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Why Recognize Property

A) Property = A Legal Construct; human invention. Not result of divine province/natural right.
Property exists to extent government recognizes it. – Legal Positivism

B) Five Theories of Property

1) Protect First Possession – First come, first serve.

(a) Easy to administer; encourages discovery.

(b) Can be arbitrary. Assumes everything is unowned.

(c) Describes how property rights arose; not why society should recognize.

2) Encourage Labor – Mixing labor with resources.

(a) Economic Development & productive use.

(b) Does not describe instances where property is already owned.

3) Utilitarian – Maximize Social Happiness

(a) Promotes public welfare. Maximize social utility. Property = yours to share.

(i) Law and Economics Approach – Property exists to ensure owners use resources in efficient
manner/maximize economic value.

 Economy reaches optimal level of production when: (1) valuable, scarce resources are
owned by someone (universiality); (2) owner has incentive to improve property
(exclusivity); (3) everyone is stuck where they are with what they have (transferability)

(b) Goes against “mine to do what I wish” notion of property.

4) Ensure Democracy – ensure everyone has some private property (Republican appro.)

(a) Less Prominent today. If you own something, you’re less dependent on gov’t. Today, this is
now you’re salary, not necessarily your property.

(i) Citizens are independent of government; Owning property made you independent of
the state.

(b) We recognize ownership because it provides person with economic security & necessary to make
political decisions that serve public good.

5) Facilitate Personhood

(a) Property derives its value from person who owns it (ie: a family jewel)

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(i) Property is necessary for individual’s own development and sense of self. People have
connection to tangible things (movie fanatic).

(ii) To achieve proper self-development, individual needs control over resources in external
environment.

C) Pierson v. Post (1985)

1) Facts: Post and his doges hunted, chased, and pursued fox along beach. Pierson was aware of chase
and killed fox/carried it off. Post claimed legal possession to fox.

2) Holding: Pierson gained possession of fox when he intercepted and killed it.

(a) Post never owned by simply pursuing. Even wounding an animal will not give right to
possession.

(b) Follows first-in-time approach. Pierson was first to kill.

(i) Labor: technically both put labor. Post put a little more in hunting, but Pierson killed.

3) Rule: When do you gain possession? Mere pursuit of an animal does not give legal right to it.

(a) Animal must be captured/killed. Restrict animal enough to point where it’s yours.

4) Dissent: Pursuit should be sufficient—serves useful purpose to encourage hunters to rid countryside
of “noxious and wild beast.” Post mixed his labor, so he should get it.

D) White v. Samsung Electronic America, Inc. (1993)

1) Facts: Samsung made advertisements depicting robot that resembled Plaintiff’s image. Plaintiff is
famous hostess of Wheel of Fortune. Plaintiff did not consent to use and was not paid; claims
intellectual property infringement based on use of “likeness” & common-law right of publicity.

2) Holding: A robot is NOT a person’s “likeness”; nor is vocal imitation; However, this violates
Plaintiff’s common-law right of publicity, which reaches more than appropriation of
name/likeness.

(a) California statute restricted use of a person’s “likeness” for profit/ads

3) Rule: TV and media create marketable property value to identity. Law protects celebrity’s
property right to this, whether famous by dumb luck or rear talent.

(a) Right of Publicity Elements

(i) Use of Plaintiff’s Identity

(ii) Appropriation of name/likeness to D’s advantage (commercial or otherwise)

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(iii) Lack of consent

(iv) Injury

4) Rationale: Her identity was commercially exploited; Vanna White dresses like this, turns letters,
and does this on same game show. “She’s the only one…”

5) Dissent: This is over-protecting IP right… “now it’s a tort for advertisers to remind public of
celebrity”; raises 1st Am. Concerns.

(a) Plaintiff’s right to use of persona shouldn’t be more important than profit through innovation

E) Discussion
1) Law invests title in person who created entirely new thing (song, book, persona)

2) Dead Celebs – profit a lot from “name/likeness” agreements

What is Property
F) Where Property Law fits into legal picture?
1) Contract and Torts help to ensure property rights.

2) Protecting Property Interest – Defines the entitles that people can enter into contract about, or sue in
tort under.

G) A Bundle of rights/sticks
1) Aetna v. United States – “Property is NOT things, it’s RIGHTS defined by government.

(a) Gov’t sets out limits; property rights are not absolute.

2) Four Sticks in the “Bundle”

(a) Transfer

(b) Exclude

(c) Use

(d) Destroy

The Right to Transfer (Alienability)

H) General Rule – Any owner may aliena te/transfer any of her property to anyone.
1) Policy – Economic Development; vital for efficiency in free market to allow transfer. If there is no
right to transfer, that hinders health econ. Development.
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2) BUT – Scope limited for public policy reasons

I) Johnson v. M’Intosh (1823)

1) Facts: Native Americans sold land to plaintiff. But Defendants were given land by Federal Gov’t.
Action of ejectment – Defendant was occupying land. Plaintiff sought to eject him. Comes down to
“who has title?”

2) Holding: Native Americans did not have authority to transfer complete title to property. Native
Americans only had occupancy rights, not title.

3) Rule: Conquest gives title. Title to land dependent entirely on the law of the nation in which they lie.

4) Rationale: Discovery of America by Great Britain gave absolute right to settle, possess, and use
land.

(a) Native Americans had right to use. If they had ownership rights it would rewrite history to point
where NA can sue for land back.

(b) America/Great Britain gave Christianity and civilization.

J) Moore v. Regents of Univ. of Cal. (1991)

1) Facts: Man had surgery. Doctor took cells out. Doctor/University used cells for a patent for cell line
for $3bil. Plaintiff sued for conversion (claim his blood/tissues were his own property to sell, and
they stole/converted it to own).

(a) Note: Conversion – tort that protect interference with possessory/ownership interest in personal
property. To establish conversion – Plaintiff must show actual interference with ownership/right
of possession.

2) Holding: Excised human cells are not property. Once cells were outside body, they no longer
belonged to Plaintiff.

(a) BUT – a doctor MUST disclose his INTENT in using patient for research/economic gain.

3) Rule: Replenish-able organs (ie: tissues/cells) of body once they’re extracted are not your property.

(a) Vital Organs – different from replenish-able. You have a right to transfer, with limitation; e.g. –
cannot transfer for profit.

4) Rationale: Not a case of abandonment = he went to have surgery.

(a) Case is about “knowing/asking” what will happen to cells.

(b) Two reasons Plaintiff did not have ownership – (1) no judicial precedent; and (2) Cal. Statutory
law limits any continuing interest.

5) Policy: Encourage Research. Don’t want to hinder socially useful activity (cell research).
Greater benefit to public. Don’t want to restrict doctor’s access to necessary raw materials.
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(a) This is matter for legislature.

6) Dissent: You own your own cells (e.g. can contract with researches to develop/exploit) Plaintiff
retained at least one stick in the “bundle” = transfer right

Right to Exclude
K) “One of the Most Essential Sticks” – (SCOTUS 1979)
1) English common law – any intentional/unprivileged entry into land = trespass.

(a) Exceptions – Privilege, consent, necessity.

L) Jacque v. Steenberg Homes, Inc. (1997)

1) Facts: Steenberg (company) trying to move mobile home and wanted to go through Plaintiff’s land.
It was the easiest way to deliver mobile home (other methods would have been expensive/time-
consuming). Steenberg asked many times; plaintiff refused. Steenberg said “fuck it” we’re going
anyway. Plaintiff sued for damages—wanting punitive damages. Actual damage was a $1.

(a) Trespass: Intentional tort. Actual damages not necessary. Punitive damages may be awarded.
Harm = entry on land. Sacred property right = right to exclude.

2) Holding: Trespass still occurs even if no damage. Punitive Damages are appropriate.

3) Rule: Right to exclude = bright-line rule. Can get punitive damages.

4) Rationale: Deterrence. If no punitive damages are allowed, the right to exclude would be obsolete.

(a) Steenberg was told no. Plaintiffs were old couple. Disregard of their rights was egregious.

(b) Policy Reason – Right to use/economic development would be hurt if you can’t exclude.

(c) Punitive Damages cannot be excessive (violate due process).

(d) Questions Raised: Criminal penalties instead? Put burden on landowner to build fence?

M) State v. Shack (1971)

1) Facts: owner of farm would not let non-profit health workers (attorney offering legal advice and
physician) onto land to help migrant workers. Defendant would not let health workers see the
migrant workers alone (you can see them in the office). The workers wanted to see them alone.
Plaintiff tried to enter anyways. Trespass action.

2) Holding: Right to exclude is not absolute. Private or public necessity may justify entering onto land.
Plaintiff should have been allowed to enter land to render aid.

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3) Rule: Ownership to real property does not include the right to bar access to governmental services
available to migrant workers. Cannot exclude gov’t representatives from entering private land to
provide government aid.

4) Rationale: Property rights serve human values (e.g. dignity health, and welfare). You can’t
take away these rights just because migrant workers live on this farm.

(a) Landlord-Tenant Argument: Not appropriate analogy to look at migrant workers as tenants.
Bargaining power is worse. Court sees as “artificial and distorted” b/c migrant workers are
receiving housing as compensation.

(b) Well being of migrant workers was paramount concern.

(c) Migrant workers would have been allowed to receive visitors of own choice so long as those
visitors are not harmful. Press would be allowed to see them.

5) Policy: Property rights serve human values which are limited by public values

(a) “We find it unthinkable that the farmer-employer can assert a right to isolate the migrant worker
in any respect significant for the worker’s well-being.”

6) Rejected “Preliminary” Arguments:

(a) First Amendment: Not as extensive as Marsh v. Alabama where a company-owned town tried to
exclude handing out of religious pamphlets. Rejected b/c we want to reach decisions on a
decision on non-constitutional basis first.

(b) Supremacy Clause: NJ statute and Fed. Statute conflict. State Supreme Courts don’t want
decisions questioned by SCOTUS, so they kept decision on property-law basis.

7) Implied License: Owners of rural, undeveloped land must have “no trespassing” signs to exclude
hunter b/c hunters have an implied license.

8) Hypo: X tries to removes homeless people from vacant building that he owns. Homeless people
enter building through unlocked door/live as squatters.

(a) Likely come out in favor of X. Migrant workers were brought onto land, but homeless people
had no right of entry.

Right to Use
N) General Rule: Landowner has right to use land in any way where it does not harm rights of others.
1) Common Law Nuisance Doctrine

(a) Exception to right to use. Does not require malice/intent. Odor, noise, etc. restrict the right to
legitimate useful conduct.

O) Spite Fence Doctrine

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1) Cannot use your land for the sole purpose of injury to others. Cannot erect a fence that blocks
sun from neighbor’s home.

2) Sundowner v. King (1973)

(a) Facts: King bought motel from Bushnell in 1996. Bushnell built hotel right next to King. King
constructed huge fence/sign right next to hotel that restricts light into rooms/diminish property
value.

(i) Motive – Get back at you. Economic incentive (if I screw you over, I get more money).

(b) Holding: Held for Bushnell cause King was being an asshole.

(c) Rule: Spite Fence Doctrine. No property owner has right to erect and maintain and otherwise
useless structure for sole purpose of injuring neighbor.

(i) “Useless Structure” – Debatable if you need to show the structure was useless. Whether or
not spite fence doctrine applies may be based on the degree of “usefulness” of structure.
May give rise to action for injunctive relief.

 Analogize!

(ii) “Intent” – Some jurisdiction require malice/intent; others do not. Intent can be difficult to
prove.

(d) Rationale: Good for community/fairness.

3) Prah v. Maretti (1982)

(a) Facts: P residence has solar panals. D bought land adjacent to P. P warned “don’t build south”
because they obstruct sun/solar power. Defendant began to build anyways, restricting sunlight.
Unsure of how much solar power was restricted b/c suit was for injunctive relief to restrict
building.

(b) Holding: Right to use is limited by more than just “spite fences”, but also by nuisance law. Here,
private nuisance law applies.

(i) Elements of Nuisance

 Intentional – putting house there. Don’t have to intend harm. Akin to trespass.

 Non-trespassory – home is interfering, not trespassing.

 Unreasonable – Fact-specific. Based on gravity of harm (e.g. solar panels being

useless.)

 But…D wanted an “unobstructed view to lake”

 Substantial interference – blocking solar collectors; not getting benefit.

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 Use & enjoyment of Plaintiff’s land.

(c) Rule: Obstruction of access to light may be found to constitute nuisance in certain
circumstances. Private nuisance law has flexibility to protect both landowner’s right of
access to sunlight and another landowner’s right to develop.

(i) Old rule was to allow obstruction of sun because (1) it was only aesthetically useful; and (2)
don’t want to impede land use

(d) Rationale: Times have changed; we should change! Utility Theory.

(i) Changing social values. Sunlight/solar power has become much more socially useful. Court
reconsiders past case that said “landowner doesn’t have right to access to sunlight.”

(ii) “Policy of favoring unhindered private development in expanding economy is no longer

in harmony with realities of society.”

