 Property Synthesis

Modifying and TerminatingEasements:

Generally 1. Express Release: agreement in writing, in which both parties agree to release one another from benefits and burdens of easement
easements last 2. Terms:by the terms stipulated in the deedeither by timeframe, Purpose, etc. (however it could still be appurtenant)
forever unless 3. Merger/Unity of Title: if holder of easement owns both S/E and D/E (Rationale: D/E owner no longer needs right of use)
terminated by…
4. Abandonment: if owner of easement affirmatively indicated intent to abandon by taking some action that “clearly manifested the intent
to relinquish” an easement (mere non-use in insufficient) and stopped use of easement for a long period of time
5. Adverse: adverse possession or prescription by S/E owner or 3rd party (1) exclusive (2) substantially interfere with usage of easement (3)
for a statutory period of time (4) holder acquiesce or fails to act (5) constructs an enclosure
6. Frustration of purpose: demonstrate easement no longer serves intended purpose; impossible or unnecessary (Minority View)
7. Marketable Title Acts (statutory req’t to periodically re-record significant burdens every 30 or 50yrs; balancing interests of parties)

Cox v. Glenbrook Co.,(353-358):

Facts: The S/E (servient estate) granted the predecessor an easement over the estate to reach the predecessor's estate. At the time of the
conveyance, the predecessor used his estate as a single-family residence and used a one-lane dirt road to reach the residence. There was
another road through the S/E to the D/E (dominant estate), but the S/E blocked that road with a fence. The developers obtained the estate,
planned to subdivide it into 40 to 60 lots and widened the dirt road. The S/E sought to stop the expansion of the road.
HOLDING: The court found that
(1) the district court erred in restricting the easement to “single family home” uses where the wording of the easement unambiguously stated
"full right of use," So the division of the dominant estate did not prevent the use of the easement on the S/E.
(2) the developers could maintain, repair or improve the way without unduly interfering with the independent rights of others who also have
right to easement
(3) the developers could NOT, however, widen the way as the road was to remain the same width as the date of conveyance of the easement,
(4) the S/E could relocate the easement at their own expense according to the easement’s writting, and
(5) the court could not declare whether the proposed use of the way would cause an undue burden upon the S/E.
Analysis: Look to the intent of the parties! Via language of easement, actions, or what’s NOT included in writing or limiting language or the
benfit bestowed upon the D/E
RULE: Owner of an easement may fix and repair easement to promote the purpose for which easement was created, so long as it does not
causean undue burden on S/E
When terms of easement are unspecified must look to INTENT of grantor at time of granting.
1) confined to area of borders that existed when first granted?
2) will not cause undue burden upon S/E?
3) will not cause unwarranted interference?

21 | P a g e
 Property Synthesis

Prescriptive Easements

 To acquire an easement by prescription the trespasser must establish that they (1) used the property, (2) open and notorious (3)
continuous (4) adverse and hostile (5) statutory period. Additionally, some jurisdictions require a showing of (6) acquiescence however
none require that it be to the exclusion of the property owner. Under CoR claim both A/P and P/E may be brought simultaneously
 right to continue the “kind and amount of use” that existed during a statutory period rather than a “property title” as under A/P
 extent of use need not be proven w/ absolute precision rather only a general outline consistent w/ pattern of use throughout period
Claim of  generally means use is not permissive but rather engaged in by P/E claimant regardless of T/O’s wishes
Right  Though criteria is similar to “non-permissive” element interpreted to mean the “intent of the user” (Good v. Bad Faith)
 If a user of land did not intend to trespass but rather believed they had permission of T/O, this may defeat a P/E claim
 Defense: Permission will destroy a prescriptive easement claim
Elements: Burden of a. Majority View: clear and convincing evidence
Prescriptive Easements

Proof: b. Minority View: preponderance of evidence

Actual Use:  ordinary use to which land is capable and such as the owner would make of it
 Slight deviations in normal route won’t deny easement, only “substantial changes” defeat “definite
and certain” requirement
Open/Notorious:  acts sufficiently visible and obvious to place a reasonable TO on notice land’s used by non-owner
o Majority View: Open and Notorious use is presumed to be adverse/hostile
Exclusivity:  Exclusivity is not necessary as to T/O but claimant must be distinguishable from rest of the world
Hostile/Adverse: Open and notorious use will be presumed to be adverse(Defense: use was with permission)
 Color of Title doesn’t apply (constructive possession doctrine)
Permissiveness Majority View:most jurisdictions presume that use of another’s property is non-
permissive and property owner carries the burden of proving the contrary
Minority View: use by non-owner of another’s land is permissive if as a “neighborly
thing to do”local community custom is shown to allow such uses on another’s land
Continuous: Uninterrupted use for statutory period typically 15yrs (Occasional or sporadic uses fails requirement)
 Tacking is also appropriate under this element
Acquiescence:  Minority Split:T/O should have known of sufficiently visible use & by not acting granted permission
(2 views)  Minority Split: T/O was “actually” aware and failed to protect his/her right to exclude by suit
P/E v. A/P:  actual use  actual possession (demonstration of dominion)
Prescriptive Easement

Differences  
Adverse Possession

non- exclusive (possibly even w/ others & owner) exclusive

 open/ notorious  open/notorious
 adverse/hostile  adverse/ hostile
 continuous  continuous
 statutory period (typically equal to A/P)  statutory period
 Additionally: Acquiescence by T/O (owner did not
assert right to exclude by trespass action)
Commentary  Good Faith: Some argue that only good faith and bad faith trespassers should receive prescriptive rights because
they were merely mistaken about the boundary lines and did not knowingly infringing on their neighbor’s property
 Acquisition by public: the public cannot acquire an P/E because continuity and exclusion cannot be proven and there
is also a presumption that public use of private areas is permissive rather than adverse
Negative  Negative Easements cannot be acquired in the US prescriptively (contrast with English “Doctrine of Ancient Lights”)
Prescriptive Policy  P/E rights are recognize a grantee’s right to “use” by barring a T/O’s claims due to SoL tolling
Easements Rationale:  lawful use of one’s own property doesn’t place the T/O on notice to protect their property rights
 Neg. P/E would ultimately interfere unreasonably with the free development of land

Community Feed Store, Inc. v. Northeastern Culvert Corp., (pgs.207-210):

22 | P a g e
 Property Synthesis
 Slight deviations from normal route will not deny easement.
 Only substantial changes from normal route will be sufficient to deny element of actual USE (definite and certain line of travel).
 Extent of use can be proved with general outlines that show same pattern of use, absolute precision is NOT required.
 Tacking allowed: period of use by prior owners can be added to show that use of easement assumed from predecessors as part of land

Easements by Estoppel

 General Rule: Where a license is not a “bare, naked right of entry,” but rather includes a “right to erect structures” and acquire an interest in the
land in the nature of an easement due to construction of improvements thereon a licensor may be estopped from revoking the license for
whatever period is deemed just under the circumstances if licensee has exercised this privilege by erecting substantial improvements at a
considerable expense. No claim for adverse possession because owner has consented to licensee’s use. (establishes an “Irrevocable License”)
Oral Easements:  Where grantor intends to convey an easement but fails in the formality, court will look to grantor's intent and
find that an easement exists anyway
License:  Licensee is presumed by a matter of law to know that it is revocable at the pleasure of the licensor
o permission to go on the land of the licensor which is held to be revocable at the pleasure of licensor and at which point any
money expended in connection with entry upon the land is at the licensee’s peril
Easements by Estoppel

Analysis: License:  Must demonstrate that permission had been granted for “use of the land” in the manner used
o For access purposes, not a bare naked right of entry, more than just a right of entry
Reliance:  Licensee acted “reasonably” and to “detriment” in relying on permission granted (higher burden on grantor)
Elements

o look to social customs of the (1) time and the (2) land
Investment:  while grantor may not have meant to grant a permanent right the licensee in reliance invested
“substantially” with money, time or effort. “Necessity” however is not a requisite element
o Significant Terms: substantial, reasonable, reliance (good faith) – key concepts that color the analysis
Knowledge:  Licensor had “knowledge” or “reasonably expected” licensee’s actions in reliance on the license
o license was an essential part of their enjoyment of their property
Example:  license to use a pass-way where, with knowledge of licensor, licensee has in exercise of the privilege spent money in
improving the way for other purposes connected with its use on faith or strength of the license
Rationale:  EbE enforces presumed intent of parties and protects use of a license in a way that has created an interest
 Though the grantor’s intent may have been a revocable license from the outset a irrevocable license “may” be
granted to protect the licensee’s interests based on reliance in continuing right of access
Interest  Grantor’s Right to Exclude (interests in control of property access) vs. Grantee’s Reliance Interests (interests in continued access)
Balancing o Factors for Balancing: Formal arrangements set down in writing vs. informal arrangements embodying parties’ expectations
and founded in social custom (Which best effectuates intent of parties?) (1) Social Custom, (2) Reasonableness of Reliance,
(3) Implicit understandings, (4) Oral Reassurances, (5) Conduct of Parties, (6) Intent of Parties
o This analysis is all about what is fair, particularly to the party acting in reliance
May be grantee invests substantially in reasonable reliance on…
granted if:  …grantor wished to convey an easement though it failed to comply with the requisite formalities
 …easement granted orally
 …writing that does not comply with the statute of frauds requirements
 …an ambiguous deed reference
 …a grantor’s deception of the grantee (fraud)
“Possession” v.  Adverse Possession treats the T/O’s permission as a defense to a claim of a right to access but this gives rise to E by E
“Use” o Note: No statutory period required to establish an E.by Estoppel (Investment typically must be in the Easement)
 Law of Irrevocable Licenses’ (“Easement by Estoppel” or “Constructive Trust”) contrary moral premise is that if an owner opens
their property to others, their words or actions may create a reasonable expectation of continued access to the property.

Holbrook v. Taylor, (pgs. 321-323) The homeowners built a residence on property adjoining the landowners' property. With the permission of the landowners, the
homeowners used and maintained an access road owned by the landowners during the period of home construction. After the construction, the homeowners
continued to use the roadway to access the public highway. The court found that the trial court was fully justified in finding that the right to the use of this easement
was not established by prescription when there was no probative evidence which indicated that the use of the roadway was either adverse, continuous, or
uninterrupted. However, the court held that the evidence justified the finding of the trial court that the right to the use of the roadway had been established by
estoppel. The use of the roadway by the homeowners to get to their home from the public highway, the use of the roadway for the construction of the residence, the
general improvement of the premises, and the maintenance of the roadway, all with the actual consent of the landowners or at least with their tacit approval, clearly
established that the license to use the subject roadway could not have been revoked.
Right to the use of a roadway over the lands of another may be established by estoppel where:
1. license is more than a right of entry and
2. includes right to build structures and acquire interest in land in the nature of an easement by constructions and improvement,
3. the licensor may NOT revoke the license and restore his premises to their former condition after the licensee has exercised his privilege given by the license
and erected the improvements at considerable cost.

23 | P a g e
 Property Synthesis
Easements Implied from Prior Use and Necessity

General Rule:  An easement recognized under certain circumstances despite the absence of an express contract that is meant to effectuate the
intent of the parties as manifested by their conduct. The court may however determine that as a matter of public policy (Fair or
Efficient Allocation of Property Rights) an easement should be granted even though the actual intent of the grantor expressly
contradicts this inference
Aanalysis: Determining type of implied easement ask:
 Was common grantor at one point using roadway? NO, then no prior use. Is the use necessary? Yes or No.
o Easement necessity can be implied by manner in which land was severed
Types:  Equitable Exceptions to the Statue of Frauds: (1)estoppel, (2) prescription, (3) constructive trust, (4) prior use (quasi-
easements), and (5) easements by necessity
Easement by  General Rule: when a landowner, after using a parcel or adjoining parcels in a manner that derives a benefit from another in an
Prior Use: apparent, continuous, and permanent nature, conveys or transfers part, all the benefits and burdens that existed at the time of the
conveyance of transfer, though not reserved in the deed, are also imparted (Easement by “Grant” or Easement by “Reservation”)
3 Elements to Establish Pre-existing use in absence of express agreement
1. Unity of Title  Common ownership of both the “Dominant” and “Servient” parcels subsequent to a conveyance or
transfer which resulted in the separation of that ownership.
Analysis:

o At one time one party owned the entire property.

2. Use Prior to  Prior to conveyance or transfer, severing the unity of title, common owner used part of united parcel
Severance for benefit of another part, and this use was “apparent&obvious”, “continuous”, and “permanent”
“Notice” o Proof of the prior use is evidence that the parties probably intended an easement (“Notice”)

Easements by Implication

3. Necessary & “Reasonably” necessary and beneficial to use and enjoyment of parcel conveyed or retained by grantor
Beneficial o Test: (Common Law) reasonable necessity (benefit) not absolute necessity
(Jurisdictional  reasonable necessity: a use is reasonably convenient to the use of the land benefited
Split)  more than simple convenience but less than absolute necessity
 Factors: terms of conveyance, extended necessity, and manner of use prior to conveyance
 Must be slightly more necessary if π is renter or conveyor
o Test: (RST § 474) 8 factors from which an inference of intention to create or reserve an easement
may be drawn. [THIS IS NOT A CHECKLIST, SIMPLY THINGS TO BE CONSIDERED]
1. Is claimant conveyor or conveyee
 Greater necessity required of conveyor b/c had best position to protect interest
2. Terms of conveyance
3. Consideration given for conveyance
4. Whether the claim is made against a simultaneous conveyee
5. Extent of necessity of easement to claimant
6. If reciprocal benefits result to conveyor and conveyee
7. Manner in which land was used prior to conveyance
8. Extent to which manner of prior use might have been known to parties
Easement by  General Rule: when a landowner conveys a portion that is entirely surrounded by lands owned either by the grantor or the grantor
Necessity: plus strangers the grantee is found to have a right of way across the retained land of the grantor for ingress to and egress.
(E/N) Easement by Necessity is also implied in a deed when the landowner retains the inner portion, conveying to another the balance.
 If there had been unity of title a right of way by necessity may lay dormant through several transfers of title, appurtenant to D/E
Easement by Reservation: Easement implied because seller reserved for herself an easement across the property being conveyed
Easement by Grant: Easement implied because the buyer has been granted an easement benefiting the land he has purchased
Intent of  Restatement:Ultimate goal to effectuate intent of grantor. Reasonable necessity only need be established.
Grantor:
(Jurisdictional
o Analysis:
Split) 1. Unity of Title: Prior common ownership of Dominant and Servient estate
2. Necessity: “Reasonably” necessary for “use” and “enjoyment” of D/E (landlocked: ingress/egress)
3. Prior Use and Dormancy:No evidence of prior use is required and the easement may lie dormant
o However No E/N if:
(1) grantor intended to sell a landlocked parcelAND
Analysis:

(2) grantee knew parcel was landlocked

 Common Law: The ultimate goal is to promote the development of property by preventing property from
becoming landlocked and, therefore, taken out of the marketplace. Strict necessity must be established.
1. Unity of Title:Prior common ownership of Dominant and ServientEstate
2. Absolute Necessity: “Strictly” necessary for “use” and “enjoyment” of D/E (landlocked: ingress/egress)
3. Prior Use and Dormancy: No evidence of prior use is required and the easement may lie dormant
Note:  Owner of the S/E has a right to locate the E/N provided the location is reasonably convenient
 E/N lasts only as long as it is necessary and terminates upon cessation of necessity however can lay dormant
 No requirement of proof of a known existing use from which to draw an inference of intention
Rationale:  To effectuate intent of the parties, presumption grantor implicitly conveyed everything necessary for beneficial use
 To promote efficient utilization of property
o D/E holder would be impeded without the right and it is unlikely π would knowingly purchase inaccessible land
o Public Policy favors the maximum use of land and denying an easement would rendered land useless

24 | P a g e
 Property Synthesis
Easement by implication
Easement implied from a Pre-existing Use
Granite Properties Limited Partnership v. Manns, (pgs. 333-339)Plaintiff (grantor) filed suit to enjoin Defendants' (grantees) interference with
two easements by implication (on defendants' property) claimed by grantor for two separate and distinct parcels containing a shopping center
and an apartment complex on property owned by the P. Easement # 1: Provides access to the rear of the shopping center and enables trucks to
circle. Easement #2: Ingress and egress over a driveway which leads to a parking lot behind the apartment complex, driveway between units
would be unsafe. Here, grantor had easement by reservation: someone sells property and reserves an easement across it for themselves vs.
Easement by grant: buyer was granted an easement benefiting his parcel when he purchased the land. While the degree of necessity required
to reserve an easement by implication in favor of the conveyor is greater than that required in the case of the conveyee, even in the case of the
conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it. So
when apparent prior use supports an inference of parties' intention, the required extent of the claimed easement's necessity will be less than
when necessity is the only circumstance from which the inference of intention will be drawn. Use need only be "reasonably necessary" - not
absolutely-- for enjoyment and use. 

