Property Outline 2009: Riley

WHAT IS PROPERTY?
I) Property rights: concern relations among people regarding control of valued resources.
a) Real Property: rights in land and anything attached to land
b) Personal Property
i) Chattels: tangible visible personal property (i.e. jewelery)
ii) Intangible Personal Property: invisible things (i.e. stocks, patents, debt)
II) Bundle of entitlements: privilege to use the property, the right to exclude others and power
to transfer title to property.
a) Sticks within the bundle Right to: use, possess, destroy, alienate, exclude, transfer
III) Tension within Property system
a) Right to exclude vs. right of access (racial discrimination, etc)
b) Privilege to use vs. security from harm (nuisance, zoning, etc)
c) Power to transfer vs. powers of ownership (free to alienate property vs. dead hand)
d) Immunity from loss vs. power to acquire (not immune from loss unless gov take land)
IV) Themes of Property
a) Property rights are not absolute
b) Traditional: property exists in the world separate from ppl and the law
c) Modern: moving towards legal realism that property does not exist without law
i) Property is about relationships btwn ppl, not things (ability to exclude, etc)
V) Normative Approaches
a) Traditional American Indian: spiritual, oriented to sharing
b) Legal Positivism and Realism: property exists to extent that law & govt will protect it
c) Natural Law Theory: (Justice and Fairness): fundamental justice independent of govt
i) Labor/Desert theory: Locke, ppl entitled to property thats produced by their labor
ii) Rights theory: moral trumps general public policy
iii) Autonomy: individual should have control over environment
iv) Distributive justice
d) Utilitarianism, social welfare, and efficiency: measure costs and benefits
e) Social relations: every entitlement is limited by competing rights of others

ACCESS TO PROPERTY
I) How do we get property?
a) Transaction or contract: i.e. dealership, sign contract, pay money, deed is yours
b) Familial relations: family dies and leaves you property
c) Social Custom: Pearson v. Post, how ppl think about property
d) Labor/Investment: Theory of mixing your labor with the land creates a property right
e) Legal Positivism: Johnson v. MIntosh, govt gives land, so Indian deed is worthless
f) Conquest: Colonial theory that all land was supposed to devolve. People who came usurped the
people who were already here. In this theory, all land traces to U.S. govt
II) Conquest and Distribution by the Soverign

a) Johnson v. MIntosh 1823 p. 4: Johnson got title from Indians, Mintosh got identical parcel
from govt. Held: Indian title not valid bc U.S. has power to grant title to lands. Indians do not
have the alienability stick in the bundle, but they have right of occupancy.
i) Doctrine of discovery: discovery gave title to the govt, whose authority gave them possession
over all other European nations
ii) Indian notion of ownership: Their values of community and foraging the land meant they
didnt believe one could own land, therefore they couldnt sell it
iii) Labor theory: Indians didnt mix enough labor w/ land (no cultivation) for ownership
III) Capture: Generally, no one owns wild animals (ferea naturae) in their natural habitat. When you
actually possess an animal, it creates presumption of ownership
a) Pierson v. Post 1805 p. 76: Post pursued fox for hours with hounds and Pierson killed and took
the fox. HELD: While mortally wounding the fox gives (constructive) possession rights to an
animal, mere pursuit gave Post no legal rights, fox is Piersons.
i) 3 part test: 1) intention to appropriate, 2) deprive of natural liberty, 3) brought w/in certain
control
ii) Policy: dissent argues for reasonable capture or labor rules; mortally wound is murky, too.
b) Popov v. Hayashi p. 79: P caught Bonds homerun baseball, a mob engulfed, he dropped ball. D
picked it up & refused to turn ball over. HELD: ball must be sold; proceeds divided btwn them
i) Pre-posessory right using 3 part test can also think of INS v. AP (capture of ideas).
ii) Grays Rule: possession doesnt occur until fan has complete control of the ball
iii) Pierson: possession occurs by intending to control the ball, shown by stopping its forward
momentum whether or not complete control is achieved.
iv) Courts rationale: There is no proof that but for the crowd Popov would have caught the
ball, because Popov was stopped by unlawful acts by mob. Ct says Popov has a prepossessory interest, therefore Hayashi has a cloud on his property.
c) Elliff v. Texon Drilling Co. 1948 p. 83: Texon drilled for oil in a plot near Elliff (shared a
common pool of gas). Texon blew out a well, destroying one of Elliffs wells and wasting a lot of
oil that blew into the air. HELD: Texon liable for Eliffs wasted oil
i) General rule: absolute title in severalty to oil/gas beneath land with 2 limits:
(1) Police regulations
(2) Law of Capture: owner of land acquires title to oil which he produces from wells on his
land even if part of the oil may have migrated from adjoining lands.
(3) Mineral rights at moment of capture
(a) Correlative Rights Doctrine: one has right to appropriate gas & neighbor has
correlative right to appropriate gas from the pool; thus both have equal rights
(b) Policy: incentivize efficient extraction of oil
ii) Courts rationale: Policy of law of capture is efficient oil extraction, so where Texon was
negligent, they are liable. Law of capture protects only reasonable and legitimate drainage
from a common pool. (note tension of freedom vs. security)
IV) Labor and Investment
a) International News Service v. Associated Press 1918 p. 32: INS took APs news from bulletin
boards and re-printed it for newspapers on the westcoast.
HELD: News is quasi-property when between competitors
i) Quasi-property: News cant be copyrighted bc it is factual. However, bc court wants to
incentivize investment into discovering news, it says that bc labor was mixed with the
discovery of the news, AP has some nature of property rights
ii) Relativity of title: AP has rights to news compared to INS (competitor) but not compared to
reg. customer
iii) Holmes dissent: News is not property, analyze this as unfair competition in tort.
iv) Elements of misappropriation on pg. 36