(iii) Sunlight has been increasingly regulate for general welfare; taken on new significance as
source of energy; land development no longer as important (most land has been developed).

(e) Coase Theorem: Initial allocation of resources irrelevant to economic efficiency b/c affected
parties will reach an efficient allocation through bargaining.

(f) Hypos: House w/ energy efficient windows. Distinguishable: “alternative energy prong is much
weaker” than in Prah. Other sources of energy available.

Right to Destroy
P) General Rule: A logical adjunct to right to use. Inevitable that most property will be destroyed.
1) Difficulty: Destroying property that has value to others outside the owner.

Q) Eyerman v. Mercantile Trust Co. (1975)

1) Facts: Owner of property in upscale neighborhood (Kingsbury Place) wants to destroy her property
when she dies. No explanation for destruction. This would affect property values of entire
neighborhood—be a “missing front tooth.” Demolition would result in “unwarranted loss to
neighbors/public causing depreciation of at least $10k. Place of “high architectural significance.”

(a) It was an historic landmark. Wanted to preserve history.

2) Holding: She can’t do this because of impact to public. To allow executor to exercise such power
stemming from apparent whim and caprice of the testatrix contravenes public policy.

3) Rule: Balancing Test. Balance interest of landowner to interest of public. “A well-ordered society
cannot tolerate waste and destruction of resources when such acts directly affect important interest of
society.”

(a) Right to destroy limited by “wanted, useless destruction.”

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4) Rationale:

(a) Death is important distinguishing factor: More weight/deference to property owners who are
alive.

(i) “If Johnson was alive, she would have had right to destroy.” –Prof. Kahan.

(b) Concerned about waste/destruction of resources.

(c) Intent: Look at. If you’re not acting rationally & against public interest, law steps in for public
good.

(d) Not all about depreciation in property value. Just a factor.

5) HYPO: C sells home, buys $2mil in stamps, and burns them for art purposes. Here, this would be
allowed because (1) C is alive; and (2) there is a purpose. Also, not affecting others’ rights.

Owning Real Property

R) Categories of Property
1) Real Property – Rights in land and things attached to land (fences, trees, etc.)

(a) Three Aspects of Real Property Law

(i) Adverse Possession

(ii) Vertical limits of ownership & Water Law (did not go over, don’t worry a/b)

2) Personal Property – Rights in moveable items and intangible things (e.g. patents, stocks).

S) Adverse Possession (Title by theft, robbery, acquisition w/o paying)

1) ELEMENTS

(a) Actual

(i) Physically use land in same manner as reasonable owner given its nature/character (e.g.
summer home)

(b) Exclusive

(i) Just you. Cannot be shared with owner or public

(c) Open and Notorious (Obvious)

(i) Not hiding the ball. Visible & obvious if owner made reasonable inspection

(d) Adverse and Hostile (2-prong)

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(i) No permission. Possession cannot be authorized by owner—no consent.

(ii) State of Mind.

 Split Jurisdiction; either:

 Irrelevant (majority of jurisdictions); discerning intent is guesswork. “Putting down

roots and maintaining them is enough” – (Holmes, J.)

 Must be good faith use – think land is yours (some); allows for AP when there is a
mistake of deed.

 Bad faith – must know land doesn’t belong to you. (small minority); encourages best
use of land—if true owner isn’t using, someone should take.

(e) Continuous use for statutory period

(i) “Continuous” – dependent on character, location, nature (e.g. summer home)

(ii) “Use” – Exploiting in some way. (E.g. planting crops; hiking does not qualify b/c you’re just
passing through)

(iii) Statutory Period (5-40yr range in states)

2) Justifications Behind Adverse Possession

(a) Prevent frivolous claims (statute of limitations)

(b) Protects title. When someone receives the “stolen” property, it protects title defect.

(c) Encourage productive use (if owner isn’t using, we want someone to)

(d) Personhood

3) Gurwit v. Kannatzer (1990)

(a) Facts: Gurwits thought he bought land, but actually belonged to Grueder. A road divided the
lands and disputed land was on Gurwits’s side of the road (but was Grueder’s land). Both parties
though land belonged to Gurwits, who used land (cut trees, assisted with downed trees, put up
“no trespassing signs”, potted plants etc.) for 20-years.

(b) Holding: Adverse possession was met. Therefore, Plaintiff had ownership.

(c) Rule: Adverse possession of property gives ownership rights.

(i) Adverse/Hostile – Court favored good faith belief, even in jurisdiction where state of mind
was irrelevant. Put up no trespassing signs.

(ii) Exclusive – Property was held for themselves, not others. Where use of disputed property is
by 3rd-party, it prevents adverse claim.

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(iii) Actual Possession – Possession was actual because of “actual dominion” over property.
Does not require use/occupy every foot of land. Here, activities of gathering firewood,
cutting trees, grazing cattle qualify.

 Recreational land use is not considered “actual”

(iv)Open/Notorious – Cut down bushes. Put up signs.

(v) Continuous use/possession – does not require continuous occupation; reasonable owner’s
use.

4) Van Valkenburgh v. Lutz (1952)

(a) Facts: Lutz builds home and reaches it by walking across vacant lots. Lutz built walkway along
these lots and started farming them. Van Valkenburgh then purchased nearby lots and his
children went on the vacant lots to play. Lutz chased children away with pipe. Can Lutz exclude
Van Valkenburgh from vacant lots through adverse possession?

(b) Holding: Lutz did not have adverse possession of vacant lots. Issues here = no proof of “actual
occupation” when you simply farm the land/walk through.

(i) State of Mind: Lutz admitted that land was not his during a prior easement action.

(ii) Occupation must be under a claim of title

(iii) No “actual use” – you just used to get to/from your own home. Building a garden &
farming land isn’t enough to establish “use”.

(iv)Lutz conceded he didn’t own the property in a prior easement proceeding.

(c) Rationale:

(i) Improvements to land were minimal/none.

(ii) Elements of actual use: (1) premises protected by substantial enclosure; or (2)usually
cultivated or improved

 Property was not protected by “substantial enclosure” and land was not cultivated
enough; cultivation of land incident to making a garden did not actually utilize all of the
premises.

 Improvements were “junk” ; “rubbish” etc.

(d) Comparing Gurwit and Van Valkenburgh

(i) Gurwit claimant did a lot to acquire AP, but Van Valkenburgh did minimal

5) Fulkerson v. Van Buren (1998)

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(a) Facts: Fulkerson owned land that abuts a highway that Defendant-Church (Van Buren) was near.
Church began using church buildings on Fulkerson’s land (without permission) as a place of
worship of 9 years;church made improvements. Fulkerson wanted Van Buren to vacate; Van
Burden didn’t. Church claimed AP.

(b) Holding: Because church recognized Fulkerson’s ownership, Ct. found no adverse possession
because church did not have requisite intent of adverse/hostile.

(c) Rule: Court applies bad faith: Intent for adverse possession = claim land at issue under
right, title, or ownership

(i) Intent = (1) know that you’re not true owner; and (2) intent to claim title

 Intent is not possession in conformity to superior right of true owner; it is intent to have
title.

 Hostile in intent, not just actions. Need to know it’s not your land/intend to take the land.

(d) Rationale:

(i) Rev. Van Buren said he recognize Fulkerson owned. Van Buren contacted Fulkerson to give
quitclaim deed to church; Fulkerson refused.

(e) Policy behind bad faith: maximize economic efficiency in shifting title

6) Tioga Coal Co. v. Supermarkets Gen. Corp. (Pa 1988)

(a) Facts: Strip of land bordered Tioga’s property, but located in Supermarkets’ property. During
30yr period, Tioga controlled ingress/egress from the strip and used it during those years. Tioga
thought true owner was the City.

(b) Holding: Intent is irrelevant. If true owner has not ejected trespasser and all other elements of
AP are established…hostility will be IMPLIED, regardless of subjective intent.

(c) Rule:

(i) “Hostile” – NOT ill will; implies an intent to hold title against record owner.

 “If owner abandons land that is possessed by another for statutory period …the trespasser
has put down roots which we should not disturb”

(d) Rationale:

(i) Promote land use; personhood interest.

T) Proving Adverse Possession

1) Two Situations:

(a) Quiet title action fto confirm title (Gurwit)

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(b) Raise doctrine as defense to owner’s lawsuit to recover possession (Van Valken)

2) Judicial action not needed to obtain title

(a) Just need to meet elements of Adv. Poss.

U) Doctrine of Tacking
1) Two or more occupants can be added together to meet statutory period for Adv. Pos.

2) Howard v. Kunto

(a) Facts: Kuntos had occupied land (summer beach house) for a year in accordance with a deed
that was passed down since 1932. Deed turned out to be wrong (described the adjacent lot), but
the land was passed down to Kuntos and occupied (technically wrongly) for long period of time
(from other owners). Howards learned that they owned land and deed was wrong. Howards filed
action to quiet title; Kuntos asserted adverse possession as a defense.

(b) Holdings:

(i) Occupying beach house during summer counts as “continuous”

(ii) Uninterrupted occupancy of land during summer months for more than 10 years (combined
between Kunto & predecessors) counts as continuous possession for statutory period.

(c) Rule: Passing down a deed constitutes privity to allow for tacking for AP

(i) In order to establish tacking, you must show privity between successive occupants so as
to raise claim of right above status of trespasser

 Privity: relationship between parties recognized by law; reasonable connection between

successive occupants

 Passing down a deed = privity

(d) Rationale:

(i) Settled expectations; recognize good faith (according to error in deed)

(ii) Impracticability of purchaser to survey land to ensure description in deed matches property
owned.

Owning Personal Property

V) Four different ways to acquire rights in chattel:
1) Capture

2) Find

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3) Adverse Possession

4) Gift

W) Rule of Capture

1) State v. Shaw

(a) Facts: Criminal case. Shaw accused of stealing fish. They said they got fish by lifting nets that
belonged to Grow and Hough (nets were property of Grow/Hough). Fish could swim in/out of
nets; Shaw’s boat later found with fish on it. Question: Did fish belong to Grow and Hough
before Shaw took them.

(b) Holding: Grow and Hough, as owners of the nets, captured the fish and acquired property rights
in them; taking them was larceny They could have just as easily raised nets to get fish as
defendants.

(i) Possession of nets was enough to establish possession of fish.

(ii) Escape:

 If escape is possible, then no possession. Court focuses very little on possibility of fish
escaping from nets.

(c) Rule of Capture: Capture (and property ownership) occurs when control is “complete and
certain”; need not show unequivocal control.

(d) Rationale

(i) Labor theory – Grow and Hough’s bought nets and found good fishing spot

(ii) Class Discussion: civil or criminal penalty appropriate. Lower application of ownership in
this case creates argument against criminal penalty; but see the fact that fish are peoples’
livelihoods…

2) Popov v. Hayashi

(a) Facts: Barry Bonds hits HR #73 and there’s a scuffle for the ball. Ball landed in webbing of
glove of Popov; not clear if it was secured. Hayashi got pushed over, saw loos ball, picked it up
and took it. No solid proof Popov truly caught ball.

(i) Issue: Popove claims possession first; Hayashi claims conversion.

(ii) Ball was owned by Major League Baseball. When hit, it became abandoned. First in
possession is new owner.

(b) Holding: Equitable Division: split the baby; both men have equal claim to the ball.

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(i) Sale is forced. Ball is sold/proceeds shared. Hayashi’s claim is compromised by Popov’s pre-
possessory interest, but Popov cannot demonstrate full control. Popov has pre-possessory
interest; Hayashi has property rights. Thus, both parties have equal, undivided interest in ball.

(c) Rule: When actor undertakes significant but incomplete steps to achieve possession of
abandoned property and the effort is interrupted by unlawful acts, the actor has a legally
cognizable pre-possessory interest that amounts to a qualified right to possession.

(i) Pre-possessory interest: qualified right to possession (e.g. wounding the fox in Pierson v.
Post). Interception of ball before possession – not a pre-possessory interest.

(d) Gray’s Rule/Custom Rule: Baseball is caught when actor catches ball, stops moving, and
retains control (after incidental contacts with people/things). Then, possession is had.

(i) Here, contact was not incidental because Popov was attacked for the ball.

(e) Rationale

(i) Difference between attacks and incidental contact.

(ii) Trying to minimize violence/force to obtain control. But Hayashi didn’t cause fight. If he did,
Court would have found differently.

(iii) Personhood – Court only sees the ball in terms of monetary value; does not care about
personal interest. So it “forced a sale.”

X) Rule of Finders
1) Basic Rule of Finders: Finder of object has superior claim/property right to anyone except the
rightful owner

First person to find/steal has rights against subsequent stealers. Why? Discourage attenuation
between stealers.

2) Categories of found chattel

(a) Lost Property – when owner unintentionally and involuntarily parts with it.

(i) Bailment: Finder must (1) keep chattel safe; and (2) return to prior possesor

(b) Mislaid Property – when owner voluntarily and knowingly places it somewhere, but
unintentionally forgets it.