Easements Implied by Necessity

Finn v. Williams, (pgs. 339-340): 1895 Williams owned tract of land 140 acres. Conveyed 40 acres to Bacon. In 1937, Finns acquired title to the
40 acres. Defendant Williams inherited the remaining 100 acres.Finns prevented by Williams from accessing public road; claim easement by
necessity.
 Easements by Necessity can lay dormant through several transfers of title
 Easement by necessity is imputed by the presumption that a party conveys whatever is necessary for the property's beneficial use based
on a policy against permitting land to remain in perpetual idleness.

25 | P a g e
 Property Synthesis
SERVITUDES: Covenants
Express Covenants; Covenants Running with the Land


“Running with the Land”Express Covenants:

General rules which turn a private contractual interest into a property interest that runs with the land
Rule:  Requirement of privity is the distinguishing factors between the “real covenant” and the “equitable servitude”
o Restatement merges real covenant and equitable servitude because a privity issue can be bypassed by a good lawyer
 Original Covenantor is not legally responsible for actions of a subsequent owner of S/E if property is sold (not the case for
lease)
 covenant runs with the land only if (1) it is enforceable between convenantor and convenantee; (2) convenantor and
convenantee intended that it run with the land; (3) the convenant “touches and concerns” the land; and (4) the parties are in
privity of estate
Rationale:  Response to courts limitations on neg. easements that could be created by landowners created them
contractually
Affirmative  A covenant which requires that the S/E holder do something for the benefit of another
 rare, typically require payment of money (ex. Homeowner dues)
Negative  Real Covenants and Equitable Servitudes are both species of negative Covenants
 a covenant requiring the S/E holder refrain from doing something for the benefit of another (Restrictive
Covenants)
 effectively creates an end run around the laws denial of negative easements
 All obligations restricting what Property Owner can do with their land are “negative/restrictive” covenants.
Big Issues: Analyze benefit and burdened on each side of the following questions…
 How do we determine if future owners are benefited or burdened by the covenant?
 What remedies are available for a breach of a covenant?
 Interpretation of ambiguous covenants:
 Termination of covenants

Davidson Bros., Inc. v. D. Katz & Sons, Inc., (pgs. 367-376)RULE: Alongside the “touch and concern” element of covenants, ct. should consider the following eight
"reasonableness" factors:
(1) the intention of the parties when the covenant was executed;
(2) if consideration was paid in exchange for the covenant;
(3) whether the covenant clearly and expressly set forth the restrictions;
(4) whether the covenant was in writing and recorded;
(5) whether the covenant was reasonable concerning area, time or duration;
(6) whether the covenant imposed an unreasonable restraint on trade;
(7) whether the covenant interfered with the public interest; and
(8) whether changed circumstances now make the covenant unreasonable.

Summary, Whitinsville Plaza v. Kotseas, (pgs. 376-377): K sold land to Trust w a grantors promise not to use K’s remaining land in competition w/ T. T sold the
benefited parcel Plaza. K leased its land to CVS.Kotseas sold a parcel of land to Trust with a restriction in the deed that they would not operate a discount pharmacy in
the abutting land Kotseas retained - benefits the value of Trust’s land and burdens Kotseas land because it limits use - Kotseas leases parcel to CVS
 Rule against Benefits in Gross: If the burden of a covenant runs, the benefit of the covenant MUST run with the land.

 RULE: Presumption is that covenant will run with the land IF(i) it benefits future owners and (ii) touches and concerns the land
 ANALYSIS: Anti-competition covenant touch and concern the land because they limit the land and enhance the market value of the benefitted land

26 | P a g e
 Property Synthesis
Express Covenants: “Running with the Land” (Real Covenants)
Encompasses both remedies at law (money damages) and equitable relief and therefore is harder to prove
 Policy Analysis: Does the covenant unreasonably impede the alienability or free use of property?
Analysis:

Burden: generally touches and concerns land if the conventor can perform it only as an owner or possessor of land
Writing  restriction in document transferring property interest or prior recorded document in chain of title
 covenant is written typically a lease, declaration, plat, mat, deed or has a reference to a prior doc in chain of title
 Minority relax requirement enforcing oral representations or refuse to rigidly apply Statute of Frauds
Touch  Covenant that restricts touch and concern the land (pertain to the physical nature of the land)
and General 1. Does covenant exercises a direct influence (i.e. restriction) on occupation, use, or enjoyment of premises?
Concern Test: 2. Is it a reasonable restriction to be placed on the use of the Property? (Used for Intangible Covenants)
o Reasonableness: as a matter of public policy regarding the management of the land is it a fair
restriction and benefit on the use of the D/E and S/E (Reasonableness Test is used to limit a covenant)
Intent Intent for obligation to run with land is found in language of conveying document(“presumption of R/w/L” must be overcome)
 Phrase: “and to their heirs and assignees forever” ()
 No “Phrase” or “Ambiguous”: look to purpose and circumstances and presume that a covenant that (1) benefits a
neighboring land and (2) touches and concerns land is intended to run
 Typically burden will not “run” if the benefit is in gross
Notice:  Subsequent purchaser of the S/E must have notice of the covenant (req is intended to protect)
“Fairness” 3 Types of 1. Actual: buyer was actually told about it or evidence shows was otherwise made aware of it
Notice 2. Inquiry: if condition of premises indicates property was burdened by a covenant
3. Constructive: deemed to know if restrictions on property locatable by CoT search
Privity  must be privity between the promisor and promisee as well as promisor and assignee
Horizontal: regulates the relationship between the “original” covenanting parties (severance of C/O)
 Instantaneous Privity: (Majority) burden will run if one parcel of land has an interest in
another which was given simultaneous (in the exact moment) to conveyance of land interest and
in deed
o Excludes agreements btw neighbors/others that do not occur at moment the land is conveyed
 Mutual Privity: (Minority) 2 owners w/ simultaneous interest in a parcel of land (landlord-
tenant)
End run around Requirement: convey titles to lawyer and then lawyer conveys titles back to owners
RST Removes the difference and combines the rule, however it excludes:
Change 1. Agreement btw neighbors not part of simultaneous conveyance of other property
right
2. Agreement btw grantors and grantees not made at same time as the conveyance
of property interest burdened or benefited by the covenant.
Vertical: Strict Vertical Privity:(Majority)relationship btw original covenanting parties and subsequent owners of
(GOOD each parcel that requires unbroken chain of conveyances(sales; not a leases) of the:
EXAM  burdened land connecting original convenantor to current owner(No privity, then E/S)
SPOT: look  benefited land connecting original convenantee to current owner(No privity, then E/S)
for strict  therefore grantor can’t keep any future interest in property (i.e. cannot lease) (keeps
vert. nothing)
privity) Relaxed vertical privity: (RST) imposes burden on any future “possessor” of the burdened land and the
benefit of the covenant will be conferred on any future possessor of the dominant estate (RST)
Breaking  Adverse possession
the Chain:  Purchase with no notice of covenant (Bona Fide Purchaser)
Benefits: generally touches and concerns land if it increases a convenantee’s enjoyment of his land or land’s value (relevant in all areas of covenants)
Rule against comes up when you have a burden side; original covenanting party once it sells the land can no longer sue to enforce the
benefits “in covenant; Previous D/E owner does not have a right to sue to enforce a covenant
gross”:  Rationale: covenant was intended to benefit current D/Eowner not prior possessors so if parties are not using, it has
out lived usefulness as it pertains to those parties (RST, if Prior party shows a“ legitimate interest,” may enforce covenant)
 Policy: covenants restricting land use interfere with “free use” and “marketability” of property
 Exceptions: (1) Homeowners association or (2) if you demonstrate a “legitimate interest” (RST)
Writing  restriction in document transferring property interest or prior recorded document in chain of title (typically in a deed
or lease or has a reference to a prior doc in chain of title)
Touch and Covenant’s “benefit” must touch and concern the land by: (simply stated: Does it benefit the D/E?)
Concern  if it improves the use and enjoyment of the land (benefits side)
 Increasing the market value of the land
 If the benefit T&C the land it will be assumed to “run with the land”
General Test:  Burden must relate to the use of the land and obligate current and future owners
 Burden must legitimately benefit current and future owners of D/E
o Must increase the D/E “use” or “enjoyment” or “market value”
 Burden must run with the land and have been intended to run
Intent Intent for obligation to run with land found in document language of conveying estate (“to heirs and assignees forever”)
 No “Phrase” or “Ambiguous”: look to purpose/circumstances and presume that a covenant that (1) benefits a
neighboring land and (2) touches and concerns land is intended to run w/ land
Notice  Not necessary to establish a servitude runs with the land on Benefit side analysis (assumed)

27 | P a g e
 Property Synthesis
Privity  Horizontal privitynot required for a benefit (vertical only, “Horizontal” never listed separately b/c implied in burden-
side)

Equitable S/E owner purchases property with notice of restriction and is bound by good conscience to protect expectations of D/E owner
Servitude: Only equitable relief is available
rule against benefits in gross: comes up when you have a burden side; original covenanting party once it sells the land can no longer sue to
Express Covenants: “Running w/ Land” (Equ. Serv.’s)

enforce the covenant; Previous D/E owner does not have a right to sue to enforce a covenant
 Rationale: covenant was likely intended to benefit the current owner and not the prior possessors
 Exceptions: (1) Homeowners association or (2) if you demonstrate a “legitimate interest” (RST)
Burdens:
Writing  restriction in document transferring property interest or prior recorded document in chain of title
 covenant is written typically a deed or lease or has a reference to a prior doc in chain of title
Touch
and
Concern
Intent
Notice
Analysis:

Privity  No privity requirement: because it is considered simply a formality

Benefits:
Writing  restriction in document transferring property interest or prior recorded document in chain of title
 covenant is written typically a deed or lease or has a reference to a prior doc in chain of title
Touch and
Concern
Intent
Notice  Not necessary to establish a servitude runs with the land on Benefit side analysis (assumed)
Privity  No privity requirement: which is the rationale for limiting π to equitable relief
Real Covenant v. Equitable Servitude

Real Covenant(at law) Equitable Servitude(at equity)

Burden Benefit Burden Benefit
Writing Writing Writing Writing
Touches+Concern Touches+Concern Touches+Concern Touches+Concern
Intent Intent Intent Intent
Notice No notice (intuitive) Notice No notice (intuitive)
Privity (damages) Privity (damages) No privity(only injunction) No privity
 Horizo  No horizontal
ntal  Vertical
 Vertical
Remedies: Damages & Equitable relief Remedies: Equitable Relief only

28 | P a g e
 Property Synthesis
Implied Reciprocal Negative Servitudes in Residential Subdivisions - “Doing in the private sector what zoning does in the public sector”
STRATEGY: Draw a picture to account for all parties and all privity Q’s
Like other covenants it is a restriction on the use of land binding on successive owners but which is delineated by a common plan or scheme that applies to
certain well defined similarly situated lots and is meant to allow purchasers to mutually bind each other and thus benefit.
Created to bypass privity, intent, and notice requirements to bind both earlier and later buyers when (FACTORS) a COMMON GRANTOR (“developer”)
imposes grantee covenants but intentionally or inadvertently leaves those restrictions out of the titles of some of the lots
 Zoning laws resolve most justifications for housing developments, such asprevention of commercial development, except aesthetic requirements
 Rationale: Common plan applies to each owner because this is the intent of the developer/grantor and because of the buyers reliance on it
Implied Reciprocal Negative Servitudes : In Residential Subdivisions

 Balance: Excess restriction unreasonably limiting use of land vs. Increased property value due to reliance on restrictions
 Declaration: statement recorded with county clerk by the developer (prior to sale of any property) regarding which parcels are restricted, what
areas will be developed, and what restrictions should apply. Chain of title in this instance will not usually reveal the servitude
o A declaration constitutes and usually expressly includes a promise by the developer to restrict the remaining lots if sold or if retained
o Grantee Covenant: Describe common plan and lists lot covenants so buyers have notice (“constructive”) of restrictionsrecorded prior to purchase
o Grantor Covenant: when a developer promises to restrict the remaining lots when sold
Homeowner  may sue for enforcement because are mutually bound and benefited (mutually enforceable as part of ”common plan”)if
s the properties were all intended to be part of a common scheme or general plan
o Owners with restricted deeds may sue owners of unrestricted deeds because they are on constrc. notice
Developer If all lots have been sold:
 MAJORITY: may not sue because their legitimate interests are already satisfied (“rule against benefit in gross”)
Standing

 MINORITY (RST): developer may be able to sue IF: (1) declaration reserves right of developer to sue even after all lots
sold AND (2) declaration also includes power of H/O’s to amend declaration AND (3) developer has not “retained
unreasonable or imperious control” over artistic decisions of H/O’s after completion of subdivisions.
If not all lots have been sold:
 may sue if own a remainder of parcels unsold AND there is a “legitimate interest” in retaining control over the
subdivision
Homeowner may sue to enforce as homeowners’ agents long as declaration gives them authority (Exception to “R. Against Benefit In Gross”)
s Asso.  Majority: require a provision that home owners be able to change or take away homeowners power
Question 1.  Were properties all intended to be part of a common scheme or general plan?
Intent:  declaration (common plan) that provides buyers with notice of conditions, covenants and restrictions to subdivision
 Majority rule: Only parcels within common scheme are restricted and grantor’s intent to leave a tract or parcel out
of the common scheme is determinative.
Common Analysis: Is there a common plan or scheme?
plan or --Factors:  Restrictions listed in all or most deeds (greater than 50%) to property in the area
scheme:  Plat recorded that shows the property is included with others controlled by restrictions
 Declaration recorded maintaining restrictions are intended to be mutually enforceable
o Must be filed prior to selling individual lots
o Describes the area to be covered by the common plan and recites applicable covenants
 Restriction is in last deed (Rationale: gives an indication land remaining of grantor also
restricted)
Address intentAnalysis:

 Consistency in observance by owners in development and conformity written restrictions

language stating that restrictions are intended to run with the land
Factors defeating  Some deeds are unrestricted (Some have power not granted to others—doesn’t destroy but
a common plan: limits)
 The restrictions are not uniform
Note  Interpretation: (1) plain language should be given effect. However(2) if text is ambiguous read
narrowly in favor of the free use of property.
 If two sides enter a contract consisting of a covenant and a side breaches prior to sale of the land
there is a breach of contract rather than covenant and the factor analysis is not required
Question 2. Analysis: Was there notice? (Majority/Minority )
Notice  Burden on buyer to discover if common plan or scheme exists (3 Types are appropriate: Actual, Inquiry,
Constructive)
 Buyers of unrestricted lots are on constructive notice of covenants if in other deeds in vicinity sold by same grantor
o Burden is on purchaser, if aware there is a common developer, to perform CoT on properties in vicinity as well
o Majority: restrictions valid if grantor sold lots w/ restricted deed of same sort at same time in same area.
Buyer will  declaration on the parcel or in the chain of title
be bound if:  Majority View:(Constructive) bound by restriction though not in deed/CoT (must research neigh.
titles)
 Minority View: (Inquiry) requires the declaration to be recorded prior to the purchase
DiscriminatoryRacially

Racially discriminative covenants limit the sale, lease, or occupancy of real property to members of a particular race or exclude members of a
particular race or races are unenforceable under constitutional, statutory, and common law.
 14th Amendment ensures that no state action shall deprive any person of “E/P” of the law based on race or alienage
o State action cannot discriminate against a suspect class without showing the action is narrowly tailored to a compelling state interest
o Judicial enforcement of a private contract is state action, therefore grantor’s intention cannot be constitutional enforced by the State
 Private action/agreement is protected unless enforcing the private action will deprive another of their lawful property

Evans v. Pollock, (pgs. 395-99): General scheme or plan need not apply to the whole tract, may apply to all similarly situated lots

29 | P a g e
 Property Synthesis
 Owner can be held to a common plan or scheme he had notice of the restriction though it is not the deed or chain of title
 Purchase a parcel of land from a common grantor whom is selling other parcels and these parcels are related to one another on constructive notice
even if the restriction is not recorded in a deed.
 Majority View: bound by a restriction even though recorded after your purchase
 Minority View: not bound by a restriction if recorded after your purchase

Interpretation of Ambiguous Covenants; Changed Conditions; Undue Hardship;Statutory Regulations


Interpretation of Ambiguous Covenants

ambiguity or substantial doubt in the meaning of a restrictive covenants may either be read narrowly in favor of the free use of property
(Traditional) or be interpreted by focusing on the intent of the grantor (Modern)
 Restrictive covenants that discriminate against a group of people are unenforceable
Traditional: interpret ambiguous covenants in a manner that will reduce burden and increase the free use of land (read narrowly)
 should be construed against drafter (typically grantor or developer) limiting effect of restrictions on land
Rationale:  disfavored because they restrict free use of land and therefore should be strictly construed
Policy:  promote free uses of land, the rights of owners to be free from control, and free alienability of land
Modern: interpretation focuses on intent of the grantor
 Evidence: express language in a deed, declaration, and supplemented by extrinsic evidence to resolve ambiguity
Rationale:  restrictions may actually increase property value
 allow purchasers to mutually bind each other and thus benefit
Policy: Interest balancing: Freedom of Use v. Reliance interest on Restrictions
Restrictive covenants that discriminate against persons with disabilities may violate federal civil rights statutes,
including the Americans with Disabilities Act and Fair Housing Act.

