Property Law)

Acquisition of Property
By Find By Discovery / Capture (1st) By Adverse Possession
Property protection for Common law rule of capture: 1) Actual and Exclusive
lost, mislaid, (judge tompkins’ view- hot 2) Open and notorious
abandoned property pursuit) 3) Continuous
1. Intent to appropriate 4) Under claim of
and for those who have 2. Deprive liberty; AND right/hostile It is the
possession once it is 3. Certain control wrongful possessor’s
found. Constructive possession rule claim of right that must
(ratione soli): be adverse to or hostile
 General Rule: The Mere pursuit is not enough (deliberately taken from
To establish Title in common law the true owner)
finder has greatest
of a wild animal, you must first & against successive owners
right than entire possess it Objective test (Majority view):
world except the Possession → title  Did not inquire into the
true/rightful owner  Property law is not motives of the possessor
necessarily about “things” but o Court concluded that it was
it’s about the relative claims time to get rid of the
- Armory v Delamirie that individuals can make “openly hostile”
- Hannah v Peel with respect to that thing requirement
o A←> B ←> C Any entry and possession for the
If found on your land, is the required time that was 1. Exclusive 2.
Unless we are speaking of:
finder’s over yours, generally. title to land Continuous 3. Uninterrupted 4. Visible
5. Notorious would support a claim of
- Not underground Title to Chattel (Personal property)
adverse possession even if made by
 Prof wants us to use each
Unless custom plays a role element as an issue for a mini
mistake
Subjective Test
Ghen v Rich IRAC
Good Faith belief – looks to mindset of
wrongful possessor
“First Occupancy” principle is used to
Good faith yet mistaken
make decisions to craft
belief to equate to hostility
element
Custom in the industry also plays a role
in some instances

By Gift Subleases/Assignments
1. Donative intent Assignment  Entire interest
Courts do not enforce conditional gifts
Testamentary intent: need to draft a will that satisfies
Sublease  tenant has remainder interest
elements
Expressed intent can suffice  oral or written Ernst v Conditt
Conduct of donor can also qualify as intent
2.Manual delivery Kendal v Ernest
Physical transfer of the gift
If it can occur, it MUST occur
If it can occur, but does not, then no transfer of gift
If manual delivery is impractical, then talk about constructive
delivery or symbolic delivery
Cannot satisfy this requirement by just merely saying
something
3. Acceptance (presumed)
Inter vivos = irrevocable
Gift causa mortis  IMMINENT death & revocable
Newman v Bost
Gruen v Gruen
 The Estates System
Type of Estate Freehold Estate? Future interest by Future interest held by
grantor? 3rd party?
Fee Simple Absolute Yes No future interest No future interest
Fee Simple Determinable Yes Possibility of Reverter Executory interest
Fee Simple Subject to Yes Right of Re-Entry Executory interest
Condition Subsequent
Fee Tail Reversion Remainder in fee simple

Life Estate Yes Reversion Remainder: vested or

contingent
Life estate Pur autre vie (for Reversion Remainder
the life of another)
Term of Years, periodic No Reversion Remainder
tenancy & tenancy-at-will
(leasehold)
Fee simple absolute: “to A & her heirs”
What happens if a person dies?
1. testate (w/ valid will) devised to devisees
2. intestate (w/o valid will)  real property descends to heirs
3. escheats if land owner dies intestate, land will escheat to the state
Fee Tail: “to A & the heirs of his body”
Life estate: “To A for life”
Life estate Pur autre vie (for the life of another): “to A for the life of B”
Term of years: “to A for [time]”
Periodic tenancy: “To A from year to year”
Tenancy-at-will: “To A, so long as we both are willing”
Fee simple determinable: “land to X, so long as Y”; “while”; “unless”; “until”
 Fee simple subject to condition subsequent: “to A & heirs, but if [condition/event] then Grantor retains right to re-
enter”; “however,”; “provided that”; and “on the condition that.” Specified future event occurs AND grantor
takes additional step to reclaim property (ex a formal eviction)
1. Property reverts back to grantor
2. Grantee is left with nothing