(i) Bailment: Finder must (1) keep chattel safe; and (2) return to prior possesor

(c) Abandoned Property – when owner knowingly relinquishes right, title, and interest to it.

(i) No bailment; finder has ownership right.

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(d) Treasure Trove – when owner concealed it in a hidden location long ago; limited to gold, silver,
coins, and currency

(i) No bailment; warrants assumption that owner is deceased (limited to coins/ancient

jewels).

3) Armory v. Delamirie (1722)

(a) Facts: Chimney sweeper found jewel took to defendant (a goldsmith shop) to find out what it
was. Defendant’s apprentice took out stones and weighed it. Defendant offered money but
plaintiff asked for jewel back. Apprentice gave back without stones in it.

(b) Holding: 1) Finder of jewel does not have absolute ownership, but has property right against all
but rightful owner; and 2) Respondeat Superior – apprentice took jewels out, but action is
attributable to owner; master answerable to servant’s neglect;

(c) Rationale:

(i) Don’t want a bunch of people stealing; keep line of possession closest as possible to original
owner.

4) Hannah v. Peel (1945)

(a) Facts: Peel was conveyed house that he never occupied for two years; house was requisitioned
for War effort to soldiers and Peel compensated 250pnds/mo. Hannah (a soldier) finds brooch on
window ledge, took home, and eventually turns into police. Rightful owner not located and
police gave Brooch to Peel (owner of house), not to soldier (Hannah), despite fact that Peel never
knew of brooch. Peel sold, and Hannah demanded return of brooch

(b) Holding: Because Peel was not physically present in the house at any time, Hannah’s find was
defensible against all parties except rightful owner.

(c) Rule: If a person finds object while employed by property owner, he finds an object for
property owner and not himself—so long as property owner exercises control over property.

(i) EXCEPT: Finder has right to possession of chattel found in home of another, when the
owner of the home never occupied the house.

(d) Rationale:

(i) Key Fact: Defendant never occupied house and could not have right of prior possession.

(ii) No constructive possession to Peel b/c it was incumbent on him to inspect the house; he
didn’t & didn’t know the brooch was there.

5) McAvoy v. Medina (1866)

(a) Facts: Customer found purse and left with Defendant-barber shop, so barber shop could find
rightful owner. No rightful owner found and customer made demand for return of pocket-book.
Customer sued for return of purse.
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(b) Holding: The purse was not lost property; instead, it is mislaid. Thus, neither customer or barber
shop had property interest; only original owner.

(i) Plaintiff acquired no right in finding the property; defendant acquired no right in receiving
and holding the property.

(c) Rule: A mislaid chattel belong to owner of the scene of the event, not the finder; the owner
(barber shop) is more likely to get back to true owner if it stays in place where it was mislaid.

(i) Mislaid Property = (1) willfully placed object somewhere; (2) with intent to return

 Look to (1) type/worth of object; and (2) where it was left

(d) Rationale: Purse was left on counter; owner never intended to depart from it. A reasonable
owner would seek the purse back.

(i) Owner of pocketbook would only know about barber shop, not the person who found it
within. So we keep pocketbook where it was left, when mislaid.

6) Haslem v. Lockwood (1871)

(a) Facts: P employed two men who rake manure that accumulated in public street, intending to
carry it away next day. Before P could carry away, D found the manure and hauled off. Manure
scatted on ground was personal property, not real.

(b) Holding: P had not abandoned the manure; P was not given reasonable window to secure
manure. New trial held for P. Abandoned property belongs to P, the first occupant, who
“changed its original condition and greatly enhanced its value.”

(c) Rule: Finder of personal property is entitled to keep only if there is a reasonable window to
secure the property.

(d) Rationale:

(i) Labor theory = P hired men to remove a “public nuisance” (manure); expended all the labor
here.

Y) Law of Shipwrecks
1) Salvage Law v. Finders Law

(a) Salvage law – gives finder reward, but not ownership

(b) Finders law – gives ownership

(i) Issue: is item: 1) lost; 2) mislaid; 3) abandoned; or 4) treasure trove

2) Benjamin v. Lindner Aviation (1995)

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(a) Facts: After owner of airplane defaulted on loan, Bank took ownership of airplane. Bank took
plane to Lindner Aviation for routine inspection. Employee of Lindner (Benjamin) found money
in plane’s inside panel (left wing), which was left in stacks and covered in foil. Panel was
rusted/not inspected in years. Benjamin reported money. DJ action between Benjamin, Lindner,
and Bank as to who owns money left in plane.

(b) Holding: As owner of plane, the money belongs to the Bank, who has most superior right to
possession (except true owner).

(i) THIS IS MISLAID PROPERTY: hidden, carefully tied bills = intentional

 Mislaid property belongs to owner of premises where found; Here, the premises = the
AIRPLANE. Owner of airplane = Bank.

 Since it’s mislaid, Benjamin gets nothing.

(ii) Not a treasure trove: no evidence of age of airplane or date of last inspection. Not there fore
long enough; money was only printed 30years ago.

 Need to have enough time that you’re sure the owner is dead.

(iii) Not “lost” property: in airplane wing; did not fall from someone’s pocket.

 If lost, Benjamin gets finders fee.

(iv)Not abandoned: Logic/common sense. Don’t leave $18k in airplane. Location is a place of
safekeeping.

 If abandoned, Benjamin would get money.

(c) Policy: Ask question – if true owner attempts to locate, where would he first look? The
airplane/with Bank or repossessed.

(i) Presupposes someone looking for money. Hard for Court to imagine someone isn’t looking
for $18k.

(d) Intent of Owner: Although it’s almost always unknown, it’s usually determinative of the four
categories (lost, mislaid, abandoned, treasure trove)

(e) Without intent: look at type of property; character of finder; place of find

(f) Items in soil: belong to landowner.

3) Employee Finder: usually belongs to employer; not here where there was distinction

4) Statutory Approaches: finder must 1) notify & deposit article with police/gov’t official; 2) publish
notice of find. Not claimed in 6-12mo = title vested in finder

Adverse Possession of Chattels

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Z) Different from real property

1) Policy: encourage productive use; protect personhood; correct title defect; avoid stale claims

AA) Rule for AP of personal property

1) Actual

2) Exclusive

3) Open and notorious – used as normally would; displayed in open

4) Hostile

5) Continuous for statutory period – 2-6yrs; allows tacking if there’s privity

BB) Reynolds v. Bagwell

1) Facts: Defendant bought violin for daughter that turns out to be stolen and worth a lot. Plaintiff was
original owner & found out 5yrs later it was in D’s possession.

2) Holding: Statute of limitation starts running at the time the owner is aware that violin was stolen;
not time when owner first had knowledge thereof.

(a) Open & Notorious Issue – hard for P to know since it’s a violin; but, there was no evidence of
concealment. Violin was used as it normally was—brought to lessons, took home, etc. Only
change was removal of a varnish (after awhile of owning).

(b) Concealment – has to be completely concealed for SoL not to run.

CC) Discovery Rule – SoL runs when owner discovers (or reasonably should discover) location of
chattel.

1) O’Keeffe v. Snyder

(a) Facts: P owned 3 pictures that were stolen from NY art gallery in 1946, and did not do anything
(tell police, advertise, etc.) to locate them. 25 years later, P reported the theft. In 1975, P learned
paintings were in at another art Gallery, and that paintings were sold to D from there. D asserts
he purchased paintings for value and had title by AP.

(b) Holding: Lower court applied wrong SoL rule; Reversed and remanded to apply discovery rule
—re: whether due diligence, etc. was used, etc…

(i) Shifts the focus of AP to the person claiming AP, not to the possessor.

(c) Rule: Discovery Rule – SoL starts running when P discovers (or reasonably should have
discovered) in exercise of reasonable diligence location of chattel.

(i) Factors: (1) due diligence of P at time of theft; (2) effective method to discover location; (3)
if registering paintings would put a purchaser on constructive notice
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(ii) So long as P is making good faith effort to track down, SoL won’t toll.

(d) Reasoning:

(i) Paintings are hard to find; kept in house, not moved around.

(ii) P did tell her friends, but that’s it.

(e) Case Settled Before Finding of Due Diligence. P got one painting; D got the other; the third
was sold for attorney’s fees.

DD) Void vs. Voidable Transaction

1) Void = no legal significance at inception

2) Voidable = can acquire rights through adverse possession

(a) UCC Approach: Thief must obtain AP first before innocent bona fide purchaser obtains title;
otherwise, true owner has title.

(i) HYPO: X steals antique chair from neighbor Y, places on craiglists, sells chair to unknowing
B for $150. Chair is still owned by Y.

(ii) HYPO: M purchases historic table from O, sells to P for profit. M’s check to O bounces. P
still owns. M has voidable title, b/c he paid but there was defect.

(iii) HYPO: D take bureau to furniture store to be repaired, salesperson at store makes
mistake and sells to customer C. C owns furniture b/c D entrusted possession to a
merchant; protect bona fide purchaser

Gifts – immediate transfer of property rights from donor to done w/o payment or other consideration
EE) Inter Vivos Gift: ordinary gift made during lifetime; (e.g. birthday present)

1) Elements

(a) During lifetime of donor – donor must not be about to die

(b) Donative Intent – donor must intend to make immediate transfer

(i) Donor must intend to make an irrevocable, present transfer of ownership

(c) Delivery – delivered to done so that donor parts with dominion/control

(i) Manual Delivery – physical transfer

(ii) Constructive – allowed if physical delivery is imposible/impracticable

(iii) Symbolic – Transfer of object (e.g. a letter) signaling delivery

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(d) Acceptance – Usually presumed; not necessarily take possession

2) Irrevocable – Inter vivos gift is irrevocable upon acceptance.

3) Gruen v. Gruen

(a) Facts: Father gave son painting and wrote it in letter during. But father avoided paying son
inheritance taxes so said “upon his death”. Letters were exchanged.

(b) Holding: This is an intervivos gift, and not an invalid testamentary gift. A testamentary gift
would have had to been made via will.

(i) Donative Intent – Letters conferred title, but not possessory interest

(ii) Son has a present, existing, non-possessory future-interest in painting

(c) Rule: Did donor intent to transfer some present interest? Or give it upon death. Title may
be conferred through inter vivos gift, without donee receiving or having a possessory interest in
the gift.

(i) Delivery – Here, delivery through letters was constructive or symbolic delivery. Need not be
physical delivery.

 Tailored to the circumstances.

(ii) Acceptance – law presumes; here the son bragged about it. That’s enough.

4) Gift By Check. Check must be cashed. Donor retains dominion over funds til’ then

5) Testamentary Gift. Meet statute of wills—1) writing signed by donor; & 2) witnesses

6) Albinger v. Harris (engagement rings)

(a) Facts: P and D in tumultuous relationship. P gives ring to D anticipating marriage. Ring goes
back-and-forth. In final encounter P says “take car, horse, and ring and get out.” Issue: is
engagement ring conditional upon marriage

(b) Holding: P gave D an intervivos gift that was irrevocable upon acceptance.

(c) Rule: Engagement ring was irrevocable gift upon acceptance; not conditional upon marriage.
(minority rule)

(i) Majority Rule re: Engagement Rings = conditional gift upon marriage regardless of fault

(d) Rationale: P recognized D’s ownership and intent to give when he said “take the ring and get
out.”

(i) Policy - Discusses gender prejudice/coverture against women.

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FF) Gift Causa Mortis – Gift of personal property made by living person in contemplation of death
(substitute for will)

1) Elements

(a) Donative Intent

(b) Delivery

(c) Acceptance

(d) Donor’s anticipation of imminent death

(i) Old Age – is NOT “imminent danger/death” must be more specific.

2) Gift is REVOCABLE;

(a) If donor does not die = automatically revoked.

3) Brind v. International Trust Co.

(a) Facts: Before life-threatening surgery, P gave D letter saying “each article is gift causa mortis to
person for whom it mentions” and that it would be “delived…in the event of my death as a
result of said surgical operation”. P survives surgery and dies weeks later from underlying
cause of surgery.

(b) Holding: P gave a gift causa mortis that was automatically revoked when she survived the
surgery.

(i) Donative Intent: text of letter = didn’t anticipate death from underlying cause.

(ii) However – if she died from complications of surgery, gift causa mortis would be effective.

(c) Rule: Donor must die of the illness/peril contemplated in order for a gift causa mortis to be
effective. If that does not happen, the gift is revoked automatically.

(i) Except: if there is a reaffirmance of the gift after survival.

Present Interests
GG) Rights to Present Possession and Future Possession

1) Two Types at Common Law

(a) Freehold Estate – held by nobles/gentry

(b) Non-Freehold Estates – informally created; held by common people

HH) MODERN FREEHOLD ESTATES

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1) Six Types – Present Interests

(a) Fee Simple Absolute

(b) Life Estate

(c) Fee Tail

(d) Fee Simple Determinable

(e) Fee Simple subject to condition subsequent

(f) Fee Simple subject to an executory limitation

2) Estate Transfers – 3 ways to transfer

(a) Deed = (1) Verb = “grant or convey”; (2) also called alienating land; (3) grantor is a living
person.