Changed  Tough Test to Meet: Covenant will only be terminated if the purpose of the covenant can no longer be accomplished.
Conditions o The dominant estates no longer benefit from the covenant.
 restrictive covenant will not be enforced if a “fundamental change” has occurred in the intended character of the neighborhood
rendering the benefits underlying the imposition of the restriction incapable of enjoyment by D/E owners
o conditions have changed so drastically inside that enforcement will be of no substantial benefit to D/E
Analysis Focuses on the benefits sought to be granted to the D/E (Is there a policy reason either way???Reliance???)
 test is stringent and relief is granted only if the purpose of the servitude can no longer be accomplished
Test:  Is the change so radical that it defeats the essential purpose of the covenant?
Terminating Covenants

 Is the change so radical that it renders the covenant valueless (“benefit”) to D/E holder?
(Remember mutually enforceable)
Changes outside  The changed conditions doctrine is likely to apply to changes outside the restricted subdivision only
subdivision: when those changes have so adversely affected so many lots in the subdivision that enforcement is pointless
 Changes adjacent to a subdivision affect but do not eliminate benefits in a subdivision will be enforced
regardless (Examine benefits to the D/E)
Rationale: Inconsistent, unreasonable, and inequitable to enforce restrictive covenant that will not achieve benefit intended
Undue  TEST: covenant will not be enforced if the harm caused by the enforcement to S/E owner is greater by a “considerable magnitude”
Hardship than benefit to D/E owner
Doctrine o If hardship is great and benefit small the courts may refuse to enforce the covenant however if the benefit of the covenant is
substantial the courts are unlikely to apply the doctrine even if the hardship is substantial
o A mere change in economic conditions rendering it unprofitable to continue the restrictive use is not alone sufficient to justify
abrogating the restrictive covenant if other substantial benefits are accrued to the D/E owner
Analysis Focuses on the harm (burden) to the S/E (Undue Hardships; not changed condition) as judged against benefit to
other parcels (or D/E).
Statutory Some statutes require covenants to be actual and substantial benefit in order to be enforceable
Regulation  Marketability of Title Act
s

Equitable Defenses

those defense which based in equity may make a covenant unenforceable

Acquiescence:  …occurs if π has tolerated or failed to object to previous violations of the covenant by the owner of the S/E (acquiescence)
Abandonment  …occurs if π has tolerated violation of covenants of other restricted parcels in neighborhood covered by covenant
:
Unclean  …occurs if π has violated the covenant himself
Hands:
Estoppel  D/E owner orally represents to S/E owner that she will not enforce the covenant may be estopped from asserting interests in
enforcing covenant if S/E owner changes his position in reliance on D/E owners oral statement
Laches  If covenant has been ignored or breached for a substantial period of time court may find unexcused delay in enforcing the
covenant prompted investment in reliance on the failure to object to the violation and that enforcement of the covenant would be
unconscionable. (basically an unreasonable delay in enforcement; Fact specific, decided by judge)
Marketable  statutes that terminate restrictive covenants if they are not re-recorded after a specified period of time
Title Acts:

30 | P a g e
 Property Synthesis
Other Ways to Terminate (Terminating Covenants)

Language in If the language says it will automatic terminate in a certain amount of time
Instrument  have to periodically renew the covenant in cases of homeowners associations
Merger  if burdened and benefited estates come under ownership of same personcovenants will terminate (Common Ownership)
Release  parties may agree in writing to terminate the covenant or release the property from it (Express Release)
Prescription  open and notorious violation of the covenant without permission for the statutory period may terminate the covenant by
operation of the statute of limitations.

31 | P a g e
 Property Synthesis
Interpretation of Ambiguous Covenants; Changed Conditions; Undue Hardship; Statutory Regulations

Interpretation of Ambiguous Terms:

Blevins v. Barry-Lawrence County, (406-408): Defendant wants to open a group home for retarded people however covenants restrict use of parcel to
residential purpose and only “single family homes” allowed.
ANALYSIS:
o “Single-family home”clause applies to structures not to manner in which the property is used.(House will remain single-family even as a non-profit)
o Since operation of group home has the characteristics of residential purpose the ambiguity is interpreted in favor of defendant and group home
o Group homes cater to at-risk groups. Restrictive covenant/zoning that discriminates against a group of people are unenforceable.
 PubPol:

El Di, Inc. v. Town of Bethany Beach, (411-415): El Di applied for and was granted a license to sell alcoholic beverages at Holiday House.  Plaintiffs sue to
enjoin the sale based on a restrictive covenant prohibiting both the sale of alcoholic beverages on the property and on residential construction. Restriction
dates back to 1900. Covenant is unenforceable where there has been a fundamental change in the intended character of a neighborhood that renders
BENEFITS (to dominant estates) underlying imposition of restriction incapable of enjoyment.

Racially Discriminatory Covenants

Shelley v. Kraemer, (1948)(433-9) 14th amendment – yes state action, no enforcement of contract (This is private law, this provision intended to
discriminate). The Equal Protection Clause of the Fourteenth Amendment prohibits judicial enforcement by state courts of restrictive covenants based on
race or color.
Evans v. Abney, (439-46) Cy pres doctrine – no state action, application of state law (This is state law, the law was not crafted to pursue discrimination)
The cy pres doctrine is not applicable when the testator would presumably have preferred to have the whole trust fail if the particular purpose of the trust
became impossible to accomplish.

Land Use Regulation and Exclusionary Zoning

EXCEPTIONS TO ZONING LAWS

PRIOR NON- Non-conformance with a new zoning law
CONFORMING  TEST: creating an exception for prior non-conforming use
USES: 1. Owner must continue substantially same “kind” and “intensity” of use to remain exempt from otherwise applicable restrictions
2. Doubts are resolved AGAINST altering use
VARIANCES: seeking to get a variance on a zoning policy to be allowed to be an exception
 TEST: giving a variance exception
1. undue hardship that leads lot at issue with no effective use
2. undue hardship cannot be self-imposed
3. must be due to the unique characteristics of the lot
4. cannot cause a significant negative impact on character of area that would constitute a substantial detriment to zoning plan
VESTED RIGHTS business is operating some kind of housing development, business, home and then zoning ordinance changes – have they invested enough to get
DOCTRINE: around zoning?
 TEST TO FIND AN EXCEPTION UNDER VESTED RIGHTS:
1. Is the investment tangible?
2. Formally realizable?
3. Is this a concrete right that has already been vested or is it a future plan?

32 | P a g e
 Property Synthesis
NAACP v. Mount Laurel, 899-907INSERT BRIEF
Property: Interests
Historical Overview & Fee Interests
Wood v. Bd County Comm., (pgs. 516-518) (land devised to county “for the purpose of” veterans hospital) – Mere intentional, hopeful or precatory
language (“for the purpose of”) is not enough to create a FS Defeasible. W/o Express Conditional Terms, the court will default to a FSA in the interest of
efficiency.

Process of Analysis:
(1) Identify the freehold estate?
(2) Who holds a future interest in the property? (Grantor or 3rd Party Grantee)
(3) What are the rules that apply to the conveyance? (What has to happen for the future interest holder to get the property)
(4) Do the rules that apply to the conveyance violate Public Policy? (Should the conveyance by permissible?)

Present Estates and Future Interests

 Nonfreehold Estates: Also referred to as leaseholds, because they were not created by the “livery and seisin” are regulated by different rules
 Freehold Estates: One of two major categories of present estates originally created by livery and seisin and protected by the royal court of England
 Core Tension: grantor’s desire to control future of its property vs. society’s interest in promoting alienation and profitability of property
 Recurring legal questions when analyzing future interests; begin w/ “O” wishing to control future:Who can have property in future?What be done with it?
(1) Is the future interest enforceable? Policy Analysis: “giving grantor too much control over the property”; “facilitating dead hand control”; “taking
property out of the market”; “overly restricting alienability”; “overly restricting marketability”; “excessive concentration of ownership (w/ families)”
(2) Has the condition triggering legal question occurred yet?Policy Analysis: (none given)
Policy Analysis of an ambiguous “condition” will be analyzed with an eye toward encouraging the marketability and alienability of property:
o Does it create uncertainty? Too much uncertainty becomes a disincentive for people to invest and purchase property (“remote vesting”)
o Does it disrupt property ownership? The court prefers there be clear property ownership because of its impact on taxes and alienability
o Is the grantor’s expectation being fulfilled? This will encourage people to invest and engage in property transfer (consequentialist justification)
o Is the grantee being unreasonably restrained? Balance dead hand control against the grantee’s interest to develop and alienate the property
Rationale for  Dead Hand Control: Owners may seek to control property regarding who takes under the will long after they die
preventing limits future  Social Hierarchies: By imposing restraints on alienation and use owners will have wanted or unwanted effect of
interests: concentrating ownership in hands of certain groups and excluding others
Words of Purchase: Words which identify who is receiving the property (“TO WHOM?”)
 Purchase: signifies only that the person takes by deed or will, and not by intestate succession
Words of Limitation: Words that describe the kind of “property estate” created (“WHAT INTEREST?”)
Presumption  Conveyance transfers all rights owner possesses to grantee unlessconveyance suggests otherwise
 The law likes to know who owns the property, therefore a present possessory interest must always exist
o Conditional Interests: Fee Tail, Fee Simple Determinable, F/S Executory Limitations
o Grantor future Interest: “reversion”, “possibility of reverter”, or “right of entry”
o 3rd Party future interest: “remainder” or “executory interest”
 Remainderman: person w/ interest in property to commence at termination of present possessory interest
 Ambiguity: (Modern Law, Presumption Against Forfeitures) while intent of grantor is important, language of
conveyance is key, and the conditions which under a particular interpretation may lead to the disruption of current
property ownership will be strictly construed to lessen the likelihood of disruption and therefore will confer the largest
estate permissible under the instrument
o Precatory Language: language in a conveyance which does not have any legal significance, and because it holds
no legal significance when determining ambiguous language it will not dictate the terms of conveyance
 Even if intent is found in precatory language, the presumption is against ownership disruption though it
may only be caused by ambiguous “technical terms”
Transferability  Inter Vivos - transfer that is conveyed when the grantor is alive by gift or sale; reversions, remainders, and executor
: interests can be transferred inter vivos
Rules  Devise - the transfer happens the day the grantor dies; every state permits devises of reversions, remainders, and

33 | P a g e
 Property Synthesis
governing who executroy interests and almost all states permit devises of possibilities of reverter and powers of termination
will “take”  Descent - intestate succession, person died without a will; all future interest are descendible

Category Present Interest Future interest

Terms Creating Interest In Grantor In Third Person
Absolute To A (Modern Law: Sufficient) ----- ------
And her heirs
Determinable So long as; While; During; Until; Unless Possibility of Reverter ------
Condition Subsequent Provided that Right of Entry for: ------
On condition  Condition broken
But if  Power of Termination
Executory Limitation Until…, then to…; Unless…, then to…; But if…, then to… ------ Executory Interest
Life Estate For life (Common Law: “O to A”) Reversion Remainder
Fee Tail “to A for life” Reversion Remainder

34 | P a g e
 Property Synthesis

Fee Interests
Text, 513 (fee tail), Text, 508 (fee simple subject to executory limitation), Text, 515 (chart)
Fee Simple:

Is of potentially infinite duration, inheritable, and transferable

Present a present possessory interest; an immediate right to possess the land
Estate  Must be: (1) Fee Simple, (2) Fee Tail; (3) Life Estate; (4) Leasehold Estate
Absolute: largest possible aggregate of rights, privileges, powers, and immunities with respect to land in which it exists thus comprising
full ownership of land (default estate); potentially infinite, w/out limitations on inheritability, not divest
 Words of limitation are required at common law; w/out “and heirs” was a life estate; today presumption is for FS/A
 a present possessory interest without any associated future interest retained by grantor or vested in 3 rd party
 “To heirs”: interest of “A’s” heirs does not vest until A is deceased; while A is still alive “heirs” don’t have future interest
because the term is simply meant that it was a FS/A (there is no vested interest); “to heirs” is no more than a term of art
Purchase Limitation
Terms “To A” “And her heirs” “in fee simple”
Present Estate  Present possessory interest granted
Future Interest  No associated future interest retained by grantor or granted to third party by grantor
Present Defeasible: a present interest that will terminate at the happening of a specified event, other than the death of the current owner
Estate  All “Defeasible” F/S Estates create a future possessory interest in the property which is not held by the current possessor
 holder has no current right of possession though they have a possibility of possession in future
o this possibility is a present property interest that may be conveyed or devised before it becomes a possessory right
 inheritable, alienable but will terminate upon the happening of some event named in the original conveyance
o upon occurrence right of ownership passes to the owner of the future interest
 Court Preference: vested remainder → contingent remainder →executory remainder (WE DON”T LIKE TO DISRUPT ESTATES)
o If future interest takes away an executory interest court will treat it as a contingent remainder (“Presumption Against Forfeiture”)
5 Types of Present Interests

1. Possibility of Grantor retains the future interest and upon the happening of a stated event, the possibility of reverter
Reverter automatically becomes possessory (F/S Determinable;Grantor) (“at common law” it ceased when grantor died)
Adverse  holder of reverter faces risk that possessory title may come back w/out his knowledge, b/c
Possession retransfer happens automatically
 grantee may then acquire a F/S Absolute title by A/P
3. Power of Grantor retained future interest (“Right of Re-entry”) and upon occurrence of condition “may” enforce forfeiture
Termination of prior estate and recover possession of land or waive breach (F/S Subject to Condition Subsequent; Grantor)
:
4. Reversion: Grantor retained future interest b/c he gave away a smaller possessory estate than he held which takes effect
upon the natural termination of the prior interest (LE; FT; Contingent Remainder; Tenancy for Years; Grantor)
 Note: “contingent remainder” is not a property interest
 Note: a reversion is always a vested interest, although it may be divested
5. Remainder: Grantor conveyed a future interest to a grantee (Life Estate; 3rd Party Grantee)
 Always follows “politely” upon the conclusion of the prior estate, but does not cut-short the prior estate
o i.e. there is no condition to be violated or which may fail to be meet
5 Types: 1. Vested remainder absolute (O to A for life, then to B [and we know who B is])
2. indefeasibly vested remainder,
3. vested remainder subject to open (aka subject to partial divestiture),
4. vested remainder subject to condition subsequent (aka sbjct to total divestiture)
5. a contingent remainder (aka subject to condition precedent)
Two Part If either part is not satisfied it is an executor interest:
Test: 1. The interest must be capable of becoming possessory immediately upon termination of the
prior possessory estate
2. It cannot divest a prior interest
5. Executory Grantor conveyed a future interest to a grantee that cuts short a prior estate or follows a gap in seisen
Interest:  2 types; F/S Executory Limitations; 3rd Party Grantee
 cuts short prior estate: condition may be meet by commission or omission giving the grantee a right to vest
 they are never vested at the time of the conveyance
 E/I always followsa gap in seisen (possession or ownership). Executory interest corresponds w/FSSEL
1. Springing: an interest in favor of a third party in future that springs out of O our grantor, can either cut
short the prior state or follow a gap in seisen
o O to A, if A marries B: O possesses until condition occurs A’s EI Springs; i.e. gap in seisen until A
marries B (O has a reversion subject to executor limitation)
o O to A upon A’s marriage: O has a Reversion/SEL (though O currently holds prop), A has a Springing EI
 O to A as long as a gets married: O has a FS/SEL
o O to A for life, then to B if B graduates from law school
2. Shifting: an interest in a third party grantee, that shifts from one third party to another
o O to A so long as it is being used for a school during A’s lifetime, otherwise to B
 A has a FS/SEL, B has a Shifting EI
o O to A for life as long as it is being used for a school, otherwise to B