b) Moore v Regents of Univ. of California p.45: Moore had leukemia, doctors used his cells to
make patented cell line; Moore claims conversion (tort protects interference w/ possessory
interest in personal property)HELD: no conversion bc the raw material used to create cell line
was so small a part, that no possession is warranted.
i) Moores cells NOT unique (not like a face) bc they could have used anyones cells
ii) Labor/Desert theory: Justifies not giving Moore possessory interest bc it was the doctors who
put in all the labor and investment to come up with the cell line. Raw material is not enough
iii) Utility: we want to promote science and dont want everyone to have a possessory interest
everytime they give blood
iv) Dissent: Its his own body, he should have been given right to do what he wants with it, and
now you have potential abuse of misrepresentation by doctors.
V) Gift: transfer of property from one person to another without payment (intervivos of testimentory)
a) Law of gifts requires:
i) Intent to transfer title
ii) Delivery of the property
iii) Acceptance by the donee
VI) Finders Law: A finder of property acquires no rights in mislaid property is entitled to possession of
lost property against everyone except the true owner, and is entitled to keep abandoned property.
a) Relativity of title: great illustration with finders law bc finders possession all depends on owners
intent.
b) Categories of found property:
i) Lost: unintentionally misplaced property
ii) Mislaid: intentionally placed property, but owner forgets where she put it
iii) Abandoned: intentionally and voluntarily relinquished property
iv) Treasure trove: gold, silver, etc intentionally concealed by unknown owner in a secret
location (i.e. buried underground) in the distant past
c) Rights of Finder Against Landowner:
i) Objects found on Private Land Generally
(1) Location of object: objects found either in a house or embedded in soil are awarded to
landowner, not finder bc of rationale of constructive possession.
(2) Status of finder: lawful occupant, like a tenant, more likely to get possessory rights than
a mere employee of the landowner
(a) If trespassing, then trespasser has no rights to property found while trespassing.
ii) Rights to Treasure: English = to King, Old US = to finder, Modern US= to landowner, unless
finder was not trespassing when found.
d) Charrier v. Bell p. 92: Amateur archeologist asked caretaker if he could dig on land; did not ask
true owner. P found Indian burial sites and sold artifacts to university. Initially lied about origin, but
then revealed source. HELD: Court found P had no right to artifacts
i) Abandonment claim rejected bc theory doesnt extend to burials bc incentivize grave robbing
ii) Unjust enrichment claim rejected bc Indians were NOT enriched since they were distraught
over the ruin of their burial ground and P could not show impoverishment necessary for the
claim since he assumed the risk by not asking permission to excavate
e) Note on Grave Protection:
i) Laws protect graves, but early sense was Indian graves werent real.
ii) Reburial of American Indian Human Remains Found on Private Property Laws
(1) Modern trend to preserve Indian graves extending traditional rights to their graves
(2) Artifacts found now belong to lineal descendents even if not perfect lineage
(3) Museums have to return artifacts except if substantial specific scientific benefit
VII) Trespass and Right of Reasonable Access
a) The Right to Exclude
i) Utilitarian justification bc law protects owners right to maximize efficient land use