(b) Will = (1) Verb = “devise”; (2) done by decedent (dead guy); (3) decedent retains NOTHING!
(4) Transferor = testator; transferee = devisee

(c) Intestate Succession = without a will. Verb = Descendable. Recipient = heir.

II) Fee Simple Absolute (Fee Simple) – Holder of land has all property rights.
1) Characteristics – what rights can you give.

(a) Duration- infinite

(b) Associated future interests – no restrictions; can give w/o limit on future interest

(c) Alienable – can transfer w/ absolute rights

(d) Devisable – can leave through will

(e) Inheritable – can leave through intestate succession

(f) No Waste Liability – no one has right to assert waste.

2) “and his heirs” – no longer need magical language

(a) Becomes Words of purchase.

3) Cole v. Steinlauf

(a) Facts: P and D entered into K for sale of real estate. P had a deed that said “to D” but did not say
“and his heirs.”

(b) Holding (No longer good law) – Abence of “heirs” in deed was a defect in title. P should be paid
money.
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(c) Reasoning – court still employing formalistic approach and wants magic words of “and his
heirs” to make it a fee simple sale.

(d) Modern Law: No longer requires “and his heirs” to create a fee simple absolute.

(i) Strong presumption of fee simple because it makes land more marketable.

 Why? Cause you own everything. Can do more with land.

(e) Cannot give property to animals.

JJ) Life Estate

1) Magical Words: “for life” or “until A dies”

(a) Words of limitation –

2) Life Estate Pur Autre Vie (for life of another)

(a) Land conveyed to “B for the life of C”; property rights of B is only during the time C is living

3) White v. Brown

(a) Facts: P was devised house “to live in and not be sold” P said this creates fee simple absolute.
Defendants are remaining heirs of the testatrix and they say “no this is a life estate.” Defendants
say “since it’s life estate, we get the remainder.”

(b) Holding: Law has strong presumption that fee simple is conveyed and the ambiguous
language of “to live in” does not overcome that presumption.

(c) Rule

(i) Strong presumption of “fee simple” if no words of limitation.

 First, if will/deed is ambiguous, look to words/context for intent. If intent cannot be

determined, apply rules of construction.

(d) Rationale

(i) Language was ambiguous because the words “not be sold” is a restriction.

(ii) Fee simple makes land more marketable.

4) Restraint on Alienation – provision in deed/will that limits future transfer of property. If provision
expressly prohibits future transfer of fee simple, it is void against public policy

(a) Why? – don’t want people controlling fee simples from the grave.

(b) Woodrick v. Wood

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(i) Facts: D is trying to prohibit P from destroying barn that rests on a a parcel of land which P
has a remainder interest in. D sued saying it amounts to waste.

(ii) Holding: Court permitted destruction , but awarded value of barn ($3,200) to P because
destroying the barn was not “waste” but actually bettered the property value.

(iii) Rule: When you hold a life estate, you are subject to limitation of waste.

(iv)Three Types of Waste

 Voluntary Waste – affirmative act that reduces property value

 Permissive Waste – failure to take reasonable care of estate

 Ameliorative Waste – affirmative act that leads to substantial change in property (can
include increase in its value). E.g. add a swimming pool

(v) Court says – must be “substantial damage” (diminution in value) to be waste

(vi)Rationale – productive use of property.

KK) Fee Tail

1) Magic Words: “the heirs of his body”

2) Duration – bloodline of person;lives of the lineal descendants of particular person

(a) Four states allow – Mass.; Maine; R.I; Del.

(i) Undermines democracy; freedom of alienation

(b) If done in jurisdiction that does not allow = fee simple absolute

3) Not devisable – automatically goes to lineal heir.

LL) Fee Simple Defeasible – estate that may end upon occurrence of future event. Three types, see
below. Doctrine of waste does not apply.

1) Mahrenholz v. Cnty Bd. Of Schol.

(a) Facts: School gets land through deed saying “so long as land is used as a school; otherwise
revert to grantors herein.” When land stops being used Hutton wants back. School says it’s a fee
simple determinable. P says it’s subject to condition subsequent.

(i) If fee simple determinable – automatically reverts;

(ii) If subject to condition subsequent – right of reentry.

(b) Holding: Deed is not ambiguous. Maybe inartful, but it grants a fee simple determinable because
it reverts back/deals with duration. Deed says it would “revert back”.
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(i) Remanded. To determine if use for storage = “school purposes”

(c) Rationale: (1) the word “only” in deed is same as “only as long as” – similar to determinable;
and (2) lack of the word “may” = automatic reverter.

MM) Fee Simple Determinable

1) Fee simple estate that automatically ends when event occurs

2) Magic Words: “so long as”; “while”; “until”; “during”

(a) Focus on duration.

3) Possibility of Reverter: reverts back to original grantor. E.g. – A gives to B be so long as it’s used as
a church. When no longer used as a church A gets it back.

(a) Cannot buy a right to future possession of reverter

NN) Fee Simple Subject to Condition Subsequent

1) Fee simple estate may be terminated when event occurs

(a) E.g. – transferor takes action.

2) Magic Words: “provided that”; “but if”; “on condition that”

3) Right of entry: original transferor can reenter/retain.

(a) Future interest only retained by transferor or heirs. Cannot be assigned or devised.

4) Freely alienable, devisable, and descendible

5) Metro. Park Dist. v. Unknown Heirs of Rigney

(a) Facts: Land conveyed by Rigney to water company to use to supply City with water. Company
sold to Dakhoma parks dept, which changed use of land to park. Everyone agrees fee simple
subject to condition subsequent (use for water supply to city) not as a park. Key Fact: Heirs of
Rigney waited 50yrs to reenter.

(b) Holding:

(i) You waive/extinguish right of reentry if you wait too long. 50yrs = too long.

(c) Rule: A grantor has a “reasonable time” to reentry in a fee simple subject to condition
subsequent.

(d) Rationale

(i) No adverse possession here because use was not hostile (use as park).

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(ii) Good for alienability/marketability of land.

(iii) Corporation can be person for a remainder; the City is not a person

OO) Fee Simple Subject to Executory Limitation

1) Same magic words as fee simple determinable and subject to condition subsequent

2) Future interest held by third-party and not transferor

(a) Fee simple estate created in transferee that is followed by future interest in another transferee.

3) Don’t have to deal with duration or condition

Modern Future Interests

PP) Future Interest – an existing, nonpossessory property right that may become possessory in the
future.

QQ) Two Types: (1) Future interest retained by transferor; and (2) future interests created in
transferee

RR) Future interest retained by transferor

1) Reversion - arises when transferor conveys estate to third-party which is smaller (in duration) than
the one transferor has. (life estate and Fee Tails)

2) Possibility of Reverter – future interest by transferor who holds in fee simple absolute or others but
conveys a fee simple determinable.

(a) Right of reentry – transferor holds in fee simple absolute but conveys/devises a fee simple
subject to condition subsequent. (must be manually asserted in a reasonable time)

SS) Future interests created in a transferee:

1) Two types – (1) REMAINDER; OR (2) EXECUTORY INTEREST

(a) Remainder – (1) capable of becoming possessory immediately upon expiration of prior estate;
AND (2) does not divest (cut short) any interest in prior transferee

(i) (1) capable of becoming possessory = not actually 100% plausible; just capable

(ii) (2) does not divest = remainder “waits patiently”; nothing they can do but wait until prior
estate expires.

(b) Two Types of Remainders: (1) Vested; and (2) Contingent; Both are alienable, devisable, and
descendible.

(i) Vested = (1) created in ascertainable person; AND (2) NOT subject to condition precedent
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 (1) ascertainable – living & identifiable at time of conveyance (e.g. – if sons not born =
unascertainable; but see if in the womb, they are ascertainable)

 Heirs = Always unascertainable

 (2) No condition precedent – there is NOT some condition/event that must occur before
remainder becomes possessory

 Three Types of Vested Remainders

 Indefeasibly Vested Remainder: (1) created in ascertainable person at time of

conveyance; and (2) not subject to condition precedent)

 Vested Remainder Subject to Divestment: remainder is vested, but subject to

condition subsequent

 Vested Remainder Subject to Open: remainder that is vested in a group of people that
may be enlarged in the future

. E.g. – to children

(ii) Contingent Remainder

 Either created in unascertainable person or subject to condition precedent

2) Executory Interest – WHO DOES IT DIVEST?!

(a) If the future interest divests (cut short) the interest before it, it is an executory interest

(i) Two Types

 Shifting Executory Interest – Divests the transferee

 Springing Executory Interest – Divests the transferor

(b) Is alienable, devisable, and descendible.

TT) Rules Furthering Marketability – Limit uncertainty of time and ownership. Purpose of
these rules is to eliminate uncertainty; don’t like uncertainty as to who owns land at future point. Like
to know who owns, and for how long. Balance desires of dead-hand and future generations.

1) Rule against Perpetuities – imposes time limits on how long uncertain future interests can
continue; requires uncertainty be removed after period of time

(a) No interest is good unless it must vest, if at all, no later than 21 years after some life in
being at the creation of the interest

(b) “if at

(c) Analysis
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(i) Does it apply?

 Applies to: (1) Contingent remainders; (2) executory interests; and (3) vested remainders
subject to open

 Does NOT apply to: (1) vested remained subject to divestment; or (2) indefeasibly vested
remainder

(ii) Identify the lives in being at creation of interest

(iii) Can anyone be born that may affect vesting?

 Identify – this affects 21 year period

(iv)Kill of the lives in being

 Alive or baby in utero

(v) Is there any way this vests in more than 21 years – is the one possibility/set of facts under
which interest would vest too late?

 If YES – rule against perpetuities applies and future interest is void

 So what happens: future interest and any conditions attached to it are gone. Future
interest = void ab initio

 If NO – rule against perpetuities does not apply & interest is valid

 If it “forever fails to vest” (E.g. person w/ future interest can never get the land, then
rule of perpetuities does not apply)

(d) Jee v. Audley

(i) Facts: Audley devised 1000pounds to wife during her life, then, upon wife’s death, to niece,
then, if neice died without children to daughters of Jee.

(ii) Holding: Interest is void as it wasn’t certain to vest w/in 21 years after death of some life at
creation of interest.

(iii) Legal possibility. E.g.: if it’s a 70yr old couple, they’re still able to have children
(though unlikely).

(e) Critics = “too broad a rule”; there’s always a possibility it doesn’t vest w/in 21yrs

(f) Modern Reforms to Rule Against Perpetuities

(i) Wait-and-see approach: interest is void if it does not actually vest within life in being + 21
years.

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(ii) Uniform Statutroy Rule: interest valid if satisfied common law or actually vests within 90
years

(iii) Cy Pres: Court rewrites language of conveyance to honor transferor’s intent and not
have future interest violate common law rule

2) Rule in Shelley’s Case – want to place land in living, ascertainable person

(a) If freehold estate is given to person and, in same instrument, remainder is given to heir (or heirs
of the body) of that person, he takes both the freehold estate and the remainder.

(i) Elements

 One instrument

 Creates freehold estate (fee simple absolute, fee tail etc); not a lease

 Remainder interest in transferee’s heirs (who are not ascertainable)

 Both interests (present possesory and future) belong to transferee

(ii) Example: O conveys “to B for life, then to B’s heirs”

 Remainder – belongs to B. Not his heirs.

 Cannot be a contingent remainder in heirs; instead, it becomes vested remainder in

transferee

3) Doctrine of Worthier Title – want to place land in living, ascertainable person

(a) If grantor creates remainder or executory interest in his own heirs, the grantor retains a future
interest in himself, rather than future interest in those heirs

(i) Heirs of grantor = not ascertainable

 Doctrine does not apply if it’s the children; only the heirs

(ii) Example: O conveys to C for life, then to X for life, then to O’s heirs”

4) Doctrine of Destructibility of Contingent Remainders – time limit on uncertain future interest

(a) Rule: Any contingent remainder that has not vested at termination of preceding freehold estate
is destroyed

(i) Elements: 1) conting. remainder; 2) does not vest before preceding estate ends

Concurrent Ownership & Marital Property

UU) Concurrent Ownership – multiple people with interest in same land at same time

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1) Each co-owner (cotenant) has equal right to use/possess entire property, not just particular part

2) Three Types: (1) Tenancy in common; (2) Joint Tenancy; (3) Tenancy by the entirety

3) Policy: Marketability; transfer your shares absent language to contrary

VV) Tenancy in Common – O conveys “to A and B”

1) Full rights to use all land. Freely alienable, devisable, and descendible.

2) James v. Taylor

(a) Facts: Mom executes deed to three children “jointly and severally, and unto their heirs, assigns
and successors forever.” Two children die. Then mom dies. One child left says “joint tenancy,
therefore I am sole owner.” Estates of other children say “no, tenancy in common.”