35 | P a g e
 Property Synthesis
 A has a LE/SEL, B has a Shifting EI, O has a reversion
o O to A for life, then to B, but if B dies before A, then to C: (B – VRSD) + (C – Shifting EI)
Determinable A present possessory interest which ends automatically upon the happening of a stated duration and transfers possession
back to grantor or heirs/devisees; occurrence of condition automatically shifts ownership back to grantor
 Words of Duration:words indicating ownership is to last for a certain time period (words indicating time)
 A/P SoL begins upon violation of condition; assumed violation is sufficient to satisfy “open and notorious” req’mnt
Purchase Limitation
Terms “To A” “So long as” “While” “During” “Until” “Unless
Present Estate  Present possessory interest granted
Future Interest  Grantor maintains a “Possibility of Reverter”(i.e. reverts automatically; vested)
Condition present possessory interest which ends at discretion of grantor upon occurrence of a stated condition, not certain to occur
Subsequent  Words of Condition:optional termination is legal distinction btw“determinable” and “condition subsequent”
 FS/D language is durational while FS/SCS language is conditional; FS/SCS language indicating a right of entry in “O”
Ambiguity:  Courts prefer construction least likely to cause forfeiture of title therefore condition subsequent
is preferred to a determinable estate (necessary phrase: at common law “a right of entry”)
Laches  If O sits on right of entry for too long to A’s detriment, O be barred from exercising right
Purchase Limitation
Terms “To A” “Provided that” “On condition” “But if”
Present Estate  Present possessory interest granted
Future Interest  Grantor maintains a “Right of Entry” (“O” must assert right to property, not automatic; vested)
Executory grantor conveyed future interest following defeasible estate to another grantee in same instrument and upon occurrence
Limitation of stated duration or condition estate subject to executor interest automatically terminates in favor of a third party
 The distinction between words of duration and of condition is irrelevant (resembles FS/SCS however for a 3rd party)
Purchase Limitation
Terms “To A” “Until…, then to…” “Unless…, then to…” “But if…, then to…”
Present Estate  Present possessory interest granted
Future Interest  Third party has been granted an “Executory Interest”

 FT is not equivalent to a FS/A because it is not assumed a blood line will continue forever which creates a future interest that is a reversion in “O”
 Only Delaware, Maine, Massachusetts, and Rhode Island still allow fee tails (carry –over from English Common Law)
Dis-Entailing a  “At common law” it could be willed outside to someone other than a lineal descendent
Fee Tail:  A must sell the land to someone outside of his blood line
Fee Tail

o Must be sold during A ‘s lifetime because it cannot be willed away

Modern Rule:  Fee tails are restricted in that a Fee Tail will be interpreted either: (Methods of Modification)
a. Some jurisdictions: “As if A was granted a FS/A” (simple convert a fee tail to a FS/A)
b. Some jurisdictions: “A” is granted a L/E and “A’s heirs” were given a FS/A (Compromise that allows 2 generations)
Purchase Limitation
Terms “To A” “And the heirs of his body” “And the male heirs of his body”
Present Estate
Future Interest O retains reversion (when and if the blood line dies out)

36 | P a g e
 Property Synthesis

Life Estates
Life Estates
An estate which lasts for (“measured” ) the life of the present holder and is followed either by a reversion in the grantor or a remainder in a third party
 owner has no right to determine who owns property on their death since ownership automatically shifts to the reversioner or remainder holder
 unless the conveyance provides otherwise, the estate is transferable however the transferee obtains what the transferor owned
 can be adversely possessed however the adverse possessor only possesses as much as the current owner
o under A/P rules O would not be able to expel A/Por until after “the measuring life ends” at that point the SoL will begin tolling
 law imposes upon a tenant obligation to return premises to landlord or remainderman at end of term unimpaired by the negligence of the tenant
 Waste: neglect or misconduct resulting in material damages to or loss of property
o ordinary depreciation of property due to age and not normal use over a comparatively short period of time is not included
Present a present possessory interest; an immediate right to possess the land (At Common Law, “O to A” designated a Life )
Estates Purchase Limitation
Terms: “To A” “for life,” “for as long as A lives,” “during his life”
Defeasible  Present interest with the possibility of a condition that would cut possession short and revert back to the grantor
Determinable: “O to A for life so long as A remains unmarried”
Condition Subsequent: “O to A for life, but if A does not use land for agricultural purposes, O retains right to reenter”
Executory Limitation: “O to A for life, but if B marries during A’s Lifetime, to B”
Per Autre Vie I. L/E owner transfers estate to a transferee and the transferee obtains an estate for the life of the transferor
o O conveys to B for the life of A (B has a life estate in which A is the measuring life)
o A, a life tenant, conveys her life estate to B (B has a life estate in which A is the measuring life)
II. If B dies, O will not receive the reversion until A dies; “Where will the property go?”
o Old Rule:When X dies and A is alive,1stperson to occupy property after B dies will be the general occupant
with a right to retain the property until A’s death
o Modern Rule: O can name in conveyance who will take the property in case B died before A; If O does not it
will go to B’s heirs until A dies
Responsibilities of  Duty to maintain the status quo:merely a possessor or trustee and as such carries duties to: (1) pay costs:
Present Interest interest on mortgage (principle paid by future grantee), taxes, insurance; and (2) not to commit waste (3 types)
Life Estate holder  Remedies: Injunctive relief, monetary, obtain a receivership a person who oversees the property
Types of  Voluntary Waste: Consists of acts of commission; some deliberate or voluntary destructive act that
Waste: damages the property; Waste by affirmative acts (felling trees though it is not a logging property)
 Permissive Waste: Failure of the tenant to exercise the ordinary care of a prudent man for the
preservation and protection of the estate; Waste by virtue of omission (failing to maintain property)
 Ameliorative Waste: Character of property is changed by L/E, value goes up but property is not
what grantee expects to receive (home replaced by a commercial development which increases
value but future interest expected home)
Future a future possessory interest in the property which is not held by the current possessor
Interests  holder has no current right of possession though they have a possibility of possession in future
o this possibility is a present property interest that may be conveyed or devised before it becomes a possessory right
Reversion: the property reverts to the grantor when current life estate ends (“A” dies)
“Grantor”  unnecessary to for conveyance to mention the reversion because O retains whatever property rights are not given away
Example: O to A for life
Present Interest:  present possessory interest granted in life estate holder
Future Interest:  future interest is retained by grantor of life estate (in the absence of a 3rd party grantee)
Remainder: The grantor designates a third party to obtain ownership when “A” dies; polite and patient, wait for prior estate to end
“3rd Party” naturally, don’t cut prior estate short but follow Life estates and tenancies for years that end naturally
 2 Types: (1) vested (2) contingent
Vested: Remainder belongs to an ascertainable person and there are no conditions precedent that must be satisfied
before the remainder is certain to become possessory other than the natural termination of the prior life estate
when the life estate owner dies
 Include all remainders that are not contingent remainders
Vested Absolute:  Remainder is not subject to change
 When L/E conveyed: (1) grantee alive and ascertainable and (2) unconditional
Example: O to A for life, then to B
Present Interest:  present possessory interest granted in life estate holder
Future Interest:  future interest is granted to a 3rd party upon term. of L/E
Subject to Open:  may be divided among persons born and those who may be born in future
“subject to partial  If L/E convey: (1) grantee named but possibly INCOMPLETE & (2) unconditional
divestment”  Potential additional group members have “EI/Shifting”
Example: O to A for life, then to the children of B (if B has any living children at
the time of conveyance to A but B also is alive to have more children)
Present Interest:  present possessory interest granted in life estate holder
Future Interest:  future interest is granted to a 3rd party upon term. of L/E
however this 3rd party group potentially could expand

37 | P a g e
 Property Synthesis
Rule of Convenience  Class will be closed upon termination of prior estate
 parties will possess estate at “A’s” death and not have to
share property with other “potential” members
Subject to  may be destroyed by an event that occurs after the original conveyance
Divestment:  If L/E conveyed: (1) grantee named and complete but (2) CONDITIONAL ftr interest
“subject to total  Because B’s interest can be completely lost, O has EI
divestment” Example: O to A for life, then to B, but if B has flunked out of law school, the
property shall then revert to O
Present Interest:  present possessory interest granted in life estate holder
Future Interest:  interest is conditionally granted to a 3rd party upon term. of L/E
and depends on the occurrence of some condition
Note:  may be functionally equivalent to some contingent remainders
Example: O to A for life, then to B if she survives A, otherwise to C (Con.Rem.)
O to A for life, then to B,but if B does not survive A, then to C (S/D)
Contingent Vest only when the remainderman has fulfilled the condition to take
A contingent remainder vests only when the condition that makes it contingent disappears:
 If A died and B doesn’t satisfy the remainder:
o (O – FSSEL) + (B - Springing EI)
 O to A for life, then to B’s first child:
o (A – LE) + (B’s 1s child – CR/FSA) + (O – reversion)
 O to A for life then B’s children to reach 18:
o (A – LE) + (B’s Children born > 18yrs – CR/SPD) or (If Unborn – Shifting EI)
 O to A for life then to B’s children in FSA:
o (A – LE) + (B’s children “all unborn” – CR/FSA) or (B’s Children “ at least 1 born”– VRSPD& Shifting EI
“unborn”) + (O – reversion)
Alternate/CR (ACR): Grantee’s future interest is (1) present to someone and (2) future to another
 O to A for life, then to B if B gets married. If B not marry, to C:
o (A – LE) + (B – CR) + (C – ACR) + (O – Reversion)
 2 ifs ACR: O to A, then to B. But if B marries, to C:
o (A – LE) + (B – VRSTD) + (C – EI/Shifting) + (O – nothing)
1. Event: remainder takes effect only upon happening of an event that Is not certain to happen
Example: O to A for life, then to B if B has graduated from law school
 Remainderman conditioned by an event: (A – LE) + (B – CR/FSA) + (O – Reversion)
2. Person: remainder goes to a person who cannot be ascertained at the time of initial conveyance
Example: O to A for life, then to the children of B (If B has no children upon the conveyance to A)
 Remainderman has not been born:(A – LE) + (B – CR/FSA) + (O – Reversion)
O to A for life then to B’s first child to reach 18
 Remainderman age requirement: (A – LE) +(B – CR/FSA) + (O – Reversion)
O to A for life then to A’s widow/heirs
 Term of Art: A’s widow/heir is not fixed until A’s death (Heir or Widow = CR/FSA)
Note:  remainder will become possessory when property shifts to remainderman
 remainder may be contingent on both a conditionally “event” and “person” separately
 contingent remainders may be functionally equivalent to some V/R Sbjct to Divestment
Rule of Convenience: a contingent remainder closes when remainder becomes possessory

Edwards v. Bradley, 521-523

A conditional limitation imposed on a life estate is valid. (Bradley [P] brought suit against her mother’s estate seeking to enjoin the sale of
certain property devised by her grandmother because property was left to mother in life estate on condition it not be sold.)

Moore v. Phillips, 553-556

A defense of either laches or estoppel will not bar recovery in an action for permissive waste when no party was prejudiced. (Moore [P] and son
sued as remaindermen to recover damages for the deterioration of a farmhouse resulted from neglect by the life tenant, P’s mother)

38 | P a g e
 Property Synthesis

Future Interests

Rules Affecting Transfer of Property – (See Present Estates and Future Interests Example Mindmap)

Rules and Regulations:

Regulation of Future Interest


Rules Applicable to Contingent Remainders Modern Modifications to RAP ConveyancesInterpretation of Ambiguous

1. Rule Against The Creation of Since law will not allow the creation of a new estates the court will either (1) fit the conveyance
New Estates: into the most closely analogous existing estate (2) or default to a basic presumption that unless
clearly stated otherwise the grantor is conveying an interest equal to their entire interest
2. Presumption Against  Law does not like uncertainty and disruption in ownership
Forfeiture: o Example: between a FSD and FSSCS; FSSCS prevail because avoid loss and ownership disrupt
3. Doctrine of Merger: When a L/E Grantee holds the present and future interest, the conveyances may merge to give the
grantee a FSA, however this doctrine cannot be applied if there is an intervening vested interest
 This doctrine is specifically intended to resolve issues of alienability
 O to A for life then to B (B is alive and known): (A – LE) + (B – VRFSA)
o A sells LE to B, B interest gets combined and turns into a fee simple absolute
 O to A for life then to B for life then to C: (A- LE) +(B – VRLE) + (C – VRA)
o If A sells LE to C, C can’t combine future interest because B has a vested intervening interest
 O to A then B for life if B has married, then to C: (A – LE) +(B – CRLE) + (C – VRA)
o If C buys A’s interest, wipe out B’s contingent remainder as long as it has not vested yet
 doctrine of merger allows you to destroy intervening interest if they are not vested

1. Wait and See Test The courts will not hold that a future interest violates the rule until the perpetuities period has passed and
(majority): they are certain that the future interest has not vested within that period
2. Cy PresDoctrine: The equitable doctrine under which a court reforms a written instrument as closely to the donor’s
intention as possible, so that the gift does not fail; e.g. constructing charitable gifts when the donor’s
original charitable purpose cannot be fulfilled
 Analysis: Is the intent general or specific as to the term to be modified?
3. Uniform Rule Against Validate future interests that would otherwise violate the traditional rule if the interestvest anytime within
Perpetuities: a 90 year waiting period. At that point it will be converted to a FS/A, resolves issue of remote vesting.
4. Statutory Cut-Offs: Some states cut off interests in the grantor following defeasible fees if the condition does not occur within
a stated time period after the initial conveyance;
 Options to purchase are exempted from the rule of perpetuities as long as its purchased for value
5. Marketable Title Acts: Some states require that future interests be recorded periodically in the local registry of deeds to remain
valid and enforceable
1. Doctrine of Modern Rule: (Majority) contingent remainders are indestructible; if not vested until preceding estate ends, B
Destructibility of - EI (usually, springing) for duration of his life, and O - Reversion FSEL
Contingent Remainder:  O to A for life, then to B when she reaches 21: (A – LE) + (B – C/Remainder)
o B is 19 upon A’s death, O has a Reversion/S to Divestment and B has a Springing/EI
Common Law: (Minority) contingent remainders are destroyed: (1) if they did not vest before the preceding
life estate ended or (2) by merger (L/E and contingent remainder came into the same hands)
 O to A for life, then to B when she reaches 21: (A – LE) + (B – C/Remainder)
 If B is not 21 upon A’s death, B’s interest is destroyed and O has a reversion
Note: Common Law Rule never applied to Equitable Estates, thus C/R in a trust would never have been
destroyed by the termination of the preceding estate
2. Doctrine of Worthier O cannot convey property to his own heirs during his lifetime (rule of construction, not a rule of law)
Titles: (shady transfer  O to A for life, then to O’s heirs: (A – LE) + (O’s heirs Remainder converts to reversion in O if O is alive)
to grantor’s heirs)  simply converts to reversion in O rather than O’s heirs if O is still alive
(RULE OF  intent of grantor is important in this situation because it is a rule of construction not of law
CONSTRUCTION – open
to argument of good
faith by grantor)
3. Rule in Shelley’s Case: Interest in grantee today with a remainder in grantees heirs will convert the remainder in grantee’s heirs into a
(shady transfer to remainder in grantee, in effect merges L/E and remainder to create a FS (merger doc.)
grantee’s heirs) (RULE  O to A for life, then to A’s heirs: (A – LE) + (Heirs – CRA)  (A – FSA)

39 | P a g e
 Property Synthesis
OF LAW – Automatic)  Fix this by rewriting it: O to A for life, then to A. Then Merger applies and A has FSA.
 However: O to A for life, then to B for life, then to A’s heirs: (A – LE) + (B – VRLE) + (A – VRA)
 B’s vested interest prevents merger
 Do not look at grantor’s intent simply correct irregularity in language

Johnson v. Whiton, (528-529):

Grantors may not create new types of inheritance, and any attempt to do so will result in full fee being conveyed. (Johnson [P] claimed a deed
to him was invalid because Whiton [D], having received only a qualified fee from her grandfather’s will, could not convey a fee simple absolute.)

Texaco Refining v. Samowitz, (545-546):

An option to purchse contained in a commercial lease, at least if the option must be exercised within the leasehold term, is valid without regard
to the rule against perpetuities. (TR [P] exercised an option to purchase commercial property contained in a lease of property leased to D.
Other successors in interest to lessor refused to transfer property, P sues for specific performance.)