Future Interests:
1) Possibility of Reverter  ONLY for fee simple determinable (automatic)
2) Right of re-entry  ONLY for fee simple subject to condition subsequent
3) Reversion  any other future interest held by Grantor
Remainder  follow something legit there, not contingent (to A for life, then B)
4) Vested remainder  someone known and no conditions precedent
a. 3 Kinds: (1) indefeasibly vested, can’t fuck with; (2) vested remainder subject to complete defeasance/total
divestment (To A for life, then to B, but if B dies before 100 then to C); (3) vested remainder subject to open
 to a group where at least 1 person is known, but group could get bigger (To A for life, then to B’s
children)
5) Contingent remainder  created in unascertained/unknown person or subject to condition precedent or
both (“To A for life, then to B’s wife” & B isn’t married)
6) Executory interest  condition to get the land is in 3rd party’s hands (paired with executory limitation
(EL))
a. Shifting  “To A, but if B ever gets married then to B”, interest shifts, B is theoretically in a
position to interrupt
b. Springing  “To B, if B marries”  right “springs” from grantor when condition is fulfilled
o O Conveys to “A and his heirs, but if A dies without issue surviving him, to B and her
heirs.”
There is a condition A: has a defeasible fee simple subject to an executory limitation (can be taken away bc of a
condition subsequent) → will not end naturally (Has an executory limitation)B: executory interest in Fee simple
 Estate

Freehold Estate Nonfreehold Estate

Life Estate (To A for life, To A for

Fee Simple Term of Years (To A for [time])
the life of B)

Fee Simple Absolute (to A & Periodic Tenanct (To A from year
Fee Simple, Qualified
heirs, forever) to year)

Fee Simple, Determinable (To A, Tenancy at will (To A so long as

so long as X) we both are willing)

Fee Simple Subject to Condition

Subsequent (To A & Heirs, but if
Tenancy at Sufferance
[condition/event] then Grantor
retains right to re-enter)

Fee Simple Subject to Executory

Interest (To A, but if B ever
marries then to B; To B, if B
marries)
Duties of Landlords
1. Implied warranty of habitability
2. Delivery of possession
3. Covenant of quiet enjoyment
a. Breached by actual/constructive eviction
Village Commons v Marion County
Defaulting Tenant  Berg v Wiley; Sommer v Kridell

Co-Ownership / Concurrent Interests

1. Tenancy-in-common  no right of survivorship
2. Joint tenancy  4 unities, right of survivorship
a. Time, title, interest, possession
3. Tenancy by the entirety (only husband & wife)
Spiller v MacKereth; Delfino v Vealencis; Hams v Sprague

Transfers of Land
Statute of Frauds: Must be in writing.
Marketable title  Duty to disclose defects
Deed (1) Granting Clause & (2) Description of Property (accurate) + Delivery
1. Quitclaim Deed  weakest
2. General Warranty Deed  best, 5 covenants
a. Seisin
b. Right to convey
c. Lack of encumbrances
d. Quiet enjoyment / covenant of warranty
e. Further assurances
3. Special Warranty Deed  no problems while I owned it but unknown before that.
4. Wild Deed  recorded deed not in chain of title
Hickey v Green; Lohmeyer v Bower; Stambovsky v Ackley; Johnson v Davis; Jones v Lee;
Kutzin v Pirnie; Sweeney v Sweeney; Brown v Lober

Creation of Easements Termination of Easements

1. By an express grant or reservation 1. Expiration (time)
2. By implication - Prior use or by (strict) 2. Merger of Title
necessity 3. Release by holder of easement
i. Prior use requires 4. Abandonment (clear intent req’d)
apparent servitude, 5. Cessation of purpose of the easement
continuity, necessity (only for easements by necessity)
3. By prescription 6. Destruction of servient tenement
a. Open & notorious, continuous, 7. Prescription  if servient tenement
hostile, under claim of right owner excludes easement holder for
Van Standt v Royster; Othen v Rosier; Willard use for the statute of limitations.
v First Church of Christ; Kienzle v Myers
Covenants
If over 1 year  must be in writing.
A covenant will run with the land if:
1. Must have been in writing
2. Intent of original parties was that it would run with the land
3. Must touch and concern the land
4. Horizontal privity
5. Vertical privity (entire interest transferred)
6. Transferee had actual or constructive notice at time of taking possession
Tulk v Moxhay; River Heights v Batten
 Equitable servitudes only need elements 1, 2, 3 & 6 to be enforceable
Real Covenant to run with the land = (1) Must touch & concern the land; (2) Horizontal privity:
shared interest in the land at time of contract; (3) intent to bind successors

- Mutual Covenant Between Neighbors  no shared interest in land

o Enforceable as contract between original parties
o MAY be enforceable on successors as equitable servitude
o Mutual restrictions on land use.
- Covenants that do not touch and concern the land are still enforceable as contracts
between the original parties.