(b) Holding: Insufficient evidence presented to overcome presumption of tenancy in common.

Ambiguous language of “joint and several” was not enough to overcome presumption.

(c) Rule: Strong presumption that grantor intends tenancy in common, absent express language to
contrary.

(d) Rationale: Four Corners of Deed = no express language

(i) Court ignored donor’s intent.

(ii) Magic Words: Did not say “as joint tenants with rights of survivorship…”

(e) Straw Person – A can create joint tenancy by conveying his own land to B.

(i) Used to need middleman. E.g., A to C, who gives to A and B as joint tenants.

WW) Joint Tenancy – O conveys “to A and B as joint tenants with right of survivorship”
1) Survivorship: Survivor gets interest of person that dies. A gets B’s interest if B dies.

2) Aspects of Joint Tenancy

(a) Undivided right to use/possess.

(b) Neither devisable nor descendible

(c) Alienable – can transfer interest; but it’s the same interest as original joint tenant

3) Elements: Unity of:

(a) Time – acquire interest at the same time

(b) Title – same instrument

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(c) Interest – same share of estate (no unity if A has 2/3 interest)

(d) Possession – Equal right to possess, use, and enjoy

4) “to A and B for life, then to the survivor” – not a joint tenancy; tenants in common

5) Severance – done through conveying to third-party. Then they become tenants in common.

(a) Tenhet v. Boswell

(i) Facts: Tenhet and Johnson owned land as joint tenants. Johnson leased property to Boswell
for 10yrs w/o Tenhet’s knowledge/consent. Johnson died 3 months after lease was executed.
Tenhet sought right of survivorship.

 Issue: Does a lease sever a joint tenancy in same way as conveyance?

(ii) Holding: Boswell and Tenhet still hold a joint tenancy; lease did not sever the tenancy.
Therefore, when joint tenant (Johnson) died, Tenhet had sole ownership of property &
does not have to honor the lease.

(iii) Rule: Lease made to third-party does NOT sever joint tenancy;

 A lease does not destroy unity of interests; title; or possession.

(iv)Rationale:

 No indication that Johnson wanted to terminate the joint tenancy through a lease. No
clear intent to terminate joint tenancy.

 Lease conveys only partial interest in property. Lease died when Johnson died. Johnson
cannot lease from the grave.

(v) Push to require recording when you unilaterally destroy joint tenancy

XX) Tenancy by the entirety – O conveys “to A and B as husband/wife as tenants by entirety

1) Only married couples; Right of survivorship.

2) Only ended by death, divorce, or agreement

(a) Cannot be severed unilaterally. Can’t say “I transfer interest to someone else”

3) Two Types

(a) Separate Property System (most jurisdictions)

(i) During the Marriage: Property is separately owned by spouse who acquires it. Creditors can
only go after one spouse’s share.

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(ii) Divorce: Equitable distribution; Factors considered – income, age, health, needs,
contributions during marriage, standard of living

(iii) Death: Surviving spouse receives “forced share” and can 1) take by will of decedent; or
2) receive defined portion of estate (1/3-1/2 share).

(b) Community Property System (9 states)

(i) During the Marriage: both spouses equally own property, earnings and assets; neither can
transfer share to third-party. Neither has right of survivorship

(ii) Divorce: Property is divided; either equally or equitable distribution

(iii) Death: Descendent may devise half of property/do as they wish. The other half belongs to
surviving spouse. Do not provide forced share to survivor

4) Creditors = no liens on property.

(a) Sawada v. Endo

(i) Facts: Mr. Endo hit Mrs. Sawada in car accident, but didn’t have liability insurance. Mr. &
Mrs. Endo conveyed property to sons for no consideration—trying to protect property from
lawsuit. Mrs. Sawada sued to set aside conveyance

(ii) Holding: Even if Endos didn’t convey, Sawada wouldn’t get money from lien

(iii) Rule: A tenancy by the entirety is not subject to claims of creditors.

(iv)Court didn’t find fraud; even if Endos intended to convey to get out of lien

(v) Rationale: promote & protect family unity/marriage; allow convenient administration of
decedent’s estate w/o worrying about decedent’s debts.

(vi)Marriage is different: Creditors can collect from other cotenants

5) Professional Degree – NOT marital property; it’s an investment

(a) Guy v. Guy

(i) Facts: Husband (supporting spouse) took care of wife while she obtained nursing degree.
They got divorced & split assets.

(ii) Holding: Supporting spouse can seek reimbursement. Professional degree not property; no
exchange or objective transferrable value. Personal to holder.

(iii) Rationale: (1) it’s an intellectual achievement; (2) cannot be assigned, sold or
transferred; (3) valuation problem; (4) marriage not “free ticket” education

 Ct. looks to inequity of situation where one spouse supports another & not the supported
spouse wants to count their degree as property…
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6) Can apply to Unmarried Palimony (alimony) Contract

(a) In Re Estate of Roccamonte

(i) Facts: P is mistress of rich man (Roccamonte) and lived with him for 25yrs. Roccamonte is
also married. P was enticed to be mistress. Roccamonte says he’ll take care of P “for your
life” and for her not to worry. Roccamonte dies.

(ii) Holding: P is entitled to monetary benefit. Roccamonte made K to provide for P for rest of
her life. This was more than just sex.

(iii) Rule: if one partner in unmarried, adult, marital-like relationship is induced by promise
of support from another, that promise will be enforced.

 Unmarried K can be made orally and through general promise (as here)

(iv)Rationale: Fact that Roccamonte was already married didn’t matter.

 Ct. says this is not inducement by way of sex (which would be illegal K)

7) Applies to Same-Sex Couples

(a) Varnum v. Brien – same-sex couples can enter into express K re: shared property

(i) Benefits of Property law: private and social advantages; increased dignity. creditor shield;
health & SSI benefits; taxes; immigration; burial;

YY) Partition – What happens when you cannot amicably split land?

1) Court-generated solution to ending co-tenancy & distributing assets

(a) Applies to tenants in common OR joint tenants; both can sue

2) Agreements not to partition in advance – usually invalid restraint on alienation

3) Partition in Kind

(a) Division of land in co-tenancy into cotenants’ respective fractional shares

(i) Strong presumption of partition in kind

4) Partition by sale

(a) Land cannot be fairly divided. Sell entire estate & distribute proceeds.

5) Ark Land Co. v. Harper

(a) Facts: Ark Land Co able to get 67.5% interest in 75 acres of land owned by Caudill family
(through various family members). Ark Land wanted the last portion to extract coal/mine, but
heirs unwilling to give up interest.

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(i) Caudill family – wanted partition-in-kind b/c it was family land

(ii) Ark Land – wanted partition by sale b/c unfeasibility to have house surrounded by coal mine.

(b) Holding: Economic value is not only factor analyzed when deciding for/against partition by sale.

(c) Rule:

(i) 1) preference for partition-in-kind. Presumption that money is not best option if they can
give out the actual land.

(ii) 2) Economic value not only test. Consider:

 Emotional attachment

 History of use/ownership

 Overall use

(iii) 3) To overcome presumption, Ark Land must show

 (1) Property cannot be conveniently partitioned-in-kind; (2) interest of one or more

parties promoted by sale; and (3) interest of other parties will not be prejudiced by sale.

(d) Now…most partitions done by sale, b/c leads to under-utilized, fragmented land.

ZZ) Co-Tenants Rights & Duties

1) Esteves v. Esteves

(a) Facts: parents buy home with son as tenants in common; each had ½ interest. Lived together
for short period, when son made $2k in improvements. Son moved out for 18yrs; parties sold
home for profit of $80k—how to divide proceeds?

(b) Holding: Parents should compensate son for sole occupancy of home. Evenly split $61k in
expenses parents paid; offset by value of parent’s sole use for 18yrs.

(c) Rule: Son does not owe rent (for time not there), but does owe taxes.

(i) Cotenants do not owe each other rent, unless…

 Exception = Ouster: having cotenant prevent you from using/possessing land

(ii) Operating/Maintenance Expenses: Fairness/equity require tenant in sole possession to get

corresponding credit for amt. spent in operating costs. Thus, son must pay pro-rata share.

(d) Unnecessary Repairs: if cotenant (parents) make improvements (add pool) that add value to
house, they get all profit of investment--amt. of increase in value

(i) Son only gets use of pool.

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(e) Necessary Repairs: Cotenants (even the son) must pay fair share.

Leasing Real Property

AAA) Landlord-Tenant Relationship – mix of contract & property law
1) Property rights

(a) Tenant (lessee) = exclusive right of possession;

(b) Landlord (lessor) = future interest/reversion

2) Immutable Rules: Cannot contract around; supersedes contrary provision/negotiations

3) Default Rules: fill in gaps not in lease

BBB) Selecting the Tenant

1) Civil Rights Act – mostly about race. All citizens shall have same right to purchase, lease, sell, hold,
and convey real property as is enjoyed by whites.

2) Fair Housing Act - No discrimination based on race; gender; nat’l origin; disability/handicap =
need not have impairment; only be perceived as having.

(a) Neithamer v. Brenneman Property Services

(i) Facts: P is gay/HIV positive, told D that banks statements years ago were bad b/c of medical
bills of deceased lover. P now has good credit. P denied lease

(ii) Holding: Plaintiff’s mention of HIV+ partner provided enough reason to question
discrimination. P’s protected class = disability?

(iii) Rule: Right to exclude not absolute; McDonnell Douglas – burden-shifting

 P must show: (1) member of protected class; (2) D knew; (3) applied & was qualified to
rent; (4) D rejected; and (5) property available thereafter

 D must show legit, non-discriminatory reason

 P must show discrimination was b/c of protected class

(iv)Rationale: Circumstantial proof r

(b) Exemptions to Fair Housing Act (don’t allow for advertisements)

(i) Rooms/units in dwellings occupied by less than 4 families and broker

(ii) Any single-family house sold/rented, if owner owns less than 3 houses

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CCC) Selecting the Estate

1) Types of Tenancy

(a) Term of years of tenancy – fixed duration agreed on in advance; lasts til lease expires

(b) Periodic Tenancy – automatically renewed for successive period; unless landlord gives
notice/terminates.

(i) May last forever; notice required in advance

(c) Tenancy at will – no fixed end point; continues so long as “landlord/tenant desire”

(i) Kajo Church Square v. Walker

 Facts: Walker gave land to church and wanted to continue to live in house on property.
Agreement was to give Walker a “lease for life”; Church terminates the lease (and gives
notice) & Walker gets evicted.

 Holding: Walker cannot just create a “new” kind of non-freehold (lease) estate. Conflict
b/t contract law (negotiate whatever you want) and property law (subject to rules re:
ownership).

 Rule: No such thing as tenancy for life; it’s just a tenancy at will

(d) Tenancy at sufferance (overstayed your lease) – Holdover tenant retains possession & pays;
Landlord may (1) evict tenant as trespasser; or (2) renew lease

2) Why it matters: (1) procedure for ending estate; (2) when estate ends

(a) Dorm Contract: License (contract) is created, not a lease.

3) Eviction – Must have Good Cause

(a) Failure to pay rent; criminal activity; nuisance/harassment

DDD) Negotiating the Lease

1) Statute of Frauds – must have writing for term of 1yr

(a) Key lease terms = 1) parties; 2) property; 3) duration; 4) rent; 5) signed by lessee

2) Standard Forms

(a) Pre-printed form w/ terms; no chance to really negotiate

3) Rent Control

(a) Ordinances that control max rent a landlord can charge

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EEE) Delivering Possession – holdover tenant still in apt. when you arrive to move in…
1) Keydata Corp v. United States

(a) Facts: Nasa (U.S.) supposed to move in to Keydata’s space, but Keydata did not vacate. Nasa
cancelled lease.

(b) Holding: There is a breach of landlord’s obligation if third-party is improperly in possession of

leased property on date that the tenant is entitled to possession; landlord has “reasonable amount
of time” to remove third-party.

(c) Rules – two rules; Court adopts English Rule

(i) American Rule: At minimum, landlord must deliver legal possession (not withhold
possession themselves).

(ii) English Rule: Some states go further = landlord must deliver actual possession when lease
begins

(d) Rationale: Create uniform rule for Fed. Gov. leases.

(i) Tenant is buy the actual space, not just right to sue

(ii) Landlord can contract around & has remedy against holdover tenant

(iii) Landlord in best position to know status of property & who’s entitled to what

(iv)Landlord = only person who can evict

FFF) Condition of Premises

1) Constructive Eviction – condition of premises is so bad it “substantially interfere’s w/ tenant’s
possession” that it amounts to constructive eviction

(a) In Re Clark

(i) Facts: 5 tenants filed action against landlord for crumbling walls, holes in kitches, failed
toilets, mice, not hot water;

(ii) Holding: Housing code came about regulating living standards, zoning etc.

(b) Fidelity Mut. Life Ins. V. Kaminsky

(i) Facts: Dr. Kaminsky performed abortions. People protested outside apt; he stopped paying
rent. He claimed constructive eviction from landlord’s failure to do anything & violation of
covenant of “quiet enjoyment”.