b)

c)
d)

e)

f)

g)

ii) Modern right curtailed for public policy reasons (Shack Property rights serve human values.
They are recognized to that end, and are limited by it.)
iii) The more open to the public, the smaller the right to exclude becomes
Trespass: any intentional and unprivileged entry onto land owned or occupied by another
i) Privilege prong:
(1) Consent
(2) Necessity: preventing more serious harm than trespass causes (firefighter)
(3) Encouraged by public policy: i.e. access to a cemetery
ii) Intentional prong:
(1) Voluntary act; strict liability offense. No knowledge needed and mistake irrelevant
iii) Intrusion prong:
(1) Intrusion occurs the moment you enter property, below or above ground
iv) Remedies: Civil: Damages, Injunction, Declaratory Judgment or Criminal charges
Trespass v. Nuisance: Trespass protects owners right to exclusive possession and Nuisance protects
owners use and enjoyment of the land (murky line in modern times)
Trespass and Rights of Migrant Farm workers
i) State v. Shack p. 104: Ds entered Ps property to aid migrant farmworkers employed and
housed there. D wouldnt leave, so charged with trespass. Court drops charges.
(1) Rule: Property rights serve human values. The migrant worker should be entitled to
receive visitors, as long as behavior is not hurtful to others.
(2) Limits to rule: Visitor must 1) identify self 2) state general purpose
(3) Landlord tenant model not appropriate bc no lease signed, no negotiation of terms
Investigative Journalism
i) Desnick Food: reporters used false resumes to get jobs at supermarkets and secretly videotaped
unsafe food handling. Trial ct said fraud and awarded millions, but Ct. app reversed saying that
fraud in obtaining employment caused nominal damage, any harm was caused by the broadcast,
not the fraud damages set at 2 dollars
(1) However, trespass did occur bc the videotaping was outside scope of invitation
Trespass to Computer systems (trespass usually intrusions on real property)
i) Trespass to Chattels: version of trespass applying to personal property
(1) Mere touching of the object is not sufficient to constitute trepass
(2) Must show some injury to property (automated bidding that slowed Ebay counted)
Right of Reasonable Access to Property Open to the Public
i) Utson v. Resorts Intl Hotel (NJ)p. 116: casino excluded Utson bc of his card-counting.
HELD: Casino has no right to exclude, unless person disrupts regular and essential business or
threatens security, bc it extends reasonable access to public (minority view)
(1) Now Common law right of reasonable access back to exclusive right to property owners,
bc idea is that civil rights statues prevent arbitrary exclusion
(2) Common law rule traditionally only for innkeepers and common carriers, Utson extends
right of reasonable access to all business open to the public.
ii) Madden v. Queens Jockey club (NY) p. 121: court upheld clubs right to exclude Madden,
whom the clubowners thought was a bookie. Common law right of reasonable access applied
only to common carriers and inn keepers, not to places of amusements and resort, which
enjoyed an absolute right to exclude and had power to serve whom they pleased; limited only
by civil rights laws
iii) Justification for special obligations on innkeepers
(1) More likely to be monopolies
(2) Provide necessities
(3) Hold themselves out to serve the public