Eminent Domain (5th Amendment)

1. Any takings by gov’t must be for a public use AND
2. Any gov’t that does take property, even for public use, must fully compensate the
owner of the property.
Kelo v City of New London
“Public Use” can be for: (1) Public Health; (2) Safety; (3) Morals or (4) General Welfare

Regulatory Takings
Standard approach: Ad Hoc Balancing
- PA Coal v Mahon; PA Central v City of New York
Categorical Rules:
1. Permanent physical occupation authorized by gov’t is a taking.
2. Economic use doctrine: If a zoning law eliminates all economically viable use of a parcel
of property then it is a taking per se.
Loretto v Teleprompter; Lucas v SC Coastal Council
 Assignment Lease License Easement
Creation When the original tenant Valid contract Mere right to use. Expressed, implied
transfers leasehold to containing: names of Revocable at will. NO (necessity or prior use)
another tenant for the parties; method interest in land. Oral or by prescription
remaining term. Assignee of payment; agreement.
becomes liable to original description of
lessor & not assignor or property; etc.  Unless licensee
lessee. Transfer of rights spends $ and acquires
where the Assignee steps interest, then becomes
into the shoes of the irrevocable until
original lessee. licensee’s purpose is
complete (Detrimental
reliance)
Writing / SOF The writing is the original Required writing No writing required. Usually by conveyance
lease. must comply with in a deed or some
SOF other written
document (unless
implied)
Termination Terminates at end of Terminates upon the Generally revocable at Mutual agreement or
original lease. date specified in the will. by virtue of the
contract. conveying instrument.
Privity Assignee is not technically Lessee has privity in No privity. N/A
in privity of contract w/ the contract & privity in
landlord during the estate through
possession of the leasehold. possession.
IS in privity w/ estate
Intent Intent of the parties by Intent of the parties Shows if the license will Through language
expressed provisions in the determines the be coupled w/ an (Right of Way etc.)
lease & the parties’ conduct enforceability of the interest. courts will look at
determines the duration & terms of the contract - If so, language of instrument
nature of the use. through the language License becomes + surrounding circs. to
of the contract and irrevocable (licensee determine parties’
the conduct of the spends $ or labor), intent.
parties. license will then con’t
until purpose complete
Notice Prior consent of the original Through the terms of N/A Notice applies to
conveying party. the contract & implied creations
execution by the (necessity & prior use)
parties.
Benefit: N/A N/A Licensee has no interest Dominant estate
Dominant/Servien in the land. benefits, servient is
t Tenement burdened.
Transferability Only if the original lease Assignment & Not transferable b/c it is Runs w/ the land, any
allows assignability. But can sublease if allowed a personal right only. transfer of the servient
be transferred if the lease is under the terms of tenement ALSO
treated as an independent the contract. May transfers the burden of
separate contract req’ consent of the the easement. (Unless
lessor. new owner did not
know and could not
reasonably have
discovered, then
 maybe not)
Recording System:
1) Notice Jurisdiction  1st purchaser’s deed has to be recorded BEFORE the occurrence of
the 2nd purchase to defeat the 2nd buyer.
2) Race Notice  2nd purchaser (bona fide, good faith) record before 1st buyer to win
3) Race Jurisdiction  Record 1st to win (w/ or w/o good faith)
Luthi v Evans; Orr v Byers

Nuisance  Morgan v High Penn Oil Co.

Zoning
- Constitutionality  Village of Euclid v Amber Realty
- Nonconforming Use  PA Northwest v Zoning Hearing Board
- Expanding Aims of Zoning  State ex rel Stoyanoff v Berkeley; City of Edmonds v Oxford
House; Southern Burlington County v Mt. Laurel.