(ii) Holding: This amounted to constructive eviction.

(iii) Rule:
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 Constructive eviction occurs through landlord conduct that “materially interferes with
tenant’s beneficial use of premises”; Must show:

 Intent of landlord to no longer enjoy premises-inferred from circumstances

 Material act or omission of landlord

 Act/omission – caused permanently deprived use

 Tenant abandoned premises within reasonable time

 Third-Party Rule: A landlord is not responsible for conduct of third-parties outside its
control.

 However, landlord must also not allow protesters on premises.

(iv)Rationale: Landlord had no security personnel on Sat. to exclude protesters from building.
Excluding protesters was an omission w/in their control

(c) JMB Properties v. Paolucci

(i) Facts: Jewelry store signed lease for property next to excessively noisy stereo store with
understanding that problem would later be fixed. Jewelry store was there for six years and
complained 500 times.

(ii) Holding: Jewelry store waited too long; waived right to bring claim

(iii) Rule: A tenant must abandon premises within reasonable time to claim constructive
eviction. Here, 6yrs = too long; waived!

(iv)Rationale: Did not decide if excessive noise was constructive eviction.

(d) Wrongful Conduct:

(i) (1) obligation of lease; (2) fails to control/maintain common area; (3) breaches statutory
duty; (4) fails to repair; (5) allows nuisance behavior

(e) Too Soon v. Too Late: You leave too soon = might not be “substantial interference”; you leave
too late = waiver.

2) Implied Warranty of Habitability – bare living requirements must be met so premises are “fit for
human occupation.” (40 states adopted)

(a) Wade v. Jobe

(i) Facts: Tenant rented house and found housing code violations, include sewage problems that
were deemed “unsafe for human occupancy.” Tenant tried to fix to no avail, then moved out.
No agreement re: who makes repairs. Landlord sued for rent owed after tenant moved out;
tenant counterclaimed.

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(ii) Holding: An implied warranty of habitability existed. Remanded to determine if it was

violated here & whether tenant can offset unpaid rent due to breach.

(iii) Rule: Implied warranty of habitability requires premises be “fit for human occupation” &
requires bare minimum living requirements.

 Fact-Specific. No heat, water, health/safety code violations.

 Not include deadbolt on door/gated windows.

(iv)Rationale:

 Burden no longer on tenant to repair – (1) lacks skills to inspect/repair; (2) lacks
bargaining ability to shift burden

 Consistent with widespread housing/building codes; legislative desire to provide decent

housing.

(v) Dissent: Freedom to contract. Judges don’t build houses, lower rent, or create hospitable
living. Let the economy/market decide. Landlord may not have money or may just pass costs
of repairs on to tenant resulting in high rent.

GGG) Transfer of Interest From Tenant to Third-Party

1) Sublease vs. Assignment of Interest

(a) Sublease: Tenant transfers part of interest; rent by someone who is not true owner.

(i) Sublessees have no legally-recognized connection to the landlord (neither through privity of
contract nor through privity of estate)

(ii) Generally not liable to the landlord/owner for rent, etc…

(b) Assignment: If tenant transfers all of his interest.

(i) Assignees retain privity of estate with landlord/owner (and might therefore retain certain
obligations to the owner)

2) Objection By Landlord: only if he can give commercially viable reason

HHH) Ending the Tenancy

1) Abandonment – Landlord has duty to mitigate damages by attempting to re-lease apartment vacated
by tenant. Minority of states do not require.

(a) Sommer v. Kridel

(i) Facts: D sign 2yr lease with P, paid security deposit and 1mon rent. D broke off before
moving in and P did not try to re-lease apt until months later.

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(ii) Holding: A landlord has an obligation to make “reasonable efforts” to mitigate damages
when a tenant breaks a lease.

 Consider if landlord offered, showed, or advertised vacant apt.

(iii) Rationale: Basic fairness. If landlord has other vacant places beside the one tenant
abandoned, he has duty to mitigate.

2) Eviction

(a) Hillview Associates v. Bloomquist

(i) Facts: Tenants at mobile home park formed tenant’s association to discuss problem re:
condition of land leased by Hillview. Hillview got word of association and gave notice of
termination w/o grounds. Tenants didn’t leave

(ii) Holding: D gave evidence of retaliation by landlord; landlord had to rebut by providing
legitimate grounds.

(iii) Rule: A landlord cannot engage in retaliatory eviction

 Factors to look to: (1) exercise of business judgment; 2) good faith to dispose of all
tenants or make different use of property; 3) financial ability to repair; 4) knowledge of
tenant’s activities that are protected by statute; 5) did landlord wait after learning of
tenant conduct; 6) discrimination

(b) AMICO Properties v. Dziewisz

(i) Facts: P and D have 1yr lease that expired; D failed to vacate

(ii) Holding: D became a tenant at sufferance, but could not be evicted simply because the lease
expired. Landlord needed good cause to evict.

(iii) Rule: Expiration of lease, by itself, is not “other good cause” to evict

 E.g., other good cause: business purpose

(iv)Rationale: If landlord could evict for lease expiration, they could just make monthly leases.
Would cause undue hardship on tenants.

(c) How does a landlord evict? (1) Self-help (entering premises and causing tenant to leave) (2) sue
the tenant

(i) Berg v. Wiley

 Facts: D leased land to P for restaurant for 5yrs. Relationship broke down & P violated
health codes at restaurant. When P was gone, D changed locks, shows up with police
officer etc.

 Holding: P had not abandoned or surrendered leasehold before being locked out by P.
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 “Only lawful means to dispossess tenant who has not abandoned/surrendered…is to

resort to judicial process”

 Rule: Self-help is no longer an option and will never be peaceable. Must always evict
tenant through the courts.

 Self Help: used to require (1) entitle to legal possession; and (2) peaceable means of
reentry. Ct. says—self-help is never peaceful.

 Rationale: Self-help is never peaceful, even if tenant is not there. Potential for violence
always exists in evictions.

Selling Real Property

III) Three Major Steps: (1) Purchase Contract; (2) Closing; (3) Title Protection

JJJ) Purchase Contract: Parties negotiate & sign written K to consummate transaction

1) Standard, preprinted form supplied by real estate broker. Sets for price, method of payment; time for
performance.

2) Statute of Frauds - (1) Writing; (2) Signed by enforcee; (3) essential terms

(a) Hickey v. Green – to enforce sales contract for real property must be in writing

(i) Facts: Oral K between Hickey (buyer) and Green (seller). Relying on oral K, Hickeys sold
house. Green no longer intended to sell/found another buyer.

(ii) Holding: Unsigned check is writing but SoF is violated because there are no essential terms
or signature of seller. However, equitable estoppel applies and the K can be enforced.

 Ct. doesn’t life Green’s actions; Hickey’s get specific performance.

(iii) Rule: Exception to the Statute of Frauds

 Equitable Estoppel. Performance of sale of land may be required where a party

reasonably relies on K and injustice could only be avoided through enforcement.

 Requires: 1) party act to detriment in reasonable reliance on oral promise; and 2)

serious injury would result w/o enforcement

 Part-Performance. Oral K is enforceable if: 1) buyer takes possession; 2) buyer pays

part of purchase price; and 3) buyer makes improvements

(iv)Rationale: Green admitted they had a contract.

3) Marketable Title – about marketability. Don’t need perfect title. Seller must own estate he is selling
without encumbrances.

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(a) Rule: Title is unmarketable if 1) seller’s property interest is less than what she purports; 2)
encumbrances against title; 3) doubt as to (1) or (2).

(i) Lohmeyer v. Bower

 Facts: A house violated public & private restrictions as it was originally constructed.
Lohmeyer finds out and says Bowers violated contract that he would convey “good and
marketable title.”

 Holding: Taking a house that violated private restrictions makes title unmarketable
because it exposes buyer to litigation from private party.

 Rule: Title is unmarketable if there are “encumbrances” or burdens on it

 Private encumbrances – make title unmarketable.

 Public restrictions (statutes, ordinances, etc.), are not “encumbrances” that make title
unmarketable; however, private restriction = unmarketable title

 Defect creating diminution in value – still gives marketable title

 Rationale: Defect must be substantial in character; suffer injury

(b) Buyer’s Knowledge

(i) If buyer knew of encumbrance, the encumbrance is presumed to be in contemplation of

agreement/purchase price.

(c) Not about condition of property, but title.

4) Equitable Conversion – Who bears the risk of loss/damage to property?

(a) Three Rules:

(i) Buyer bears risk as equitable owner (majority rule)

(ii) Seller bears risk as legal owner

(iii) Party entitle to possession bears risk; possession = title transferred

(b) Brush Grocery Kart v. Sure Fine Market

(i) Facts: Tenant/buyer (Brush) already vacated property, lease was over, was tenant at
sufferance. Hail storm damages property. Landlord/seller (Sure Fine) said buyer had no right
to possession.

(ii) Holding: Buyer (Brush) was not in possession or equitable owner. Seller (Sure Fine) had
legal right to possession and bears risk of loss.

(iii) Rule: The party entitle to possession (here, the seller) bears risk of loss

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(iv)Rationale: duty to maintain physical condition of property is connected to actual possession

of property.

(c) Death. Can still be enforce by/against heirs of property. K is still valid.

5) Duty to Disclose – breaking the contract;

(a) Rule: Seller is obligated to disclose (1) known defects; (2) that materially affect (includes mental
harm) value of property; and (3) are not known or readily discoverable by buyer

(i) Common law (Caveat Emptor) Rule: Seller only liable if 1) misrepresents condition; 2)
actively conceals; or 3) owes fiduciary duty

 Look for omissions. Under this rule, can still break duty to disclose through
silence/omission; under common law “caveat emptor” rule, you could just stay silent.

(b) Stambovsky v. Ackley

(i) Facts: Buyer bought house from seller and discovered ghosts/haunted house.

(ii) Holding:

(iii) Rule: Followed common law rule of “caveat emptor” (buyer beware) with no duty to
disclose

 Exception: Nondisclosure constitutes basis for recission of K, where:

 (1) condition is created by seller; (2) impairs value of K; and (3) within seller’s
knowledge/unlikely to be discovered

(iv)Rationale: impossible for buyer to contemplate ghosts; seller did something to exacerbated
condition by writing about haunting.

(c) Statutory Reform

(i) Disclose: drain issues; building code/zoning violations; structural defects

(ii) Some States: Seller has no duty to disclose.

(d) Buyer – No Duty to Disclose: Even if buyer knows there are oil reserves under house, but seller
is unaware.

(e) Implied Warranty of Quality – Exception to Caveat Emptor

(i) Developer of newly-constructed property = property is fit for intended use.

 Developer is liable even if no knowledge of defects.

(f) Off-Site Disclosure: Duty to disclose off-site conditions that materially affect value of property

(i) Strawn v. Canuso

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 Facts: Developer buys land to build housing development near toxic site. Developer was
aware of toxic land fill.

 Holding: Professional sellers of residential housing have duty to disclose off-site

condition.

 Rule: narrow rule = Seller had a duty to disclose where it is professional seller (e.g., real
estate agent) entitled to more info. Not apply to seller of commercial property or reseller
of residential real estate.

(ii) Examples: Do not have to disclose shitty school district, sex offenders. You may know of
them, but cannot control them.

KKK) Closing: Contract fully performed at closing; buyer pays purchase price; seller gives title

LLL) Title Protection/Title Assurance: buyer protects title through covenants, search of public land
records. Sale of property = Sale of 1) title & 2) bundle of rights; concerned about encumbrances,
third-party rights; easements, leases. What happens when seller sells property without proper title?

1) Title Covenants – Grantor expressly promises he has good title to convey in deed

(a) Types of Deeds

(i) General Warranty Deed: warrants title against all defects at closing, no matter if they arose
before or after he obtained title

(ii) Special Warranty Deed: warrants title against all defects that arose after he obtained title
(during his ownership).

(iii) Quitclaim Deed: no title warranties; grantee only receives what grantor has

(b) Title Covenants: 6 types of promises…

(i) Covenant of seisin: grantor owns the estate he purports to convey; covenant is breached if
grantor purports to convey fee simple but only owns a life estate

(ii) Covenant of right to convey: grantor has the right to convey title; breached if grantor is
trustee who lacks authority to transfer title to the trust property.

(iii) Covenant Against Encumbrances: no encumbrances on the title, other than those
expressly listed in the deed; breached if prior mortgage on property.

 First three called “present covenants”; breached when deed is delivered.

 Difference between title covenants and implied warranty of title = implied warranty of
title extends before closing; covenants extend after closing.

(iv)Covenant of Warranty: grantor will defend grantee against any claim of superior title

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(v) Covenant of Quiet Enjoyment: grantee’s possession will not be disturbed by superior title;
breached if grantee is evicted because defect in title.

(vi)Covenant of further assurances: grantor will take reasonably necessary future steps to cure
title defects that existed at closing.