40 | P a g e
 Property Synthesis

Restraints on Alienation

Restraints on Alienation
General  A condition placed on a property that limits the freedom of a property owner. While total restraints on FS are typically unenforceable, partial
Rule: restraints (limited in time or to whom it can be sold) may be enforceable if there is a potential legitimate interest (more likely to enforce if the
clause itself requires reasonableness, however the law still require a demonstration of reasonable relationship btw action and purpose)
o Homeowner Ass’n will be required to show restraint (1) facilitates the transfer of property, (2) increases the value of the property, (3)
facilitates marketability when owners wish to alienate (Right of 1st refusal, duty to (1) pay fair market value in a (2) timely manner)
 Total restraints on alienation of FS interests in any form are uniformly held “repugnant to the fee” at common law
o However this is balanced against the positive effects to the value of a property interest by certain restrictions
 Option to Purchase: enforceable if (1) limited in time AND (2) respect and secure the right of the seller to receive fair market value
 Different rules for LE:Can place more restrictions upon them because it is understood to be limited in nature
Rationale: 1. Promotes efficiency in the use of property by allowing property to shift to a more valued use
2. Promotes liberty by freeing current owners from undue restrictions imposed by past owner
3. Promotes equality through dispersal of ownership and prevents arbitrary discrimination
4. Alienation can enhance the value of the property
Types of Disabling: Directly forbid owner from transferring interest in property, no one can wave restraint
Restraints  Held null and void
o violates the rule against benefits ingross and is unenforceable
Promissory: Covenant by which grantee promises not to alienate the interest in the property
 Generally held null and void (unenforceable) however not as bad as disabling
o violates the rule against benefits ingross and is unenforceable
 most courts uphold total restraints on alienation of LE if in form of “promissory”
Forfeiture: Provides a future interest that will vest if owner attempts to transfer the interest
 Generally held null and void (unenforceable) however not as bad as disabling
o violates the rule against benefits ingross and is unenforceable
 most courts uphold total restraints on alienation of LE if in form of “forfeiture”
STANDARDS 1. Common  Any complete restriction on alienation of property would be deemed to be void as “repugnant to the fee” i.e. goes against
TO APPLY Law: the very nature of a Fee Simple because it signifies that the owner has all the sticks in the bundle
ON EXAM: o A restriction that would require “grantor consent” for a grantee to sell a FS property is “repugnant to the fee” b/c it is a
complete restriction on grantee’s right to alienate without any manner by which grantee could circumvent restriction
2. Modern Law Reasonableness Test: Unreasonable restraints will be struck down (Analysis)
1. What type of property interest is being conveyed? Who is it that’s getting the interest?
o Interest?: FS? Leasehold? LE?
o Who?: look to who it is that gets the interest…
 Is for charitable/non-profit or for profit use; Is it a standalone home or a Condo
 Is it a right of first refusal based on a fiduciary duty:(1) rationally related to the protection and preservation
of proper operation of the property(2) Are you doing so in a fair and non-discriminatory manner
2. What is the duration of the restriction?
o Analysis: Is the restraint for a reasonable amount of time
3. What are the consequences of restraint?
o Analysis:Forfeiture? Fair market purchase? Sanctions?

Horse Pond Fish & Game Club, Inc. v. Cormier, (451-453)

A restraint on alienation is valid only if it is reasonable in light of the justifiable interests of the parties. (P [Horse Pond] transferred an
unrestricted property to a third party who then transferred the property back to P with a restraint on alienation.)
Northwest Real Estate Co. v. Serio, (453-454)
Covenants retraining a grantee’s ability to sell property are invonsistent with a grant of fee simple and are thus invalid. (NRS [D] prevented the
sale of property to Serio (P) based on a covenant restricting the alienation of the property.)
Riste v. Eastern Washington Bible Camp, Inc., (454-455)
A restrictive restraint on the sale of fee simple title is a violation of public policy. (Riste [P] bought land in FS but title had restriction that he
could only sell to a member of Assembly of God church. P wanted to sell his property in violation and sues to remove restriction.)
Aquarian Foundation Inc., v. Sholom House Inc., (455-458)
A clause in a condo’s declaration permitting the association to arbitrarily (or “capriciously or unreasonably”) withhold its consent to transfer,
when that consent is required for sale, constitutes an unreasonable restraint on alienation. (Condo owner sells condo to AF [P] w/o consent of
Sholom House’s [D condo assn] board of directors. D sues to set aside conveyance. Ct finds preemptive offer clause illusory b/c doesn’t come
into effect until after sale takes place.)
Wolinsky v. Kadison, (458-460)
No person shall be denied the right to purchase or lease a unit because of race, religion, sex, sexual preference, marital status, or national origin
(TEST FOR REASONABILITY of exercise of right of first refusal: 1. Is reason for refusing rationally related to the protection, preservation or
operation of property/association? 2. Was power exercised in fair/nondiscriminatory manner?). (D [BofD] for a condo complex exercises its
right of first refusal over P’s offer to purchase allegedly because she was an unmarried female w/ children.)

41 | P a g e
 Property Synthesis
Trusts and Cy Pres Doctrine

Cy Pres Doctrine: A court will carry out a settlor’s charitable intent so far as possible by authorizing that the trust income be used for some other charity
 Trust: a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary);
grants a right to beneficial enjoyment of property to which another person holds the legal title.
 Occurs when a settlor (1) establishes a trust and has a (2) general intent to contribute to some form of charity, and the (3) particular
charitable purpose identified by the settler becomes (4) impracticable or impossible to achieve
Analysis:  Court must determine whether the settler intended to was general or particular
o Did grantor intended to aid only a particular charity?
o Would grantor have intended trust income to benefit another charity if first beneficiary ended its existence?
Grantor’s intent was general: determine if an alternate charity (chosen by trustee) is of a kind settlor would have wished to benefit
Grantor’s intent was specific: determine to whom trust principal belongs if settlor’s charitable intent is impossible to accomplish

42 | P a g e
 Property Synthesis
Property: Concurrent Ownership and Family Property
Tenancy in Common; Joint Tenancy

Tenancy in Common and Joint Tenancy

Property owned by more than one party at the same time and that is structured in a particular way by both law and contract
Concurrent Ownership:

 Courts are reluctant to micro-manage the kinds of decisions that must be made btw co-property owners because partition is always an option
 2 types of residential property ownership
a. Separately owned and managed: (1) condominiums, (2) cooperatives
b. Jointly owned and managed: (1) tenancy in common, (2) joint tenancy, (3) tenancy by the entirety
 Joint tenancy is functionally similar to a life estate while a common tenancy is like a fee simple absolute (some jurisdictions allow a Joint
Tenant to transfer property to themselves to create a Tenancy in Common)
 presumption that if two or more people are conveyed property and are unmarried to each other it is a tenancy in common
 Marital property is regulated by a separate set of rules

Form of concurrent ownership in which two or more persons own same property at same time, each with a right to possess the entire property, and
each is legally obligated to share certain benefits and burdens of ownership (default tenancy)
 Each tenant in common of real property may use, benefit, and possess entire property subject only to equal rights of cotenants
 Because interest not need to be equal deed must specify interest percentage of each owner or assumed to have equal shares
 No “right of survivorship”; if a tenant in common dies, the ownership interest passes only by will or by intestate succession
 Tenants in common have to receive their interests at the same time, in the same devise.
Property Fractional  right of possession is undivided but if sold profit divided in accord w/ fractional interest
Interest: Interest  Ownership interest are fractional shares called “undivided interests”
 each share has the right to possess the whole property
 percentage of share only becomes important when property sold, refinanced, etc.
 each share will only receive its equivalent fraction of the value if sold
Rights:  Each fractional interest is alienable, inheritable, and devisable
 Grantee of interest receives exactly what the grantor owned unless the grantor has sold less than their
Tenancy in Common(default)

full interest
 right to sell, mortgage, lease interest in property without consent from the other cotenants and it does
not end the tenancy in common
Formalities: 1. Time: No requirement to share unity of time, however existence of unity will not prevent creation of a tenancy in
common
1. Title: No requirement to share unity of title however existence of unity will not prevent creation of a tenancy in
common
2. Interest Unequal interests in the property is possible
 if grantor is silent the presumption is that parties hold equal shares however proof of contrary intent or
unequal payment of purchase price can rebut this presumption
3. Possession: All joint tenants have right to possess all of property
Benefits: Possession:  Each co-owner has right to possess entire parcel, therefore If one lives in property and other does not, tenant
in possession won’t have to pay rent to non-possessing tenant b/c he is only doing what he is entitled to do
Lease:  Co-owner has a right to lease his undivided interest to a 3rdparty therebygiving renter a right
to control the whole; co-owner has right to portion of the rent equivalent to his interest
 Lease can survive the death of the lessor
Exception to Ouster: Explicit act where one co-tenant wrongfully excludes another co-tenant and thereby must
Possession: pay the ousted co-owner rent because they are being improperly denied there right to occupy
 Rent would be equivalent to the interest the ousted party has in the property
Constructive Ouster: ouster without physical act or fault has by the nature of a condition of the
property created an ouster of the co-owner and therefore the ouster must pay ousted co-owner
 Ex. Apartment too small → therefore party excluded receives $ equivalent to interest
Burdens: Basis Expenses:  Mortgages, insurance, and tax must be paid in proportion to their fractional interest
Major Improvement:  No duty or requirement to share unless agreed because once property is sold
improvement can be accounted for in division of profit
Maintenance/Repairs:  Potentially must be shared evenly
Remedies: 1. Accounting  Bring proceedings, partition or contribution, to require co-owner to pay their portion of expenses,
assessment of who paid what or owed what over a period of time
2. Partition  Negotiated: co-tenants decide to change the ownership structure (voluntary)
 Judicial: court ordered, parties cannot resolve in which property is either (1) physically divided or (2) force
sale of the property and divide proceeds according to fractional interest at which point claims will be offset
 Partition in kind: property is physically divided along interest with each party receiving respective amount
 Partition by Sale: property is sold and each party receives respective interest from the proceeds
3. Contribution  Co-owner in exclusive possession of premises bears entire burden of expenses unless value of occupation is
more than market value in which CoA for “Contribution”

43 | P a g e
 Property Synthesis
Form of concurrent ownership in which two or more persons own same property at same time, each with a right to possess the entire property, and each
is legally obligated to share certain benefits and burdens of ownership (default tenancy); (at common law not as easily destroyed as in Modern Law)
 distinguished from “tenancy in common”: (1) title was created by single will or transfer, (2) expressly declared in the will or transfer to be a joint
tenancy, and there is a (3) “right of survivorship” and each (4) fractional interest is equally divided.
 if cotenant dies, interest equally split among remaining joint tenants; if all die at same time treated as tenancy in common and interest goes to heirs
Note:  if any formality fails property reverts to default estate (“tenancy in common”) (some states don’t have “Joint Tenancy”)
 Ambiguity: If the joint tenancy is ambiguous it is interpreted as a tenancy in common
Property Fractional Ownership interest are fractional shares called “undivided interests” because each share has the right to possess the whole
Interest: Interest property
Rights:  fractional interest are not alienable, inheritable, or devisable; when co-tenant dies his share goes to the surviving co-
tenants and is equally divided (“right of survivorship”)
Lease  Split: jurisdictions disagree as to whether a lease may severe a joint tenancy
o Majority:Lease won’t sever joint tenancy; leasee has tenancy per autre vie that expires on joint tenant dies,
preserves survivorship and encumbrances placed by deceased joint tenant become unenforceable against
surviving joint tenants
o Minority:
Formalities: Four unities of time, title, interest, and possession are NECESSARY.
1. Time  interest has to be created at the same moment in time
2. Title:  all joint tenants acquired title by the same instrument
3. Interest:  All joint tenants have equal fractional interest in the company.
4. Possession:  All joint tenants have right to possess all of property.
Joint Tenancy

o Note: if deed restricts possession to a joint tenant then it cannot be a joint tenancy
Benefits: Possession: RULE: Each co-owner has right to possess entire parcel, therefore If one lives in property and other does
not, tenant in possession won’t have to pay rent to non-possessing tenant b/c he is only doing what
he is entitled to do
Lease:  See above.

Exception to Ouster: Explicit act where one co-tenant wrongfully excludes another co-tenant and thereby must
Possession: pay the ousted co-owner rent because they are being improperly denied there right to occupy
 Rent would be equivalent to the interest the ousted party has in the property
Constructive Ouster: ouster without physical act or fault has by the nature of a condition of the
property created an ouster of the co-owner and therefore the ouster must pay ousted co-owner
 Ex. Apartment too small → therefore party excluded receives $ equivalent to interest
Burdens: Basic Rent RULE: if fair market value is greater than basic expenses, possessing co-owner pays ALL basic
Expenses: expenses.
Remedies: Partition destroys the joint tenancy, no right of survivorship
 Voluntary: co-tenants decide to change the ownership structure (negotiated)
 Judicial: court ordered partition if parties cannot resolve in which property is either (1) physically divided or (2)
force sale of the property and divide proceeds according to fractional interest at which point claims will be offset
o Question of “Contribution”: if a co-tenant in sole possession of property pays more than a fractional share on
interest etc. will not get contribution if value of benefits exceeds money he is paying.
o Amount due is offset by Fair Market Value of benefit received
Severance  sell property, destroying unity of time and title; happens only between selling owner and remaining owners
(destroys joint tenancy as related to portion sold and not to the remaining owners)
o newcomer is not joint tenant however B and C remain joint tenants
o Does not change relations of remaining owners among themselves
Termination  A, B, and C are joint tenants, if A wants out of the joint tenancy he can sell to X and sever the title, B and C remain
joint tenants but they as a couple are tenants in common with X, if B dies the remaining interest goes to C, still
retain right of survivorship
 A, B and C are joint tenants A wants to destroy joint tenancy and become a tenancy in common A can sell property
to straw-man conveyance X and sell it right back to A, privity, interest destroyed and severed and A is now a
tenancy in common (some jurisdictions allow this to be done by simply allowing owner to convey it to self)
 IN MOST JURISDICTIONS, A can convey his interest from himself to himself, thereby creating a tenancy in common
w/o the middleman.

Carr v. Deking, (pgs. 580-581): Tenancy in common:

A co-tenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease.
(George Carr, owner of a parcel of land with his son, Joel Carr [P], as tenants in common, executed a written lease agreement with Deking [D] without P’s
authorization)

father and son were tenants in common; the father and tenant go behind the son’s back and form lease. father dies and son tries to evict tenant
issue: did the lease survive after the father died?
the common tenancy is an undivided interest and each party can sell, lease etc. w/out the other party’s consent. (he cannot eject them b/c Deking has stepped
into the shoes of the lessor.)Deking is entitled to a partition but he is also entitled to the benefits of the lease as long as he accepts the terms of the lease.
In this case to partition will mean a physical partition because the property lend itself to it

Tenhet v. Boswell, 581-584: Death Two joint tenants

44 | P a g e
 Property Synthesis
1) A lease entered into by a joint tenant does not sever the joint tenancy. 2) A lease entered into by a joint tenant expires upon the death of that tenant.
(like a LE sold to another; it becomes a LE per outré vie and is measured by the original LE holder) (Johnson, a joint tenant w/ Tenhet [P], leased his
interest in the joint tenancy property to Boswell [D] for a term of years and died during that term.)

w/out Tenhet’s knowledge, Johnson leases his interest to Boswell for ten years
Issue: does the lease survives?

45 | P a g e
 Property Synthesis
Does the lease severed the joint tenancy? The ct says that you can also look at it as a life estate and it wont severed the joint tenancy. The ct concludes
that the lease did not severed the joint tenancy b/c it takes a higher standard to create a joint tenancy the law will assume a higher standard to destroy it,
and Johnson didn’t do any of the things to clearly severe it. The lease disappears because is a fundamental rule that when a joint tenant dies the interest
shifts to the other tenant and the other tenant is not obliged to hold the lease because interest has to transfer w/out encumbercies
Form of joint tenancy only available to married couples; requires the four unities of time, title, interest, and possession, and additionally marriage.
Individual interest cannot be sold, transferred or encumbered without consent of other spouse. (if one spouse passes the survivor will have FSA)
 Co-tenant dies interest passes to surviving tenant, but if die simultaneously treated as ten. in common and interest to heirs
 Abolished in a majority of states; available in about 20 states (Not Cal) which declares that you cannot exercise any of the sticks in the bundle
without spousal consent; not available in community property states
Policy:  Shortage of fee simple family homes, allowing debtors to attach detrimentally burdens the family
Tenancy by Entirety

 In arm length transactions creditor knows type of property of the home owner, put on notice
Distinguishing from 1. The individual undivided interest cannot be transferred without the consent of both spouses
joint tenancy: 2. The individual interests cannot be reached by creditors of one spouse
3. Partition is unavailable as a remedy for disagreement about property (only divorce may divide)
Creditors  Property cannot be sold, or encumber by a mortgage without consent of both parties
 Typically creditors will not be able to attach property in order to collect on one spouses debt
o Rationale: to allow attachment by collectors for one spouse is anathema to nature of tenancy as one strictly for
married couples to respect the family unit
 Creditor’s rights: not unfair to creditors because in an arm’s length transactions creditors would know nature of
asset and will not rely on existence of asset
Property Fractional Interest  Ownership interest are fractional shares called “undivided interests” because each share has the right
Interest: to possess the whole property
Rights:  fractional interest are not alienable, inheritable, or devisable; when co-tenant dies his share goes to
the surviving co-tenants and is equally divided
Formalities: Four unities of time, title, interest, and possession plus marriage
1. Time and Time - interests must be created at same moment in time
2. Title: Title - all parties must acquire title by same instrument
3. Interest equal interest in property which lasts same amount of time
4. Possession: Each has the right to possess all of property
5. Marriage Co-owners must be legally married

Kresha v. Kresha, (584-585):

Pursuant to a divorce proceeding where one party is awarded the entire ownership of certain lands, those lands are taken subject to any leasehold
interests other parties have in the other party’s former ownership interest.