RELATIONS AMONG NEIGHBORS

I) Adverse Possession: transfer of owners title to trespasser who has met certain requirements
a) Requirements of Adverse Possession, Occupant acquires title to land if possession is:
i) Actual
ii) Exclusive
iii) Open and notorious
iv) Adverse (or hostile) under a claim of right
v) Continuous
vi) For the statutory period
(i) Note: Rigid rules adopted by legislature settle dispute quickly, but judges often
find rigid rules unjust, so they respond my making exceptions
b) Reasonable owner standard given the location, nature and character of the land. (i.e. Nome, the
land used as a summer home allowed adverse possession bc of nature of land)
c) Policy reasons for Adverse Possession
i) Utilitarian: encouraging maximum utilization of land
ii) Justice and Fairness: the adverse possessors interest is initially fungible but becomes
personal, where as the owners interest dwindles to nothingness
iii) Security: Possessor has reliance interest in longstanding property occupancy.
d) Policy reasons for protecting the land-pirate. Good faith standard not used because:
i) Adverse possession doctrine creates security bc owners rely on existing practical
arrangements. Good faith would make property rights too unpredictable
ii) Failure of true owner to object might be understood as abandonment
iii) Incentive for landowner to bring action in a reasonable amount of time
(1) i.e. dont want Native Americans suing U.S. for taking land in 18 th century.
e) Color of Title v. Claim of Right:
i) Statute of limitations may differ based on whether color of title or claim of right
ii) Adverse element: if state requires good faith, if color or claim makes a difference.
iii) Color of Title: exists when an adverse possessor has a claim to the land based on a defective
document that purports to transfer title, such as an invalid deed or will.
(1) Intent of possessor: almost always acting in good faith
(2) Some states lower the amt of years needed for adverse possession
iv) Claim of Right: Prior owner of land said current owner owned particular land and then
current owner then used and cultivated it, creating claim of right by their actions.
(1) Intent of possessor: unclear state of mind
f) Actual: Adverse possessor must take actual possession of the land; requiring that the claimant
must physically use the particular parcel of land as the reasonable owner would.
i) Minority: CA and NY specify particular conduct that constitutes actual possession: claimant
must cultivate, improve or substantially enclose the property
ii) Exception: Constructive possession
(1) Color of Title: exists when an adverse possessor has a claim to the land based on a
defective document that purports to transfer title, such as an invalid deed or will.
(a) Doctrine of Constructive possession: Claimant with color of title who has actual
possession of part of the land described in the deed is deemed to be in constructive
possession of the entire parcel.
(b) Romero v. Garcia p. 185: P bought land from deceased husbands parents but there
was a defect in the deed and land wasnt properly described. However, there was a
fence to indicate probable land boundaries.
(i) NM also had additional requirement that adverse possessor pay all taxes against
property, which P complied with.

(ii) Ct found that if deed didnt have proper description, if there is extrinsic evidence
on the ground to ascertain the boundaries, the possessor gets it.
(c) Nome: Fagerstrom only got northern portion bc claim of right, not title and they
didnt use the southern portion enough for adverse possession.
iii) Prescriptive Easement vs. Adverse Possession: if scope of non-owners actions is limited,
then an easement gives limited rights to use the property of another
(1) Elements the same except actual possession becomes actual use
(2) i.e. Right of way would be a prescriptive easement and a Mistaken boundary would
depend on the use of the land on the boundary.
g) Exclusive: Possession must not be shared with either the true owner or the general public,
however absolute exclusivity not required. Claimants possession must be as exclusive as would
characterize an owners normal use for such land.
h) Open and Notorious: Possessory acts must be sufficiently visible and obvious to put a
reasonable owner on notice that property is occupied by a non-owner. No requirement to prove
actual knowledge, just that a reasonable inspection would disclose the use.
i) Purpose: to put true owner on notice so they can interrupt statutory period with ejectment
claim
ii) Test: What would put actual owners on notice depends on the type of land.
(1) Building fences, Living on the land, Mowing the lawn, Laying a driveway,
Parking, Crops, etc.
(2) Requirement is troublesome for wild, unimproved lands. Acts that constitute
possession of such lands are often minor and infrequent, so courts will accept a
lower degree of openness and notoriety.
(a) Nome 2000 v. Fagerstrom p. 187: Fagerstrom used a rural parcel of land for
recreational activities during the summer for several years. Ct said they had
fish racks, outhouse, etc. was open enough and the fact that they used land
during best season. When land is rural, a lesser exercise of dominion and
control may be reasonable.
i) Adverse: Most confusing, but most courts believe it to mean non-permissive
i) 3 approaches to the Adverse Possessors state of mind
(1) Objective test: (majority) adverse possessors state of mind is irrelevant, must only prove
lack of permission to satisfy this element.
(a) Nome: Native land claims: rejected by the court bc they explained that even
if Indians dont have traditional notions of ownership, its not their state of
mind that matters, but their actions that matter.
(2) Good faith test: (minority) Adverse possessor must believe in good faith that he owns the
land
(3) Intentional trespass test: (a couple) adverse possessor must know that he does not own
the land and must intend to take title from the true owner.
j) Continuous: Standard doesnt mandate that claimant physically occupy the land every minute.
Required continuity is measured by the location, nature and character of the land. Test: claimants
acts of possession need only be as continuous or sporadic as those of a reasonable owner.
i) Nome p. 187: Fagerstrom used rural land for many years seasonally bc too cold to use in the
winter. The court found that this use was continuous bc it was being used as a true owner
would use it.
ii) Tacking Doctrine: the attachment of prior owners adverse possession can be used to meet the
statutory period as long as current owner is in privity with prior owners. Privity arises when
one claimant transfers possessory rights to another. (i.e. deed)
(1) Brown v. Gobble p. 179: D had a fence that enclosed 2 ft tract of land that P actually had
the deed to, bc P wanted to build a road there. Ct said D has successful claim of adverse