 Last three called future covenants; breached after closing, when grantee is
actually/constructively evicted by third-party holding superior title.

(c) Brown v. Lober

(i) Facts: P were given general warranty deed by Bosts and think they own full property rights;
20yrs later, tried to sell all mineral rights to land, but learned they only had 1/3 of rights from
deed. Two claims: breach of covenant of quiet enjoyment and covenant of seisin.

(ii) Holding:

 (1) no breach of covenant of quiet enjoyment because no eviction or interference with

property rights occurred; there may be someone with superior title (coal mining
company), but P need to be evicted.

 No interference when minerals are below surface and you haven’t even started
digging for them; and coal company hasn’t come in yet.

 (2) Breach of covenant of siesin; however, statute of limitations has run. Statute of
limitations for a covenant of siesin starts running the moment title is conveyed. Because
P waited 20 years after conveyance, SoL ran.

(iii) Rationale: (1) quiet enjoyment – even if there is person with superior title, that’s not
enough for breach; you need interference with right of possession; (2) limits on present
covenants – SoL starts running when title is transferred.

 Possibility of adverse possession if Plaintiff actually dug up the minerals.

2) Title Opinion based on search of public records – attorney or professional renders opinion based on
search

(a) Recording System – give notice of land rights to world; protection to subsequent bona fide
purchaser

(i) Two Systems:

 Grantor-Grantee Index – organized by grantor/grantee names. Gives type of deed; time

of recording; description of property. Go through chain of title by each grantor you know,
until reach you conveyance by sovereign.

 Tract Index – organized by parcel of land (through unique identifier)

(b) Luthi v. Evans

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(i) Facts: Owens gives oil/gas lease to Int’l Tours through mother hubbard (catchall
provision). Assignment was recorded. 4yrs later, Owens leases to Burris, whose inspection
nor abstract of title showed assignment. Controversy over one of the leases. Tours says I got
lease first & “motherhub clause” gave every oil/gas lease to me.” Burris says “I’m a
subsequent bona fide purchaser”

(ii) Holding: Finding for Burris b/c the recording of a “mother hubbard” clause does not
constitute constructive notice to a subsequent bona fide purchaser.

(iii) Rule: Where it is not “reasonable to avail a subsequent purchaser of a conveyance,” a

recording will not constitute constructive notice

 An innocent, subsequent purchaser has superior rights to initial purchaser

(iv)Rationale: Only way Burris could find out a/b assignment of mother hubbard clause was
search for every property that grantor conveyed = not practical

 Takeaway: Description of land was too vague for Burris to be on notice; record needs to
specifically describe the land (e.g. not a catchall clause)

 See also: clerical errors – will not prevent constructive notice

(c) The Recording Acts

(i) Four Types of Jurisdictions

 Common Law – First in time. Person whose interest was created first.

 Exception: protection of subsequent bona fide purchaser

 Race (2 states) – purchaser who records first has priority over a previously-created
interest; even if purchaser knows of prior interest or has bad faith.

 Does not matter if you convey interest before recording.

 Notice – subsequent bona fide purchaser prevails if (1) at time of conveyance; (2) he
takes without notice of prior interest

 Do not have to record; but recording provides notice.

 Actual Notice: actual knowledge

 Constructive Notice: should have known; e.g., deed was recorded

 Inquiry Notice: Must investigate/ask questions when circumstances would lead

reasonably prudent person to investigate possible existence of outstanding rights
hostile to grantor’s title. If you don’t investigate, you’re charged with
knowledge/notice.

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 Race-Notice – subsequent bona fide purchaser prevails if (1) takes without notice; AND
(2) records first.

 Zimmer Rule: Requires all deeds in chain of title be recorded.

(ii) The Subsequent Bona Fide Purchaser

 Policy – protect innocent buyers; give them confidence in good title

(iii) Messersmith v. Smith

 Facts: (1) Caroline gives interest to Frederick. (2) Caroline executes lease to Smith and
gives ½ interest in mineral rights to Smith (valid acknowledgement. (3) Caroline delivers
corrected mineral deed to Smith (invalid acknowledgment); (4) Smith conveys interest to
Seale (except Smith had no real interest to convey because of invalid acknowledgement);
(5) Smith records lease/corrected deed; (6) Seal records; (7) Frederick records. In race-
notice jurisdiction; issue = who recorded first?

 Holding: Frederick wins because (1) deed that Seale relied on was defective due to
invalid acknowledgement by Smith; (2) Frederick was first valid recording

 Invalid acknowledgement affects all subsequent acknowledgments & recordings.

Therefore Smith & Seale tried to record a defective deed.

 Seale was not a subsequent bona fide purchaser.

 Rule: Recording of a deed does not give constructive notice if it fails to meet statutory
requirements of recording laws—here: needed to appear in person before a notary to give
proper acknowledgment. Caroline didn’t appear in person when conveying the corrected
mineral deed.

(iv)Shelter Rule: If you purchase from a bona fide purchaser, you become a bona fide
purchaser, even if you’re on notice.

 E.g. S to B, who does not record. S to C, who does not record. C to D, who knows of S-B
deed. C records. B records. D records.

 In notice jurisdiction – D wins b/c C was a bona fide purchaser (not on notice) and
transferred interest/SBFP status to D.

 Race-notice – D still wins b/c C recorded first and D gets protection.

(v) Gifts: Prevent you from being subsequent bona fide purchase FOR VALUE

(vi)CHAIN OF TITLE PROBLEMS – The Wild Deed

 Someone conveys interest before they have recorded that interest.

 Board of Ed. Of Minneapolis v. Hughes

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 Facts: Hoerger pseudo-conveys to Hughes (blank name on who it’s being conveyed
to—so not conveyance yet). Hoerger conveys to D&W. D&W did not record, but
conveys to Board of Ed, who records. Hughes then fills in name (this is when
conveyance takes effect) and records. Finally, D&W record. Race-Notice Statute =
1) record first; and 2) no notice.

 “Proper Recording” = if deed is not property recorded, it’s not considered “recorded”
either 1) for notice purposes; or 2) for being “first-recorded”

 Holding: Hughes wins. Hughes became subsequent bona fide purchaser when he
finally filled in his name—before that, the conveyance was incomplete. When Board
of Ed. recorded, it did not put Hughes on notice because, at that point, it was a
wild deed.

 Rule: A first grantee must record deed before a subsequent grantee can record.
Where a deed is recorded outside the chain of title, it does not give notice.

 Rationale: (1) If line was blank on deed, then it was never Hughes; that formal
element needed to be completed for deed/conveyance to be legally operative. (2)
Hughes had no knowledge of conveyance to D&W or subsequent conveyance to
Board of Ed; he would not have known of Board of Ed conveyance or their recording;
therefore Hughes was subsequent bona fide purchaser

 Raub v. General Income Sponsors of Iowa

 Facts: P, Ms. Raub (old lady) wanted to retire. D fraudulently induced P to invest
money in them. She did and gave D warranty deed to her home in exchange for stock.
D leased P home. P lived on property and paid rent there. Two Banks with mortgages
on property say they’re subsequent bona fide purchasers that can enforce liens against
P.

 Holding: The banks did not have notice (actual, constructive, or inquiry) that their
Ms. Raub’s title had been obtained by fraud. Bank was a subsequent bona fide
purchase w/o notice. Ct. holds that notice of fraudulent conveyance cannot be
imputed to defendant-banks.

 Rule: Inquiry Notice. Generally, possession of land by one other than grantor should
put the banks on inquiry notice. BUT inquiry notice would not have mattered under
these facts b/c possession by grantor (Ms. Raub) of a recorded deed (to Gen. Income),
at least for a period of time, is not inconsistent with rights Gen. Income.

 Rationale: There was no way the Banks would have known of conveyance: (1) P still
lived there—without knowledge of fraud; and (2) P would have said land belonged to
Gen. Income. (3) record search would reveal clean title to Gen. Income. “Ct. cannot
rescue P from her own folly just b/c the banks are in better position to absorb the
loss.”

 Inquiry Notice - if record search refers to doc outside chain of title

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Private Land Use Planning & CC&R’s (Covenants,

Conditions, and Restrictions)
MMM) Definitions for Easements

1) Servient Tenement – land burdened by easement; land on which person has easement

(a) Servient Owner – owner of servient tenement

2) Dominant Tenement – land benefited by easement; land owner by person w/ easement on servient
tenement.

(a) Dominant Owner – Easement Holder

3) Appurtenant Easement (most easements) – benefits dominant owner in use of specific parcel of land
(e.g. helps me use my land to walk across yours).

4) Easement in Gross – not connected to dominant tenement; personal to dominant owner.

5) Affirmative Easement – Allows dominant owner to perform act on servient tenement

6) Negative Easement – Allows dominant owner to prevent servient owner from performing act on
servient land.

NNN) Easements: Non-possessory right to pass-through land.

1) Express Easement (requires agreement of owner whose land is burdened)

(a) Statute of Frauds – Express easement may only be created in a writing that satisfies the Statute of
Frauds:

(i) Identify the parties

(ii) Describe the servient land and dominant land

(iii) Describe the exact location of the easement on the servient land

(iv)State the purposes for which easement may be used.

(b) Express Easement by grant – arises when the servient owner expressly grants easement to
dominant owner.

(c) Express Easement by Reservation – arises when dominant owner grants the servient land to the
servient owner, but reserves easement over that property.

(d) Millbrook Hunt v. Smith

(i) Facts: Smith buys land that already had express agreement, recorded before purchase (notice
of easement), that Millbrook (fox hunting org) had right to use land for fox hunting for 75yrs.
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Smith tries to eject, saying it was a “license” (informal permission for particular use that can
be revoked..

(ii) Holding: This was an easement in gross (that runs with the entity—here, Hunt—and not the
land) that could not be revoked; not a “license” to use land, which would be revocable.

 Smith did not have a right to exclude/eject Hunt, only to make modifications to land.

(iii) Rule: Just because it’s called an easement, does not necessarily make it so.

 Easements are for a defined period—here, 75yrs.

(e) Conveyances of Easements

(i) Usually easement is attached to land (appurtenant easement)

 Sometimes it’s attached to holder of easement, if it’s personal to them—e.g., fox-hunting

and Hunt (easement in gross)

(ii) Exception: Subsequent Bona-Fide Purchaser

 If grantee is bona fide purchaser, easement does not remain attached

 This is why notice mattered in Hunt because Smith knew of agreement

2) Implied Easement by prior existing use

(a) Elements of an implied easement by prior-existing use.

(i) Severance of common ownership

(ii) (1) Apparent use; (2) Existing Use; and (3) continuous use

(iii) Reasonable necessity for that use (not necessarily essential, just beneficial)

(b) Van Sandt v. Royster

(i) Facts: P discovered basement flooded with sewage and brought action to enjoin D from
using/maintaining underground sewer on P’s land. Pipe had been there for 20yrs before P had
land. Prior owners had easement by reservation. P had knowledge of sewer line when
purchased, but easement was never reserved in initial conveyance.

(ii) Holding: This is an implied easement by prior-existing use. “Appliances connected with and
leading to property are obvious adaptations of the property that led to a sewer.

(iii) Rule: We assume you have knowledge that other peoples’ sewage pipes may run
underground through your property.

(iv)Rationale: Here there was actual knowledge of sewer pipe; Sewage pipes/underground
utilities = apparent if have knowledge of plumbing.

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 Want settled expectations of land use, especially when sewer benefits all 3 plots of land
around it.

3) Easement by necessity

(a) Elements

(i) Severance of title to land held in common ownership;

(ii) Division of land resulted in landlocked parcel; AND

(iii) Strict Necessity for easement at time of severance

 Not, necessarily, that there must be no other way to access

(b) Duration: Only as long as necessity continues!

(c) Location: Chosen by servient owner (owner of land on which easement is placed)

(d) Berge v. State of Vermont

(i) Facts: Land was subdivided to P. P can only access land through State Rt. 114 or by water.
Rt. 114 was gated off and P wanted gate removed. Easement wasn’t reserved when land was
subdivided.

(ii) Holding: If only access to property is by water, there is an easement by necessity. Intent
of original conveyance - easement/continued access to land.

(iii) Rule: “Strict Necessity” = Reasonably consistent, “practical” means of reaching

property

 Look to (1) Ease; (2) Frequency; and (3) Scope

 Easement by necessity will not arise if against intent of original conveyanc

(iv)Rationale: (1) implied intent of parties to create easement at severance; and (2) productive
use of land.

 Weather/water conditions during winter wouldn’t allow access; this is P’s primary
residence. P would not be able to enjoy land.

(v) Difference b/t “extreme inconvenience” and “reasonably practical access”

(vi)Not Prior-Existing Use – Didn’t have easement at time of severance.