Divorce, Wife and husband had a joint tenancy. Husband leases land to son w/out wife’s knowledge, mother finds out. Couple gets a divorce the wife gets
the property and tries to kick the son off. The son says the lease survives
The ct says the lease survives b/c the father owned at the time entering into the lease a fee simple and he could give it away which ever way he wanted
she knew about the lease at the time the land went to her and she could have settled that at the time the land was completely being conveyed to her

Obligations of Co-Tenants
Olivas v. Olivas, 576-578
When a spouse departs a residence held as community property due to marital friction, a constructive ouster is effected.

Husband and wife get divorced but the partition of property doesn’t happened for 3 years
Husband claims he was constructively oustered and wants her to pay him rent for the 3 years
He claims that the emotions made it impossible to live together and this the ct says can be seen as a constructive ouster
Ct says that he didn’t move out because he couldn’t live w/ her but he left her for another woman
She doesn’t have to pay rent to her
Pg. 578 “the impracticality of joint…constructive ouster”

Tenancy by the Entirety

Sawada v. Endo, 587-591:
The interest of one spouse in real property, held in tenancy by the entirety, is not subject to levy and execution by his or her individual creditors absent
consent of both spouses.

Endo gets in car accident w/ the Sawada’s

Endo has no liability insurances
The Endo’s conveyed the property to their sons
The Sawasdas’ are claiming that the conveyance is fraudulent and seek to nullify it so that they can attach the debt to the property
Court say that the debt could not be attached to the property because is a single debt and the wife interest should not be burden
The court really emphasizes the importance of family interests v. creditors

46 | P a g e
 Property Synthesis
Dissent: Says that if women are going to share benefits of the property then they should share on the burdens of the property.
Property: Leaseholds
Leaseholds & Rent Conflicts

Four types of tenancies exist, the basis for distinguishing each is by their duration or by their method of termination
 Procedural Regulations: Formal requirements for establishing a landlord-tenant relationship (Leases lasting longer than a year must be written)
 Substantive Regulations: defines theparties rights and obligations toward one another, some may be contracted away but others cannot
 Leases are governed by express terms and implied terms; residential v. commercial are basis for difference in policy considerations
o implied terms: covenant of “good faith and fair dealing”, “quiet enjoyment”, and “implied right of habitability”
Tenancy of Years fixed dates, terminating automatically without notice to the tenant at the end of the term; similar to a LE in that it ends
naturally
 Certain Term: the beginning date and the end date must be fixed (any period of time)
 Termination: contains termination date so no additional notice is necessary
 Note: Death of either party will not terminate the tenancy however may be able to negotiate an end
 Note: Landlord maintains future interest as a reversion unless stipulated that it will go to a 3 rd party at the end of the
lease
 If Tenant is not breaching lease, tenant cannot be evicted during the period of the lease.
Periodic Tenancy continues from one leasing term (period of time) to next automatically unless either party terminates at end of period by notice
 Termination: automatically renews for a further period unless valid notice of termination is given
o Common Law: period less than 1yr require a full period’s notice prior to termination (1yr = 6mnths)
o Modern: 30 days notice for any tenancy, but must be effective as of end of period
 Note: Death of a party will not terminate the tenancy however may be able to negotiate an end
 Note: typically created by implication
Tenancy at Will (1) no stated duration and (2) may be terminated at any time by either party (a quasi-unregulated tenancy)
 Termination: no notice is required to end tenancy; however most jurisdictions require at least 30 days notice effectively
converting it to a periodic tenancy; very few jurisdictions allow for less than 30 day notice
 Note: death of a party terminates the tenancy
 Note: typically created by implication
 Assumption: court will assume if one party has the right to terminate at will the other party does also
Tenancy at Sufferance When a tenant wrongfully remains as inhabitant of premise at the end of a valid lease (aka “Holdover Tenant”) (not trespass)
Leasehold Estate

 (1) Permission to enter but (2) non-permissive continuance of habitation (distinct from non-permissive entry)
 landlord has right of election between (1) evicting tenant; and (2) holding him to another term as tenant
o if landlord accepts check will be construed as creating a “tenancy at will”
 Majority: creates a month- to-month periodic tenancy
 Minority: creates a one year periodic tenancy
o Avoid by (1) not accepting the check or (2) asserting check does not create a new tenancy
Tenant’s Rights  Right to Actually take Possession of the property which was under lease
 Covenant of Quiet Enjoyment: An implied promise that the landlord will not, by an act or omission, substantially interfere
with tenant’s possession or use of leased premises
Landlord Rights and Right to: (1) receive rental payment, (2) premises remain reasonably intact (tenant cannot commit waste), (3) reversion
Obligations Duty to: Present possession to tenant (If land still occupied, Landlord must reasonably try to remove a Holdover Tenant)
 Holdover: tenant wrongfully remains as inhabitant of premise at the end of a valid lease
o Majority: duty to deliver actual possession
 Holdover Tenant: unable to take possession may (1) terminate lease, (2) recover damages for breach (in
equity)
o Minority: duty to deliver legal possession, not actual
 Holdover Tenant: unable to take possession, new Tenant must sue to eject holdover and is still obligated to
landlord
Tenant in Breach: Non-material Term:  May not evict however may refuse to renew lease
Material Term:  May evict tenant for breach of material term
tenant refuses to (1) accept new periodic tenancy or (2) summary process and seek back rent
leave:  Majority view: landlord must use state court to eject tenant (no “self-
help”)
 Summary Proceeding - state court mechanism, parties quickly present
defenses and claims against one another
tenant leaves: prior to completion of lease: may accept surrender and sue to recover back rent
and transaction costs
 duty to mitigate: landlord must make a reasonable effort to replace tenant
if he seeks to recover rent due from a defaulting tenant
 Re-letting on tenant’s account: suing old tenant for a difference between
new tenant’s lease and walked-away tenant’s lease
 Accept a surrender: recover back rent, transaction cost in renting
apartment, and difference in fair rental value

47 | P a g e
 Property Synthesis
An implied promise that the landlord will not, by an act or omission, substantially interfere with tenant’s possession or use of leased premises
 Claim landlord’s act or omission so significantly interfered with tenant’s use and enjoyment that it essentially constituted an eviction Typically used by
Commercial lessees b/c of advent of IWH which is more favorable for a residential lessee (Still applicable for resi.,use cause slightly lower standard)
Constructive (Majority Rule) Tenant’s use and enjoyment has been substantially impaired (eg. excessive noise or odors)
Eviction:  Burden on tenant to prove claim, high bar, typically doesn’t put much liability on landlord for 3 rd party actions
 omissions is wrongful only if there is a duty to act by: (1) express clause in lease, (2) Statutory duty concerning premises, (3) limited
repair duties traditionally imposed on the common law landlord (duty to maintain common areas, minor repairs)
 If successfully asserted the tenant will be allowed to break the lease without penalty
Analysis: (1) What is stipulated in the lease? (2) What is landlord’s conduct (and 3rd party under split)? (commission or omission) (3)
Covenant of Quiet Enjoyment

Does the conduct constitute substantial interference of a tenants use and enjoyment? (such a major interference that a
reasonable person would conclude dwelling is uninhabitable but it is not necessary that it be permanent nor prevent tenant
from occupying premises)

1. Wrongful Conduct (a) acts and omissions of Landlord (express clause in lease, statutory duty, repair duties under
common law) (b) conduct of 3rd party(LL right to control 3rd party)
2. Substantial interference: defining substantial interference(reasonable person would conclude uninhabitable) (b) partial
constructive eviction

Tenant is 1. Provide notice of faulty condition

required 2. Give reasonable time to cure condition(Tension: reasonable time to cure vs. reasonable time to move)
to: 3. Vacate premises within a reasonable period of time (Rationale: necessary to substantiate claim)
o Must vacate prior to (1) terminating lease or (2) stopping payments
o Minority view: allows a tenant to partially vacate (Partial Constructive Eviction)
Partial (Minority rule; RST) defense due to eviction of an abandoned portion of premises due to landlord’s act/omission in making portion of
Constructive premises unusable by tenant (Minjak: hybrid spaces) (Potentially increase litigation); adopted by NY; more board and fluid (lower bar)
Eviction: Restatement: there is a breach of landlords obligation if during the period where tenant is entitled to possession of leased property,
landlord, or someone’s conduct attributable to him, interferes with permissible use of leased property
Difference in 1. Standard requires interference be more than insignificant; lower standard than C/L (substantial)
RST and C/L 2. Explicitly adopts “Blackett Doctrine” placing some liability on landlord for conduct of 3rd parties if
landlord has any ability to control those 3rd parties even if they may not have a legal duty to do so
3. It does not require that the tenant vacate the premises; no longer a requirement
Third Party Landlord is responsible for 3rd Party interference of enjoyment if the landlord has caused or consented to conduct
interference  Modern: landlord is liable if he had a legal right to control conduct of 3rd Party (Relationship btw LL and 3rd Party)
 Traditional: landlord is not responsible for conduct of 3rd parties if conduct interferes with quiet enjoyment
implied warranty in residential leases that requires premises be fit for human habitation(broad) or at lease bare living requirements (Narrow, inhabitable)
 May be a defense or an affirmative cause of action; may withhold rent, make repairs (Minority View: defines scope of warranty by housing code)
 Public Policy reason for denyingwaiver ofIWH: “Unequal bargaining power”, “Unfair burden”, “Unfair for Social Relationship”
Plaintiff Must 1. Is there a Housing code violation alleged as a breach of landlord’s warranty?
Show a. Narrow View: defined by House Codes; a minimum standard of inhabitability; necessary but not sufficient
Implied Warranty of Habitability

b. Broad View: must be “fit for human habitation”; jurisdiction will use the house code to inform the minimum standard but
not to define the minimum standard, more independent and flexible
 Fact intensive analysis based on the circumstances (No heat in Alaska vs. no heat in Arizona)
2. Did the alleged violation exist during the period for which past due rent is claimed?
3. Was the portion of the rental obligation suspended due to the landlord’s breach?
Analysis: 1. Reasonableness: a reasonable person would consider premises uninhabitable
 Minor Defects: regardless if listed as housing code violation, a minor defect will be insufficient to show violation
o Defense: potentially claim the tenant has an expectation higher than the minimum standard promulgated by code
 At time of Lease: defects cannot be apparent at time of lease signing (considered a waiver of liability)
2. No violation until landlord is (1) given notice of defect, (2) specify type of defect, and (3) allowed reasonable time to cure
 Tenant will not need to move out if burden on tenant to find a new place is an enormous
Tenant Remedies 1. Rescission: (IWH, CQE) violation of obligation entitles tenant to stop performance of contractual obligations
for violations  May repudiate contract, move out prior to end of lease without liability for remaining lease
2. Rent withholding:(IWH) breach of implied warranty allows tenant stop paying rent and continue living in premise
 landlord sues for back rent or eviction and tenant will raise violation as defense to claim
3. Rent abatement:(IWH) tenant is entitled to a reduction in rent (Jurisdiction Split: pay to escrow)
4. Repair and deduct: (IWH) tenant may pay for repairs and deduct cost from rent paid to landlord (FYI: typically statutory rest.)
5. Injunctive relief, or specific performance: (IWH) sues landlord, injunction ordering to comply with housing code, make repairs
6. Administrative remedies: (IWH&CQE) state provided administrative remedies, outside court, regulated by local housing code
7. Criminal penalties: (IWH/CQE) criminal penalties provided by state building code for landlords failing to fix unlawful conditions
8. Compensatory damages: claim for damages exceeding rent rather than a reduction or reimbursement rent already paid
 Punitive damages are appropriate if a landlord is morally culpable and the award could deter that conduct in others
o landlord’s act was (1) intentional and malicious or (2)conduct implies criminal indifference to civil obligations

48 | P a g e
 Property Synthesis

Court eviction proceedings are usually required to evict a tenant; restrictions on evictions: Anti-discrimination Laws, Rent Control Laws, Regulate
apartments turning into condos, Federal Laws Public Housing and Low Income, Retaliatory Eviction
Landlord’s Depends on whether tenant breaches a material term of the lease,other than material term Landlord cannot evict until lease expires
rights to evict  Traditional Rule: landlord may evict for any reason if they abided by the statutory requirement for notice in that jurisdiction
 Modern Rule: landlord is not free to evict a tenant in retaliation for tenant’s report of housing code violations however proof of a
retaliatory purpose does not entitle tenant to remain in perpetuity (statute will dictate: BoP standard and protective timeframe)
Retaliatory Removal of a tenant from possession of a property due to a the tenants complaints or conduct which is the landlord is opposed
Eviction  Analysis: Evidence of a complaint filed recently (range 90days-1yr.) will give rise to “Presumption of Retaliatory Eviction”
1. Does the eviction fall within the timeframe?
Evictions:

a. If outside timeframe, no presumption of R/E, burden is on claimant to show

b. If inside timeframe, presumption of R/E, burden is on Landlord to show
2. If burden is on Landlord do any of the factors apply? (Factors are positive or negative)
 Presumption onlandlord, must show legitimate non-retaliatory reasons (reasonable judgment standard)
3. BoPthen shifts to π,“Preponderance of Evidence”; burden is ultimately on the tenant to show
 Tenant must show a clear nexus between activity related to tenancy and eviction: i.e. complaint against landlord must
allege an eviction due to discrimination or response to tenant’s housing based complaint (e.g. broken sink, dirty halls)
 Policy: Landlords’ should have some power to chose who lives on their premises
FACTORS showing 1. decision was a reasonable exercise of business judgment
REASONABLENESS for 2. in good faith desires to dispose entire leased property free of all tenants
eviction: 3. in good faith desires to make different use of the leased property
Bloomquist case 4. lacks financial ability to repair the property and in good faith wishes to have it free of tenants
5. was unaware of the tenant’s activities which were protected by statute
6. did not act at the first opportunity after he learned of the tenant’s conduct
7. act was not discriminatory

49 | P a g e
 Property Synthesis

Landlord landlord conveys property interest to a new landlord pre-existing benefits and burdens remain if they run with land
 same right to rental fees however tenants rights (“interest”) survive, subject to same terms of eviction
 Apartment lease grants the landlord a future interest right of reversionary
Tenant 2 Types of Assign conveys all tenant’s remaining property interests without retaining any future interests to enter prop.
Prop.  Assignment means that assignee becomes new tenant assuming all rights and responsibilities
Transfer Sublet tenant retains some future interests or right to control property in future (Less than entire interest)
 Sub-tenant and Landlord are not in privity because contract is still btw original tenant and the LL
o Landlord must sues original tenant and original tenant sues sub-tenant for indemnification
o landlord may sue for equitable release under the theory of equitable servitudes
o because landlord can evict tenant and subtenant only has rights tenant, may also be evicted
If Lease is  If lease agreement is silent regarding assignment or sublease generally a tenant is entitled to transfer possessory
Silent interests by either sublet or assignment
 Rationale: promotes alienability and marketability
o most efficient use of premises (party willing to pay for and use)
Partially Required for sublet but not assignment
Required  Majority Rule: construe strictly to terms of the contract; if a lease contains a consent or approval clause without
stipulating a standard, landlord may withhold consent arbitrarily or capriciously so long as it is not discriminatory
 Modern Rule: term sublet may be general which includes assignment
o Residential no requirement to be reasonable in refusal, as long as the reason is non-discriminatory

Transfer of Property

Rationale: reasonableness criteria in Commercial Lease because of (1) greater suspicion over consent clauses
in commercial leases because it can be a way for a party to create an advantage by drafting (residential may
have protections) (2) not the same types of concerns regarding scarcity of resources
o Policy Reasons for not extending reasonableness criteria: (1) open the as a change in standard litigation
floodgates (2) not the courts place the change established standard, leave to Legislature
o Commercial: requirement that the refusal be based on some commercially reasonable reason
 Rationale: undue restraint on the alienation of property, treat the lease as a contract with the “Duty of Good
Faith and Fair Dealing” and not merely a conveyance of property (contract disallows arbitrariness)
o Duty to Mitigate: No duty for leassor to look to anyone but the lessee for payment
 Response: Complete dominion is gone, therefore it is reasonable to place a duty to mitigate
o Approval Clause: lessee could have bargained for a reasonableness clause
 Response: Assume that in the absence of the arbitrary language that it would be assumed
reasonableness was the standard
o Negotiated: was entered into under the existing majority rule
 Response: Simply because it is a majority rule the minority trend seems to be more correct
o Market Value: Any increase in market value should belong to the lessor and not the lessee
 Response: Lessee took on the risk so it is not fair to deny him the benefit
Reasonableness Reasonableness: compare justifications for a particular restraint actually
Factors: imposed (good faith standard: decision cannot be based on personal
“In the absence it is taste; not commercially reasonable)
unreasonable” 1. Financial responsibility of purposed assignee
2. Suitability of use for particular property
3. Legality of proposed use
4. Need for alteration of premises (radically alter it)
5. Nature of occupancy
Expressly Sublet: tenant retains right of entry and right to take possession
Prohibited  rent controlled premises may not be sublet at a profit
Landlord cannot sue sub-tenant to enforce covenants in original lease
 sue in court of equity for fulfillment of terms of lease (under equitable servitudes)
 Exception: Sub-tenant expressly assumes lessee obligations; tenant sue to indemnify
Assignment: tenant conveys all rights and obligations to the assignee
 If assignee, in privity with landlord and may be sued by landlord on the contract
o Original contracting party is liable under the lease

50 | P a g e
 Property Synthesis

Sommer v. Kridel, 663-667

∆ entered into 2 year lease w/ ∏
∆ paid a month, leaves
RULE: a landlord has a duty to mitigate damages
The burden is on the landlord to prove that he tried to rent the apartment etc.