possession under claim of right because of tacking. D showed that prior family met
adverse possession elements when they lived there
(a) If land was leased or sold and bought back, the possession would not be continuous
and the statute of limitations would have to start running again.
k) Statutory period: range from 5 to 40 years, usually about 10 to 20
l) Special Restrictions
i) Claims of adverse possession against the govt are not usually successful
ii) Minor, Incompetent or Imprisoned owner
(1) Limitations period is extended or tolled when owner is unable to protect interest due to a
disability.
(2) Co-tenant usually has equal right to occupy, so no adversity or hostility
II) The Improving Trespasser
a) Encroachment: a permanent or continuing trespass caused by the construction of a building or
other improvement that partially extends onto anothers land.
i) Removal of Encroaching Structure: Relative hardship
(1) If structure decreases value of neighboring property, owner usually wants it removed
(a) Old courts: owner had absolute right to remove structure
(b) New courts: Relative Hardship Doctrine: If encroachment is innocent (the result of
a mistake), the harm minimal, the interference in the true owners property interests
small, and the costs of removal substantial, the courts often refuse to grant an
injunction ordering removal and instead allow damages.
b) Entire Structure Built on Land Belonging to Another
i) Unjust Enrichment vs. Forced Sale:
(1) If structure increases value the owner may want to keep the structure; Courts ordinarily
hold that the structure belongs to the owner of the land on which it sits.
(2) Issue: Does builder have right to be compensated to avoid unjust enrichment?
(3) Somerville v. Jacobs p. 218: Builder mistakenly built on Ds land bc of reliance of
surveyor. Both acted in good faith, so the court held that the improver could recover
value of improvements or purchase the value of the land.
(a) Tension btwn unjust enrichment & forcing private party to alienate their property
(b) Dissent: the solution favors the person who made the mistake, so D should be given
option to have the structure removed
(4) Bad faith builder will not get compensation.
(5) Betterment statutes: allow owners to choose btwn paying builder or selling land if the
builder had color of title and believed in good faith that land was his.
III) Nuisance:
a) Defined: a substantial and unreasonable interference with the use or enjoyment of land.
i) Rest II: a nontrespassory invasion of anothers interest in the private use and enjoyment of
land, but this is overbroad.
ii) Examples: Vibrations, pollution, noise, odor, gas
iii) Nuisance per se (always a nuisance) v. per Accidens (nuisance in circumstances but not
always a nuisance)
b) Two separate questions in all nuisance cases:
i) Which party has basic entitlement? (Does P have right to be secure from this kind of harm or
does D have right to engage in the activity?)
(1) Look to unreasonableness of interference and substantial-ness of harm
ii) What remedy will be used to vindicate the entitlement? (injunctive, damages, both, nothing)
c) Comparisons:
i) Trespass v. Nuisance: intentional invasion of Ps interest in exclusive possession of his
property v. substantial & unreasonable interference w/ Ps use and enjoyment of property

d)
e)
f)

g)

h)

ii) Negligence v. Nuisance: Unreasonable conduct v. unreasonable result (the interference)