4) Prescriptive Easement (easement by adverse possession)

(a) Elements

(i) Adverse/Hostile use of another’s land in manner for which it’s used;

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 Some “easement-like limited use”

(ii) Continuous & uninterrupted for 10yrs;

 Allows tacking

(iii) Open & notorious (or actually known/visible)that reasonable owner of land would
notice;

(iv)Reasonably Identifiable land (starting point, ending point, width, line etc.);

(v) Exclusive (some jurisdictions)

 Need to be only one using

(b) O’Dell v. Stegall

(i) Facts: P prefers to use “gravel lane” as an additional way to access his land. Gravel lane was
used by prior church-goers from P’s land. Gravel lane owned by D and others. D’s only way
to access land was through gravel lane. D says P’s use will cause wear/tear & no prescriptive
easement.

(ii) Holding: P did not have a prescriptive easement

(iii) Rule:

 Adverse/Hostile: Court presumes consent; burden on person claiming prescriptive

easement to show adverse use

 Must use property as a reasonable owner would

 Most states – still presume adversity

 Continuous: Allows tacking of church-goers use, but must have privity

 Tailored to reasonable owner

 Open/Notorious: Saw church-goers and P using gravel lane

 Reasonably Identifiable: Gravel lane has identifiable start/end point

(iv)Rationale: (1) not even clear that P is suing right person; that D owns lane, so it’s hard to
show adversity to rightful owner if you don’t know who that is; (2) Not giving easement still
encourage productive use of land—P is seeking an “added benefit.”

(c) Possibility of public prescriptive easement—if public commonly uses and you don’t do anything

5) Easement by estoppel (or irrevocable license)

(a) Permission given under such circumstances that person should reasonably foresee recipient will
change position on basis of permission
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(b) Elements

(i) Owner of land permitted use—creating license;

(ii) Reasonably foreseeable under circumstances that reliance on permission would change
user’s position to their detriment

 Licensor need not know of reliance.

(iii) Licensee relies in good faith on permission/changed their position

 Needs to be logical connection b/t permission given and use

(c) Overcomes the SoF b/c reasonable reliance.

(d) Kienzle v. Myers

(i) Facts: Sewer line installed on street. One party installed sewer through trench, other would
connect to trench (instead of excavating entire driveway to directly connect to sewer).
Kienzle and Myers bought properties. Breakdown in relationship. Kienzles trying to revoke
Myers’s license to use trench.

 No express easement because doesn’t satisfy SoF (no writing).

(ii) Holding: A property owner’s reasonable reliance on adjacent owner’s permission for use
ripened into easement by estoppel

(iii) Rationale: Ct. angry that this is being revoked after 25yrs of use…

(iv)Kienzle = Bona-Fide Purchaser? Court ignores; but Kienzle may not have to honor easement
if he bought w/o knowledge of prior easement.

(e) Why not prior-existing use?

6) Enforcing Restrictions

(a) Defenses: (1) unreasonableness; (2) Abandonment; (3) changed conditions

(b) Nahrstedt v. Lakeside Village Condominium Assoc.

(i) Facts: Pet restriction by condo developer said “no animals (including dogs/cats).” P bought
condo & moved in w/ 3 cates. Claims she didn’t know.

(ii) Holding: Pet restriction was rationally related to health, safety, sanitation and noise
concerns, and was therefore reasonable.

(iii) Rule: Reasonableness. CC&R’s will be enforced unless unreasonable

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 Deference given for reasonableness. Look to common interest of development, not to

individual condo owner.

(iv)Rationale: Utilitarian; one person’s interest in cats v. rest of condo owners.

(v) Discussion: Difference b/t insider restrictions (e.g. no TV) and outside (pets)

Eminent Domain – Gov’t power to take private land

OOO) Fifth Amendment Takings Clause
1) “Nor shall private property be taken for public use w/o just compensation”

(a) Underlying assumption: Gov’t has power to take private property. Clause is a restriction on that
power.

(b) Four Elements

(i) Private Property

 (1) Real Property; (2) personal property; (3) intellectual property

(ii) Taken

 Physically taken away

 But see: Regulatory Takings

(iii) Public Use

(iv)Just Compensation

 Fair market value

 Drawback: Doesn’t account for personhood; chooses one point in time

PPP) Defining Public Use

1) Easy Cases: Highway, bridges, transforming slum area etc.

2) Can transfer from one private citizen to another

3) Hawaii Housing Authority v. Midkiff

(a) Facts: Feudal system in Hawaii; private property concentrated in small group of landowners.
Hawaii legislature adopts statute to allow state to take title and resell

(b) Holding: Fifth amendment does not prohibit this taking. State gov’t does have this power to take
for compensation.

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(c) Rule: Public Use: Rationally related to a conceivable public purpose

(i) Conceivable

 Deference to legislature

 “Coterminous” with sovereign’s police power

 “Police Power” – promote/regulate health, safety, welfare, and morals

(ii) Public Purpose

 Government need not actually use property; “only the taking’s purpose, not its mechanics
that must pass scrutiny.”

(d) Rationale: Here, police power was to ensure land/wealth not concentrated in feudal system.
State wanted to “correct a market failure.”

(i) Ct. doesn’t care about gov’t’s other ways to regulate market (subsidies, taxes)

4) Kelo v. City of New London

(a) Facts: New London approved development plan to create jobs, increase revenue, and revitalize
city’s distressed economy. P is unwilling owner that doesn’t want to sell house. City didn’t plan
on opening condemned land to general public.

(b) Holding: Does not violate 5th Amendment; look to entire Plan’s importance and City’s overall
interest in the economic benefits derived from development.

(c) Rule: Gov’t taking from one private owner to another in furtherance of economic development
constitutes a “public purpose”

(i) Reasonably necessary to achieve City’s intended public use

(ii) Taking was for “reasonably foreseeable needs

(d) Rationale: Don’t subject “public needs” to a rigid formula; defer to legislature

(i) Police Power – economic development is central role of government

5) “Purely Private Taking” – violated 5th Amendment; Ct. doesn’t define

(a) “Purpose to favor a particular private party” – Kelo (Kennedy, J. Concurring)

Regulatory Takings
QQQ) Fifth Amendment requires a “taking”
1) Regulatory Taking – city creates regulations that restrict owner’s rights so much that it’s functional
equivalent of a taking.
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RRR) Noxious Use/Nuisance Test

1) Mugler v. Kansas – can prohibit brewery from manufacturing alcohol. Not a taking b/c the owner is
not entitled to “inflict injury by noxious use” of his property.

(a) Rule: Prohibition for health, safety, and morals is not a taking

2) Hadacheck v. Sebastion – Prohibiting brick manufacturing is a police power.

SSS) Diminution in Value Test – consider financial impact of regulation that prevents harm
1) Pennsylvania Coal Co. v. Mahon (Holmes, J.)

(a) Facts: PA recognizes three estates in land: (1) surface rights; (2) mineral rights; and (3) right to
support. Right to support = leave enough minerals to support what’s above surface.

(i) Penn Coal, through deed, given rights to remove all coal (mineral and right to support).
Mahon has surface rights & wants to prevent Penn. Coal from mining under property in a
way that would cause a collapse of house. PA statute forbids mining of coal in a way that
causes collapse of house. Issue: whether PA statute constitutes a taking?

(b) Holding: PA statute constitutes an unconstitutional taking w/o just compensation

(i) PA had to buy sub-surface rights from Penn Coal before restricting use

(ii) When you take 100% of value of Penn Coal’s property rights, it’s a taking. But see:
denominator problem.

(c) Rule: If a regulation goes “too far” it will be a taking

(i) “When the extent of diminution of property reaches a certain magnitude, it must be
considered an exercise of eminent domain and require compensation”

 Case-by-case anaylsis.

(ii) Reciprocity of Advantage: if “burden” imposed on property owner by reg. is offset by

“benefits” flowing from regulation, it will not be a taking

 Here—no benefit to Penn Coal (unlike a different case about coal miner safety) because
there are no safety concerns. This is lose-lose for Penn.

(d) Rationale:

(i) Diminution in value destroys Penn Coal’s existing property rights (can’t mine)

(ii) Notice to private owner by Penn Coal would provide adequate safety

(iii) No nuisance here = only one parcel/house; looks only at effect on one house.

(e) Dissent(Brandeis, J.): “merely the prohibition of noxious use”

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(i) Brandeis says “this isn’t one person, but windfall benefit of not destroying an entire
community’s homes.”

(ii) Denominator here is all of Penn Coal’s property interests—so they’ve lose very little. So
Penn. Coal hasn’t lost 100% of interest.

 Diminution in value is not, by itself, enough to be taking.

(iii) Difference b/t government regulating to prevent harm and confer benefit. Here, the
reciprocity of advantage should not even factor in because Gov’t is only trying to prevent
harm. Even if it factors in, Penn. Coal gets the “benefits of operating a business in a civilized
community.”

TTT) The Penn Central Standard – benefit-conferring regulation may be a taking

1) Penn Central Trans. Co. v. City of New York

(a) Facts: P entered into 50yr lease to construct office bilding on top of Grand Central Station. NYC
regulation prevented P from adding office space on top in so to 1) preserve the historic structure;
& 2) aesthetic appeal/quality of life for all

(i) Commission denied application to build on top b/c it would have torn down part of Station; P
says “you’re depriving our air rights” over Grand Central

(b) Holding: The NYC regulation is not a taking because the restriction is substantially related to
legitimate public interest

(i) When interference arises from public program that adjusts benefits & burdens of economic
life to promote public good, a “taking” is less likely.

(ii) If regulation confers widespread public benefit, even if it severely diminishes property value,
it is not a taking.

(c) Rule: Diminution in value, alone, does not establish a taking.

(i) Three Factor Balancing Test

 Economic Impact of Regulation on Claimant

 87.5% in Hadacheck – not a taking; here, air rights are only one part of economic
value.

 Transferable development rights – Penn Central gets to build even higher than
existing zoning laws on building right next door…

 Does regulation interfere with distinct, investment-backed expectations

 Penn Central says “entire purpose of lease agreement was building”

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 Ct. “it was, is, and continues to be train station; you knew that when you bought it;
NYC reg. was in place when you needed approval.”

 Original Grand Central plan was 20-story tower, at most, that was the extent of your
expectation

 Character of Government Action

 Restriction (on building) is different from affirm. act/physical taking

 1) physical nature of action; 2) reason for action

(d) Rationale

(i) Fact that it burdens some (Penn Central) more than others, not an issue

(ii) Grand Central can still be used in same manner as it was for 65yrs; not being able to make
future improvements isn’t a taking.

(iii) Cannot add 50 stories; perhaps 2-3 stories = okay, but that wasn’t plan.

UUU) The Denominator Problem – Court Never Answers

1) A owns 100acres; County zones 95% of land. A can use 95% of 100acres for residential use, but 5%
must remain forest b/c of county ordinance.

(a) Has A lost 100% of 5 acres or 5% of 100acres.

VVV) 3 Categorical Takings

1) Regulation Authorizes “Permanent Physical Occupation” of Land

(a) Loretto v. Teleprompter Manhattan

(i) Facts: NY law says landlords must permit cable TV companies to install wiring/facilities on
property. Loretto buys 5-story apt. Wires/cable boxes already attached on her roof that she
discovered 2yrs later.

(ii) Holding: Compensation is required here because this is a taking; Ct. treats physical invasion
as very serious.

(iii) Rule: A permanent, physical occupation is per se a taking.

 “Permanent” = takes away right to exclude

 “Physical” = something actually physically on land

 “Occupation” = Third-Party cable company is coming in and installing;

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 Unlike landlords being required to install mailboxes/smoke detectors themselves

(which is not regulatory taking).

(iv)Rationale: No statute of limitations. Size of intrusion doesn’t matter.

(v) Dissent: Untenable distinction b/t temp. invasion and permanent occupation

(vi)Remedy: $1 b/c cable actually improved value of homes

2) Regulation Causes “Loss of all economically beneficial or productive use” of land, “unless
justified by background principles of property or nuisance law”

(a) Lucas v. South Carolina Coastal Council

(i) Facts: Lucas bough beachfront property w/ intent to build 2 homes. After purchase, SC Act
prohibited building residential unit to prevent coastal erosion. Act applied to “critical areas.”
Lucas’s parcels became critical areas.

(ii) Holding: This is a taking. Lucas has no more economic/productive use of land.

 But, he can still sell land to someone who doesn’t want to build residential unit…

(iii) Rule: Loss of all economically beneficial or productive use is always a taking

 Exception: legislature can enact long-standing principles of nuisance law

(iv)Rationale: When owner is forced to leave property economically idle in name of public
good, he suffered a taking.

(v) Dissent: Ct. launches a missile to kill a mouse; freezes nuisance law in time

3) Demands an exaction that has no essential nexus to a legitimate state interest or lack roughly
proportionality to the impacts of the particular project

(a) Exaction = a condition for development imposed on a parcel of land requiring developer to
mitigate anticipated negative impacts of the development

(i) No link to state interest or disproportionate impact on claimant.

Theme
WWW) Fairness vs. Judicial Efficiency

1) Judicial efficiency – state legislature write bright-line test; vs. fairness/equity.

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