Conflicts About Rent (Delivery of Possession, Sublet and Assignment)

Kendall v. Ernest Pestana Inc., 683-688
REASONABLE CONSENT: Commercial Leases
Majority Rule - No reasonableness requirement implied in lease
Minority Rule - Must have a commercially reasonable objection
Limit restraints on alienation need for space in urban society

Issue: whether the consent has to be reasonable?

Base line rule in Cal is that you can put this kind of consent clause on the lien and you are free to contract around that
Majority rule says that you can arbitrarily refuse to approve a sublease unless explicitly said by the lease
Commercially reasonable objection:
Financial responsibility of the proposed assignee
Suitability of the use for the particular property
Legality of the proposed use
Need for alteration of the premises
Nature of the occupancy
The court labels the commercially reasonable objection as the minority rule but is adopting it because courts are starting to look and construe leases as Ks
The court says that it has to be
Dissent says that there should be freedom of K and that the legislature should take care of it if there is a problem. I a

Slavin v. Rent Control Board of Brookline, 688-690

Rent Controlled Leases (Slavin v. Rent Control Board)
Majority Rule - landlord may refuse arbitrarily in withholding consent
Minority Rule - reasonableness test
In rent controlled areas no economic incentive and no shortage of residential space
POLICY: Allowing minority rule in residential leases would increase litigation over what is and isn=t reasonable

∏ is landlord and applies to the rent control board to get an eviction

Issue: is there a reasonable requirement on the residential context as in the commercial context
General rule: a lease provision requiring the landlord’s consent to an assignment or sublease permits the landlord to refuse arbitrarily or unreasonably
The court holds that reasonable requirement for denial is not required on a residential context because there are not the same implications as in the commercial
context and the legislation should addresses it

Covenant of Quiet Enjoyment; Constructive Eviction

Minjak Co. v. Randolph, 701-703
Randolphs are on a part commercial part residential area
They have all these problems occurring to them
They argue that they had to abandon a portion of the premises
Important about this case:
-Shows how the doctrine of partial eviction can be used
-Is a minority rule and a hybrid case

Blackett v. Olanoff, 703-705

Court says that landlord is liable for renting his other space to a bar owner
The court ruled for the tenant

Implied Warranty of Habitability

Javins v. First National Realty Corp., 709-714
Ct moves form common law to modern rule:
Contract Law
Consumer Protection Cases
Person buys a product and expects it to work properly, same expectation from tenants
Inequality of Bargaining Power
People living in bad conditions are burdened
Housing code - implied warranty derived from code, legislature has established minimum housing standards

Retaliatory Eviction
Hillview Associates v. Bloomquist, 726-730
Tenants formed tenants association to bring complaints to management - management evicts tenants after escalated situation - tenant brings defense that eviction
was retaliation
ANALYSIS:
Landlord must show that tenant was evicted for another reason

51 | P a g e
 Property Synthesis
Tenant has the ultimate duty of proving the defense
Tenant shows that complaints were made in good faith, housing was rundown, witness testified that landlord wanted to get rid of tenants
Landlord offers evidence to meet burden in regards to one tenant but not two

Tenants are complaining about housing problems and they form an association
They meet w/ management several times and the last time it gets physical
The tenants in that last meeting get a notice of eviction
They defend by saying that is a retaliatory action.
Court says you can’t evict on retaliation
The tenants have the ultimate responsibility of proving the affirmative defense
7 factors to look at to see if the landlord has committed retaliation

Imperial Colliery Co. v. Fout, 730-732

∏ is part of a union and he participates on a strike
His landlord ask him for the property, he ask for an extension and get two months extension to vacate the premises
He doesn’t move out and ask for another extension doesn’t get it and he claims is retaliation
This court adopts the same case as D.C. which says that a landlord should not be evicted in retaliation
Then the issue becomes if it has to be related

52 | P a g e
 Property Synthesis
The court held that there has to be a connection between the landlord/tenant relationship to assert a retaliatory eviction
Property: Family Property
Marital Property (Separate & Community Property)

O'Brien v. O'Brien (599-604): Couple divorces. The only asset of the marriage was the husband’s license to practice medicine. Issue for the court was whether the
husband’s license was martial property subject to equitable distribution or if it is separate property. Court presents a question: does the absence of one of the sticks
in the bundle (in this case, lack of alienability of a medical degree) preclude a finding that the object is in fact property? Court answers in the negative: even though
you can’t transfer a medical degree, you can still consider it as property by quantifying its value and making an award based on that calculation. (this is not the view of
all states). Note that even though the New York court did consider the graduate degree martial property (it was defined as such by statute), this is a minority
approach and most jurisdictions don’t consider graduate degrees martial property subject to distribution.

Montana Equitable Distribution Statute(70-71): Husband, a professional gambler, and wife divorce. Wife gets the house, one of the few assets they have. Husband
wants the house sold and the proceeds divided between he and his wife, but the court, taking into consideration the wellbeing of the children and the unlikelihood of
the husband to be able to pay routine child support (he was a professional gambler) gives the wife the home.

In re Marriage of King(71-73): Watts wasn’t married to her mate and when they break up he tries to take all the property and leave. She prounounces several
theories upon which she is entitled to relief, including the idea that they had a contract to share the property accumulated during their relationship. Court affirmed
declaring that plaintiff had voiced several claims upon which relief could be granted.

Elective share rule-some jurisdictions allow the surviving spouse to take under the forced share statute or under the will (whichever is greater)
 tenancy in entirety and tenancy in common do not exist in community property states
 Couple marries in a community property state and moves to a separate property state?
o characterize property by the state in which the couple is domiciled when they acquire it
o the rules of that state where the property was acquired governs the newly acquired property
Pre-marital  alter property rights, may potentially alter all existing property rules (may modify terms of relationship at any point)
Agreement  Uniform Pre-Marital Agreement Act: adopted in 19 jurisdictions, codify the majority view, enforces reasonableness
Family Property

and unconscionability standard viewing the circumstances under which the party entered the agreement
o Majority View: focuses on voluntariness (duress)
o Minority View: Two distinct views (1) enforce the terms of the pre-marital agreement as stated (regardless of
terms); (2) are the terms of the pre-nuptiual unconscionable
Rationale: because people are marrying later they will tend to have more property they may wish to protect
(encourages marriage by gaining security)
Unconscionability in which a court may refuse to enforce a contract that is unfair or oppressive because of procedural
: abuses during contract formation or because of overreaching contractual terms, especially terms that
extreme are unreasonably favorable to one party while precluding meaningful choice for the other party
unfairness
Divorce  Rehabilitative Maintenance: required to provide money to the spouse until they are able to care for them self,
Awards: intended to help spouse achieve economic independence
 Alimony: a court-ordered allowance in which one spouse is required to provide financially for the other spouse for
maintenance and support for the rest of the spouses life or until they re-marry
 Re-imbursement:for direct financial contribution
 Future Earnings Potential:forecast the value of some property interest over a given period of time
Family Property

Community: property acquired during a marriage belong jointly to husband and wife from the moment it is acquired and upon death or divorce and is
Minority treated as belonging equally to each spouse (50-50); governed by civil-code, prevalent in the western United States (9 states, CA)
View  property acquired during marriage is presumed to be community property however this is a rebuttable presumption by showing it
falls within one of the classes of “separate property” (community may gift or loan money to a spouse individually)
Before marriage Property gained prior marriage remains separate from community property throughout marriage
Gift or inheritance Gift, devise, bequest, or inheritance, received during marriage, remain personal property
 may be converted to community property by contract
Transmute:  a written contract that shows intent for personal property to be converted
to community property (co-mingling creates involuntary transmuting)
Co-mingling:  Party allows separate personal property to mix with community property
 Requires Court to decided if the parties actions demonstrate intent for the
property to be community or not
 Separate property comingled with community property retains its character
as separate property if it can be traced, but, if it cannot be traced, then it will
be treated as community property
Earnings All earnings are community property
Divorce  Personal property remains the individuals property however the community property is split 50-50 unless
otherwise stipulated by marital agreement
Equitable  (Minority) a party enters marriage with property however during marriage the parties do not
Distribution amass community property and divorce will effectively leave one party destitute if a portion of
Statute the party’s personal property is not distributed to the other spouse
Death party may will away all their personal property and they are entitled to devise there portion of the community property

53 | P a g e
 Property Synthesis
Marital Property accumulated by a married couple during the term of their marriage
property:  Migrating Property Couple: property is characterized by state in which they are in at time it is acquired

Separate: While each spouse maintains a legal obligation to support the other (potentially sue for maintenance), they own their property separately
Majority however they may choose to share or mingle their property but each may attain some ownership right in the mingled property.
View  Property/debt earned during marriage remains separate (e.g. wages), spouse wide freedom to sell personal property during their life
 If a spouse enters a marriage with property that can change in value any increase in value remains separate
o Exception: may become community property if primary job during marriage is managing that property (mixes capital/labor)
Equitable  Upon divorce, a statutory regulation enforces a fair distribution of marital property based on a variety of factors
Distribution o Court approaches: (1) Future earning potential, (2) alimony, (3) reimbursement, (4) maintenance
Statutes  Split: some states allow a consideration of fault, other states reject a consideration of fault in division of property.
Factors to  age of parties  status (maintain lifestyle equal to marriage)
consider:  length of marriage  rehabilitation (“maintenance” in lieu alimony)
fact specific  what one gave up to help the other’s gain  fault (sometimes)
 relative need btw parties (child support)  Level of education
 level of indebtedness  Contribution
Statutory  spouse may devise their personal property to an individual other than their spouse however most jurisdictions will
forced Share: impose a statutory “forced share” per state statute (regardless of decedents wishes)
Family Property

o permits property redistribution (1/3 — 1/2) based on length of marriage to ensure surviving spouse is not
destitute; Contingent on the length of marriage
o Elective Share Rule: surviving spouse may either take under the will or choose the statutory elective share
Policy:  More efficient if society ensures survivor spouses are not left destitute but rather provided for
Marital All property acquired by either or both spouses during a marriage and before the execution of a separation agreement or
Property the commencement of a matrimonial action regardless of the form in which title is held
 absence of a stick in bundle will not necessarily preclude object/concept from consideration as property (O’Brian)
o Ex. Lack of Alienability (Medical Degree) (non-tangible good can be quantified and a portion of value awarded
 New York Rule: (Minority YES) property is defined by law, not independent abstract concept, regardless
whether an interest fits classic notion is unimportant if legislature chooses to include as type of property
 Counter-argument: (1) License are not property because they are not alienable, (2) require effort
not simply money, (3) value of object is indeterminable, (4) the award was fixed and final
 Traditional Rule: (Majority, NOT property) it must be transferable, there must be some method by
which the entitlements/rights could be disaggregated
Contribution: Direct or indirect contribution made to the acquisition of marital property, career, or career potential
are relevant in considering the equitable distribution of marital property
 Standard: “significant contribution” to increased productivity or ability to produce income
Homestead  Intended to protect the interest of the spouse and children in the home; effectively creating a Life Estate
Laws: o Statutory limits: prevents amassing debt prior to death and using a home to protect interest from collectors
 Tension: the spouse’s interest (that may not have created debt) vs. those of collectors
o Alternate perspective: allow a lien be placed on a home for the portion of the interest owed by the debtor
 Creditors are unable to take home of a deceased spouse providing shelter for the surviving spouse and kids
Premarital  a party is able to contract away from rules
Agreements:

Unmarried Partners/Same-Sex Marriage

Watts v. Watts, 608-611
Dalton excerpt, 612-614
Unmarried:  If unmarried in a state that without common law marriage, a suit may be brought under “implied contract” or “unjust enrichment”
Implied Non-sexual services performed by a partner in a long-term relationship may be grounds for an implied contract in place of
Contract: suit for marriage
Unjust (1) Benefit conferred on the defendant
Family Property

Enrichment: (2) Appreciation or knowledge by the defendant of the benefit conferred by the plaintiff
(3) Acceptance and retention of the benefit that makes it inequitable for defendant to retain
Constructive an equitable device (a remedy) created by law to prevent unjust enrichment (2 elements)
Trust: (1) Must demonstrate the elements of unjust enrichment
(2) Abuse of a confidential relationship or some other form of unconscionable contact (may be inferred)
Policy  Pro: recognizing a joint venture (a partnership not a marriage); unfair to deny her compensation
Rationale:  Con: Ignore his intent not to marry (no longer free to decide not to marry); no Common Law marriage for a reason
(imposing retroactively); unfair to effectively hold him to a marriage though he choose not to marry
Same-Sex:
Defense of  property passes to the surviving spouse, federal protection is only for heterosexual couples who are married
Marriage Act  signed into law by Clinton
Full Faith and  causes each state to recognize marriages of other states
Credit Clause

54 | P a g e
 Property Synthesis
Property: Regulatory Takings Law
Background: Ad hoc test
Miller v. Schoene, 957-958
Penn Central, 959-965

Takings
federal, state, and local governments are prohibited from taking private property unless the taking is for public use and the property owner receives just
compensation (“Constitutional Law”) (No limit on power of the government to take so long as it is (1) for public purpose and (2) just compensation)
 Analysis: Does not focus on what constitutes an act of taking but rather: (1) What is a “legitimate” public use? (2)What is” just” compensation?
 Law does not guarantee a property owner most beneficial use of land nor is it a taking if law prevents use of land in the most beneficial way
 5th and 14th Amendment grant Fed and State governments’ the power to take private property for public use (eminent domain is a category)
Exception  the taking clause does not apply to Tribal Government
:
Eminent Domain:  CoA filed by government with a court for right to “take” the property of a private property holder, without the property
(aka Condemnation holder’s consent, and pay of just compensation fair market value or a fair price for the property
Proceeding ) Analysis: (1) Is there a taking? (“actual appropriation” of property is clear under eminent domain)
 question is resolved at outset by nature of action requiring gov’t to file with court for title
(2) Is the taking for a legitimate public use? (Question of Deference (Majority) vs. Non-Deference (Minority) when
Taking Clause:

private property is transferred between private holders…) (Kelo Case)

 Rule 1: sovereign may not take personal private property of an individual for sole purpose of transferring it
to another private party though the original property owner may have been paid just compensation.
o The government cannot use the “public use” as a pre-text to confer a benefit on a private party
 Is there evidence of illegitimate purpose?
 Rule 2: sovereign may transfer property used privately to other private user if raison d’être is to serve public
o Majority: “Public Use” defined as “Public Purposes” a broader more flexible reach (Public Good)
 Strict public use is not necessary rather "public purpose" is the standard which is broader and
more flexible and encompasses public good (Majority)
 Majority: position is Judicial Deference/Rational Basis (while a private party may benefit, so long as there is
a public purpose served and that the overall public good is enriched)
 Minority: Heightened (“Strict”) Scrutiny: “Affirmative Harm as pre-text for taking” (O’Connor)
o Thomas: too much deference will lead to this disproportionately affecting poor and minorities
(3) What is just compensation?
 Is there title of ownership for which compensation is due? (Tee-Hit-Ton, 14-19)
o Recognized title is compensable: (1) recognition by treaty or statute (2) act btw the group and the US
o What level of property interest is compensable?
 Aboriginal Title: “Right of Occupancy” is not compensable (Tee-Hit-Ton)
 Was the compensation sufficient? (Sioux Nation, 1074-1082)
o Fair market value. What of holy place