iii) Public v. Private Nuisance: activity that interferes with rights of public in general (public
health, safety, morals) v. more common private nuisance
Particles: trend to recognize as both tresass and nuisance; however Bradley ct said that a trespass
could only occur if particles fell to ground rather than dissipating thru air AND only if P could
prove substantial damage. (consequences argument of limitless liability)
Encroaching trees: Damage by encroaching trees may not bring any remedy bc P is entitled to
self-help to cut encroaching branches, so she could have avoided damage.
Two components of Nuisance: Catch-all doctrine (flexible, but relatively high standard)
i) Unreasonable interference
ii) Substantial harm
iii) Also note that its important to look at the statutory environment in the jurisdiction
Unreasonable Interference:
i) FAIRNESS:
(1) Looks at these two specific parties to decide who has the right and what is most fair.
(2) TEST: Whether the operation of lawful trade or industry constitutes a nuisance is the
reasonableness of conducting it in the manner, at the place and under the circumstances
by the evidence. Ct uses the following Factors to determine reasonableness:
(a) Coming to the Nuisance who was there first?
(i) Priority of occupation & location is a circumstance of considerable weight.
(ii) This can be asserted as a defense by D.
(b) Character of neighborhood
(c) Nature of alleged wrongful conduct
(d) Proximity to Ps property
(e) Frequency, continuity, duration of nuisance
(f) Nature and extent of resulting injury to P
ii) SOCIAL UTILITY:
(1) Looks at costs and benefits for society, THIS has become the dominant test.
(2) Rest II: Conduct is unreasonable if the gravity of the harm outweighs the utility of the
actors conduct. Ct compares utility v. gravity of harm using these Factors:
(a) Gravity of the harm to P:
(i) The extent of the harm (in terms of degree and duration)
(ii) Character of the harm (physical damage or personal discomfort)
(iii) Social value of Ps use and enjoyment
(iv) Suitability of the particular use of enjoyment invaded to character of the locality.
(v) Burden on P of avoiding the harm
(b) Utility of Ds conduct:
(i) Social value of the primary purpose of Ds conduct
(ii) The suitability of the conduct to the character of the locality
(iii) The impracticability of preventing or avoiding the interference.
Substantial Harm:
i) TEST: standard of normal persons in a particular locality to measure existence of a
nuisance.
(1) An unusually sensitive plaintiff cannot make of usually harmless conduct a nuisance.
(2) If a normal person living in the community would regard the interference as strongly
offensive or seriously annoying, then the level of interference is substantial enough to
impose liability.
(3) The law does not concern itself with trifles, and therefore there must be a real and
appreciable invasion of the plaintiffs interests before he can have a cause of action for a
private nuisance

ii) The above Policy of Utility or Fairness can dictate whether the harm is substantial enough or
what type of remedy will be allowed. Similar Factors are used to determine substantial-ness:
(1) Unreasonableness, gravity of harm, utility of conduct and priority of occupation
i) Remedies: Injunctive Relief, Money Damages, both or no relief
i) Balancing the Equities (the Boomer Approach)
(1) Cost/Benefit considerations can change the type of remedy used.
(a) It used to be that if harm was bad enough that P could always get an injunction, but
after Boomer (ct. allowed cement factory emitting to keep running bc the factorys
benefits to society outweighed its cost), damages were sufficient to compensate P
unfairly sacrificing his property interests.
(b) Example: D is creating a malaria vaccine thats saving thousands, but is emitting
pollution. Not FAIR to P, but unfairness doesnt outweigh benefit to society. Thus, ct
awards P damages instead of an injunction.
j) Current Private Nuisance law OVERVIEW:
i) P can get an injunction against D when:
(1) Ds conduct is unreasonable (causes more social harm than good) and causes
substantial harm to P
ii) P can get damages but no injunction if:
(1) Ds conduct is reasonable (causes more social good than harm and therefore should be
allowed to go forward), but P suffers substantial harm so that it is unfair to burden P
with the costs of Ds socially useful conduct.
iii) P is entitled to no remedy if:
(1) The harm to P is not substantial, or
(2) Ds conduct is reasonable (causes more social good than harm), and it is not unfair to
impose the costs of Ds activity on P, or
(3) The imposition of damages would put D out of business and avoiding this result (bc of
the social value of Ds conduct) is more important than preventing the harm to P.
iv) P is entitle to a purchased injunction if:
(1) Ds conduct is unreasonable (causes more harm than good), but it is fair to impose the
cost of shutting down Ds activity on P (i.e. if P comes to the nuisance)
k) Policy for Nuisance:
i) Property rules: fix an absolute entitlement either to engage in the conduct (no liability) or to
be secure from the harm (injunctive relief ordering D to stop committing the harm)
(1) Price of entitlement would be fixed by private bargaining rather than court order.
ii) Liability rules: prohibit each party from interfering with interest of others, unless the party is
willing to pay damages determined by the court.
(1) If P entitled to be protected from harm, then Ds failure to prevent from harm subjects D
to damages.
(2) If D is free to engage in the harmful activity, Ps will not get an injunction to stop the
activity unless P compensates D for the economic losses associated with stopping the
activity, which is a purchased or conditional injunction.
iii) Inalienability rules: assign entitlements & prohibit those entitlements from being sold/exchanged
(1) If D cannot commit harm (i.e. environmental statute), any agreement by P to allow D to
commit the harm is unenforceable.
(2) If D has right to engage in protected activity, any agreement where D gives up right to
engage in conduct is unenforceable.
l) Who can be sued? One who materially participated in causing the harm (Page County) or
Substantial factor is also sometimes used
m) Page County Appliance v. Honeywell (p. 273): Appliance center started having trouble with its
display TVs when nearby travel agency installed an ITT computer manufactured, installed, &