Per se Takings
Pruneyard, 976-979
Loretto, 979-984

Public Use
Kelo, 1051-1065

Just Compensation
Tee-Hit-Ton, 14-19
Sioux Nation, 1074-1082

55 | P a g e
 Property Synthesis
 area is rezoned or laws are enacted greatly reducing value of a property by diminishing potential return on an investment b/c of a change in
scope of property right that limit the potential uses of a property or at least use for which it was intended to be employed
o regulatory decision changes scope of property rights to such an extent that contend the change constitutes a “taking”
o not eminent domain because the right of ownership has not been appropriated by the government
o Rationale: government prerogative to enact laws which benefit public health, welfare, safety (Police Powers)
Police  Power of the sovereign to enact legislation which limits private conduct to protect the health, welfare, and safety of its citizens
Powers: (states have a “robust” police power inherent in sovereignty, allows them to regulate for their citizens)
Nuisance  though acting within bounds of law, abiding by all zoning rules, the activity conducted is so bothersome to those in immediate
Exception: vicinity of property owner that it is within police power of state to prevent property owner from performing that activity even
Noxious Use if it diminishes expectation of investment, greatly reduces prop. value, or in some sense physically take portion of property
Analysis: (1) Is there a taking? Question: By how much must the value of a property need to be reduced in order demonstrate a taking?
 R/T Analysis: Has the government gone too far? (analyze under Penn Central test: Ad-hoc factual analysis)
o Not every reduction in value due to a government regulation is a taking…
 so long as the government is acting within the legitimate sphere of its police power
 Tension: Where is that line drawn?
(2) Is the taking legitimate?
(3) What is just compensation?
Test Is there a rational relationship btw the government action and a legitimate government interest
:  government regulation that falls outside scope of nuisance exception will convert to a taking
Regulatory Taking:

Ad Hoc Analysis:Case-by-case factor/balancing analysis: (factual inquiry) (meant to be “fair” & “just” result)
1. Economic impact of the regulation on the particular owner (Two-Sided Analysis)
 Subjective: (Penn Central Test) Can this particular property owner continue to receive a reasonable
economic benefit from this property? (Economic impact on that claimant)
o Lost opportunity cost rather than as an actual deprivation of an economic benefit
o Loss of a current use or activity versus loss of a potential use or activity
 Objective: How greatly has property value been reduced?
o no total fixed loss % est. that turns a valid use of police power to a taking
o Diminution of market value is not dispositive unless value is reduced to zero
Taking Clause:

 Typically an important factor but not held as dispositive

2. Protection of “reasonable” investment backed expectations (Intent of the landowner)
 Reliance interest: Did the property owner purchase with the reasonable expectation that they would be
able to invest in property and employ that property in a manner that would allow a return on the
investment that would be reasonably expected?
o What was the status quo at the time of the purchase?
 Was the expectation based on what had been at the time of the purchase a permissible interest
which changed only subsequent to that purchase
 “Owners are not entitled to the “most” beneficial use of their property”
o Analysis: How should the property be valued? (2 perspectives)
 Entire Property: analysis in terms of entire property (lost value)
 Component Part: analysis in terms of aspect affected (lost value)
3. Character of the government action (Is it arbitrary???)
 Rationale: We should not over-impose cost of public good on individuals (fairness)
o Benefit to society vs. Burden on the individual
 Analysis: Does regulation single out a group or affect everyone equally
o Is there a nexus btw gov’t power and action and how are they related
o Is it comprehensive scheme or a singling-out directed at individuals?
Analysis of regulation in which courts will not use ad hoc balancing test because it is a taking per se; 3-5 categorical taking types
Per Se Taking:  A “permanent physical occupation” authorized by government is a taking without regard to the public
interest it may serve (versus temporary or limited authorization)
o Under certain circumstances a government regulation will be considered a taking per se and not
Categorical Takings

require the entire ad hoc analysis where it is shown that there is a permanent physical occupation”
dictated by the government
Analysis: Character of governmental action: (Have core property rights been attacked or diminished?)
1. Permanent Occupation:
 Majority: focuses on effect of activity being regulated, i.e. box permanently
on property vs. transient protestors
 Dissent: focuses on the character of activity being regulated, i.e. the box will
always be there vs. the protestors can always protest
2. Physical Occupation:
3. Government mandated Occupation:
4. Facilitating a 3rd Parties Occupation:
 Is the owner left with any right to possess, use, occupy, or exclude?
 Can owner use property to further a private interests, financial or otherwise
 Does any economic benefit remain after the government regulation?
 Is a stranger granted right to directly enter and invade owner’s property?

56 | P a g e
 Property Synthesis
Property: Intellectual and Cultural Property
Trademark: Qualitex Co. v. Jacobson Products, 1089-1092; *supplemental materials to be provided*
Copyright & Patent: Feist Publications, Inc., 1095-1099; Suntrust Bank v. Houghton Mifflin Co., 1117-1127
Publicity Rights: Martin Luther King, Jr. Center for Social Change, 1129-1137; *supplemental materials to be provided*
Cultural Property: *supplemental materials to be provided*
Copyright (Constitutional roots, Federal statutory regulation) Copyright grants owner’s of original works that are fixed in a tangible medium of expression set
of interest in his original work for his lifetime, plus 70yrs after which it converts to public domain. Possessor of copyright owns interest in copyright,
not the work itself (note: work for hire has: 95 yrs from first pub or 120 yrs from creation -- lesser of either)
 Public Domain:
 Parody: a works aim is to comment upon or criticize a prior work by appropriating elements of the original and creating a new artistic as
opposed to a scholarly or journalistic work
Right to  Copyright holders’ can prevent others from: (1) reproducing work, (2) creating derivative works, (3) distributing copies of work
Exclude: to public, (4) performing work publically, (5) displaying publically, (6) perform via digital or audio transmission
Policy Tensions  Protect to encourage innovation (not creators) vs. free flow of info to foster more innovations
 Goals: (1) Promote learning, (2) protection of public domain, (3) grant exclusive rights to author
Remedies:  (1) injunction, (2) impoundment/destruction of infringing copies (3) damages: actual damages suffered, plus profits made by
infringer, or damages set by statute (Purpose of copyright is to promote innovation not necessarily author)
Analysis 1. Does the claimant hold a valid copyright in the work? (Focus on originality, not labor)
 To establish a copyright cause of action the claimant must establish that the work is (1) original, (2) authorship, and (3) fixed in
a tangible medium (not intended to protect labor, just originality)
o Example: Gone w/t Wind (YES: Sun Trust), Phone numbers in telephone book (NO: Feist case)
I. Original  The work must be an (1) independent creation of the author (YES: novel; NO: short phrases, slogans or
(Constitutional titles), AND (2) demonstrate at least some minimal creativity (YES: selection and arrangement of a
requirement) factual compilation; NO: alphabetical order) (standard: minimal degree of originality of thing)
o Copyright is intended to award originality, not effort:
 Copyrightable: compilation or arrangement of information focus on originality) (protects the
arrangement not the info itself)
 Not Copyrightable: facts, ideas, basic org. schemes, stock characters
II. Authorship  A corporations/person has 8 types of authorship: literary (including computer programs), musical,
dramatic, pantomimes and choreographic, movies, pictorial/graphic/sculptural, audiovisual, sound
recordings, architectural.
o Idea vs. Expression: copyright is intended to protect the form in which an idea is expressed, not the
idea itself (facts NOT protected).
o Note: functional works (i.e. procedures, processes, systems) governed by patent law
III. Fixed Medium  fixed in a tangible medium of expression (Poem: recitation, No; written, Yes)
2. Did the claimant copy the work
Claimant must provide evidence that establishes (1)the defendant had access to the work (2) the defendant’s work is
similar enough to the original work to show copying
 Continuum: greater showing of “similarity”, lesser “access” necessary (v. versa)
3. Was the copying an "improper” appropriation?
 Claimant must demonstrate that copier has copied so much of the original work that the two works are substantially similar.
Fair Use  Copyrighted material may be used without the owner's consent if used for transformative uses, i.e. uses that rely
Defenses on copyrighted work as raw material to create new and different works (this is a limitation on Copyright)
Doctrine:  Factor Analysis: (total of the evidence)
I. What is the purpose and character of the use?
o commercial nature vs. non-profit educational purposes
 property infringed w/ intent to earn profit receive higher review
 while capitalizing on key elements is it “transformative”
o Examples of Fair Use purposes: education, parody, criticism
II. What is the nature of the copyrighted work?
o film, song, book, etc.
III. What is amount and substantiality of portion used in relation to original?
IV. What is effect of use upon potential market for value of copyrighted work
o Reduction in MV may be ra result of but cannot be in exchange of
 Note: defendant’s intent and 1st Amendment protection may also be relevant.

57 | P a g e
 Property Synthesis

Intellectual Property
Theories Labor/Dessert Theory Utilitarianism Copy Left Movement New Movement
(C/L roots, federal statutory regulation) any word, name, symbol, or device used by a person "to identify and distinguish his or her goods" from those sold
by others, and to indicate the source of the goods. Note: Service mark does the same for services.
 Lanham Act creates federal trademark registration system with a variety of federal remedies for infringement
 Trademarks created by state law may be registered with Fed P&T Office (considered constructive notice)
 Post-registration must use in connection with a business within a year; only protected if the mark is used in commerce to sell goods or services and
failure to use a mark for a period of time may constitute abandonment (protection has no durationlimit unless abandoned)
 Non-Functionality doctrine issues: important NOT to inhibit legitimate competition by allowing a producer to control a useful product feature. vs.
Quicker decisions as consumer—e.g., particular yellow of Post Its, or shape of Gold Fish crackers.
Affirmative (1) abandonment of the mark, (2) fair use (3) equitable defenses (laches, unclean hands)
Defenses: Remedies: (1) injunction against further infringement, (2) disclaimer "Not connected with..", (3) monetary judgmt
Rationale: 1) ensures that consumers are not misled or confused about the origin of goods and services
2) encourages quality goods and/or services by allowing the owner a financial reward related to reputation
Policy  Does it incentivize desirable outcomes?
Questions:
Non-  trademarks which may disparage, disrepute, bring them into contempt or falsely suggest a connection with: persons,
Trademarkable: institutions, beliefs, or national symbols (Indian Mascots: Racial or Tribal -- Mostly racial)
Analysis In order to prevail in an infringement action under the Lanham Act, the claimant must establish:
(1) Does the Claimant hold a valid mark?
Intellectual Property: Trademark

(2) Has the defendant used a copy or imitation of the mark "in commerce"?
Dilution: signifies that there is a lessening in the capacity of a famous mark to identify and distinguish a good or service in the
absence of any actual competition with that mark or any likelihood of confusion.
 The owner of a famous mark may obtain injunction against another’s use of mark if the use (a) begins after the first mark
has become famous (b) causes dilution of the famous mark. (2 types of dilution)
a. Tarnishment: an inferior product is placed in commerce which is similar in kind and in trademark to another more
respected product thereby harming the goodwill associated by consumers with the trademarked product (goodwill is
destroyed by a similar product) (Split: show actual economic harm)
b. Blurring: a product is created that prevents or disrupts the original meaning or association to another product;
another company sells something similar that causes consumer confusion as the mark loses association with particular
company
(3) Is the defendant’s use likely to cause confusion, or to cause mistake, or to deceive?
 Would an appreciable number of ordinarily prudent consumers incorrectly think that defendant’s good or service are
related to claimant’s mark?
o Factors considered: (a) the similarity of the marks (b) the strength of the P's mark (c) the similarity of the two parties
goods or services (d) any evidence of actual confusion (e) the defendant's intent.
Receive a  3 requirements must be established to receive trademark protection:
Trademark I. Distinctiveness: Does it allow goods and services of one person to be distinguished from those of another?
o Secondary Meaning: A particular product or service is associated with a “mark” in the minds of consumers
o four categories, in order of strength:
1. Arbitrary or Standing alone, suggests nothing about nature of the product or service, (e.g. Kodak) and therefore is
Fanciful inherently distinctive and requires no proof of acquired secondary meaning
2. Suggestive Uses existing words or symbols, but requires imagination to determine the nature of the products or
services involved (e.g. Coppertone--suntan lotion) and therefore it is inherently distinctive and requires
no proof of acquired secondary meaning necessary
3. Descriptive Describes some aspect of the product or service (e.g. Play-Doh) and therefore does not qualify for
protection unless it has acquired secondary meaning (i.e. that the public has come to associate with the
mark of a particular source for a product or service)
o Qualitex Co: SC held that the use of a color (green-gold) on dry cleaning press pads could be a
trademark, b/c it had attained secondary meaning.
o difficult to disqualify use of a color as a mark b/c it may serve to distinguish which is the basic
purpose of a mark
4. Generic Frequently used to refer to a type of good or service (eg, Jelly Beans) and therefore cannot qualify for any
protection, because it is unable to serve to distinguish their origin.
II. Non-functionality: if aspect of a product is exclusively functional, it may not be trademarked (only patented)
o Functional: if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, i.e. exclusive
use would put competitors at a significantnon-reputation-related disadvantage.
o Trademark law deals with source identification, unlike Doctrine of functionality (trademark ala patent)
III. First Use in Trade: first person/corporation to make use of a mark in trade in a particular geographic area will have secured
protection for the mark within that region however bona fide use in marketing goods or services in the ordinary course of
business is required. (Lanham Act: fed registration is deemed constructive use of the mark throughout the US)

58 | P a g e
 Property Synthesis
Publicity Rights commercial value of a public image does not terminate upon death and therefore is commodify to an extent in property law
 MLK Case: 4 issues
(1) Right of Publicity vs. Right of Privacy, are they different?
 Right of Privacy: the individual possesses a personal/private sphere, cannot be presented without your knowledge
 Right of Publicity: right to exploit your image during your life for personal gain, control what is associated w/ your image
(2) Does the Right of Publicity survive the death and is it inheritable and devisable?
 Right of publicity survives death because the law should incentivize people to act w/out fear of loss of value due to death
(3) If the Right of Publicity is devisable must it have been exploited during the life of the individual?
 Exploiting your image during your life is not necessary to take advantage of it upon your death
o Rationale: Exploiting your image during lifetime is not a necessary pre-condition because there is a right of non-
publicity where a public figure chooses not to exploit their image in that manner during their lifetime
Patent (Constitutional roots, Federal statutory regulation) a patent must satisfy four necessary elements [ (1) patentable subject matter (2) utility (3)
novelty (4) non-obviousness to be approved by U.S. Patent and Trademark Office (Broad in rights limited in Duration to encourage innovation)
 Patent is referred to as hard IP while the rest are referred to as soft IP
Cultural Property Traditionally referred to tangible resources w/ distinct relationship to a group of people that reflected their cultural heritage or identity
(Liberty Bell, Statute of Liberty, etc.), today however it extends to intangible resources (Star Spangled Banner—the song)
 The owner is conceived of as a people rather than as an individual (Nation States)
 Geographical indications: cultural property issue framed by a location of origin, and is principally used to resolve imbalances in trade
 Questions:
(1) Is it property at all?
(2) How do we conceive of nation states request for repatriation of goods removed?
 2 responses: (1) Your descended from them but you have no greater claim than we do (2) You are not related to
them so you have no greater claim than we do
(3) Preservation vs. Repatriation? Market Nations w/out cultural property acquire other nations property, Source Nations that
are rich in artifacts but have little money (illicit trade for the products) – M/Nations argue that they have money to protect it
 Hague Convention: Prevention of looting during war time and the destruction of antiquities – Cultural Internationalism Position
 UNESCO: intangible objects -- Cultural Nationalism Position
 UN Declaration:
 National

59 | P a g e
 Property Synthesis

Exam notes
Considerations:
1. gather facts- who, what, when, where and how
2. Consider potential rules and their sources- eg., NJ case. 1st amendment, NJ state constitution, relevant statute,
3. Ask if there is trespass involves? How trespass define in that jx. Criminal or civil trespass?
4. Privilege to trespass? Was there consent, necessity, or public policy reason?
5. Who are the parties involved? Property owner, trespassers, parties’ interests that are important to analysis. Eg., immigrant workers interest.
6. Relationship between parties? Landlord and tenant relationship, employer-employee,
7. Position in society? Power differential? Eg., Shack case. Land owner v. workers
8. Human right issues? Economic interest, freedom of speech,
9. Nature of property? Public, private, quasi-public,
10. Purpose of trespassers? Entertainment, social good, commercial speech, investigative reporting
11. Social policies: incentive, opening communication, exposing fraud and corruption,
Administrative efficiency: rule v. policy, clearer and easier to apply or use a case by case analysis.

Methods of organization
1. By parties
a. Strongest CoA/Defense
i. Elements
1. The element in the gray
a. Facts on both sides
2. Policy argument
3. The winner
2. By causes of action
3. By area

60 | P a g e