maintained by Honeywell. Honeywell tried to correct interference but only a 70% improvement.
Page sued for nuisance & tortious business interference, wanted injunction against travel agency.
i) Unreasonable interference: Reasonable manner of conducting business in place & circumstances?
(1) Page had priority of occupation & location, which ct. found of considerable weight
ii) Substantial harm: Not hypersensitive bc presence of TVs on any premises is not such an
abnormal condition that we can say the owner is peculiarly sensitive. Especially when his
business was there first.
iii) Material participation of Honeywell allowed it to be sued for Nuisance, even if it was ITTs
store. They were the ones in control of the radiation.
n) Public Nuisance
i) an unreasonable interference with a right common to the general public
ii) Traditionally could be enjoined only by public officials, and private landowners could obtain
remedy only if suffered special damage different from general public, but more expansive now
o) Statutes have made nuisance litigation less relevant
p) Light and Air:
i) Rejection of Nuisance Doctrine: No Easement for Light and Air
(1) Fontainebleau Hotel v. Forty-five Twenty-five (p. 284): Fontainebleau wants to build a
new tower that will cover the sunlight of the Eden Roc hotel.
(a) HELD: No legal right over sun or air, regardless of the fact that the structure may
have been erected partly for spite. As long as within building codes, Fontainebleau
can build as high as they want.
(b) Doctrine of Ancient lights: Landowner acquired a negative prescriptive easement if
they had enjoyed sunlight for a specified period of time and could prevent the
adjoining landowner from obstructing access to light.
ii) Nuisance Doctrine Applied to Light
(1) Prah v. Maretti (p. 302): Prah uses solar panels to supply energy for home and D began to
build home that would block Prahs sunlight. HELD: owners rights are relative and cant
unreasonably impair use & enjoyment of others. P may show substantial harm at trial
(a) Reasons Ancient lights Doctrine was repudiated are no longer fully accepted:
(i) Sunlight only valued for aesthetic enjoyment, so loss was just annoyance
1. Sunlight is now a source of energy
(ii) Did not want to restrict land development
1. Need for easy rapid development is not as great today
(b) Therefore, court will view nuisance doctrine as flexible and the claim must be judged
using the reasonable use doctrine. Ct. does NOT find Fontainebleau persuasive.
(c) DISSENT: Repudiation of Ancient lights is still applicable. Solar energy used so
sparingly that is appears P is unusually sensitive.

LAND USE CONTROLS: PRIVATE

SERVITUDES
- A legal device that creates a right or obligation that runs with the land or with an interest in the land.
- A right/obligation runs w/ the land if it passes automatically to successive owner or occupier of the land.
- Law of equitable servitudes: relaxing some technical requirements and imposing land use restrictions
when it seems fair, even if those restrictions have no been formally created according to traditional legal
requirements. Courts of equity used injunctions, largely not used anymore.
- MODERNLY: Covenants are restrictions and Easements are affirmative rights.

10

Servitudes
Easements
Affirmative
easement

Express

Covenants

Negative
easement

Affirmative
Covenant

Negative
covenants

Implied
Prior use
Necessity

Estoppel

Restrictive
covenants

Equitable
servitudes

Prescriptive easement

LICENSE
Informal permission thats revocable at will, cant be transferred or willed. Thus not classified as servitude
Implied license: i.e. when you enter a store

EASEMENTS or right of way

I) Defined: is a nonpossessory right to use land in the possession of another. Its a type of servitude
where permission is intended to be permanent or irrevocable.
a) A right of way places an obligation on the owner of the land on which the road sits to allow the
neighbor to use the road for passage.
b) Burden of the servitude runs with the burdened or servient estate which is the land where the
owner has a continued obligation to allow another to use the road on his land.
c) Benefit of servitude runs with the benefited or dominant estate which is the land where
owners right of use is intended to pass to future owners of the land.
II) Types of Easements
a) Affirmative (authorizes holder to do a particular act on servient land) vs. Negative (entitles
dominant owner to prevent servient owner from doing particular act on servient land)
b) Easement Appurtenant vs. Easement in gross:
i) Easement Appurtenant: benefits easement holder in using the dominant land. Benefit attached
to the dominant land, not to particular owner of the land.
ii) Easement in gross: is personal to the holder
III) Categories of Affirmative Easements recognized today (Negative easements not really used anymore)
a) Express easements
b) Easements implied from prior existing use
c) Easements by necessity
d) Prescriptive easements
e) Irrevocable Licenses/ Easements by Estoppel

EXPRESS EASEMENTS:
Easement voluntarily created in deed, will or other written instrument and will arise either by grant or by
reservation. Easement by grant is when the grantor conveys an easement to another person. An easement
by reservation is when grantor conveys land to another, but retains or reserves an easement in that land.
a) Creation of Easement by Grant: Must comply with same Statute of Frauds requirements
applicable to all deeds. It must:
i) Be in writing
ii) Identify the grantor and grantee

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iii) Contain words manifesting an intention to create an easement

iv) Describe the affected land, and
v) Be signed by the grantor and recorded
b) Creation of Easement by Reservation is the same, except there is an issue about whether the
easement can be reserved for a third person.
i) Common law, could only be reserved in favor of grantor, but this is no longer the case!
I) Running with the land
a) Requirements for the Burden to Run with the Land
i) Easements run with the land only if:
(1) Easement is in writing
(2) The original grantor intended the easement to run with the land
(a) If ambiguous, intent can be implied
(3) Subsequent owners of the servient estate had notice of the easement at time of purchase.
(a) Three kinds of notice exist:
(i) Actual notice: If subsequent owners in fact know about existence
(ii) Inquiry notice: visible signs of use by non-owners (telephone poles, paths, utility
lines above ground). A Reasonable buyer would do further investigation to
discover if an easement exists
(iii)
Constructive notice: if easement recorded, then reasonable buyer shouldve
known
ii) Exceptions: Easements created by implication, necessity and estoppel generally are held to run
with the land if:
(1) they were intended to do so, and
(2) are reasonably necessary for the enjoyment of the dominant estate
b) Requirements for the Benefit to run with the land (Appurtenant v. In Gross)
i) Test: is to ascertain the intent of the grantor. Usually stated in the easement, but if intent is not
unambiguously stated, must look at surrounding circumstances and policies.
(1) Appurtenant is favored bc it promotes efficient land use
(2) In gross is found if the easement is one that would be useful separate from ownership of
neighboring land, such as a utility easement.
c) Interpreting Ambiguities:
i) Green v. Lupo (p. 350): Easement was used for motorcycle practice so servient estate blocked
the easement. Easement language state it was for ingress and egress for road and utilities
purposes but did not say if it was appurtenant or personal.
(1) HELD: When ambiguous (capable of more than one meaning) it is proper to admit parol
evidence. Evidence showed easement was for ingress, egress and such uses support
inference that it was intended to be an easement appurtenant. Courts prefer Appurtenant bc
it promotes efficient land use.
(2) Scope of use must also be reasonable, thus ct set equitable limitations to stop the cycles
d) Interpreting Scope of Ambiguous Easements:
i) Scope of easement contemplated by grantor:
(1) Kind: is the use of the kind contemplated?
(a) General rights of way usually may be used for any reasonable purpose
(b) Some courts limit it to specific purpose contemplated at time they were created
(c) Personal v. commercial can be considered
(2) Unreasonable burden: is the use so heavy that it is an unreasonable burden on servient
estate not contemplated by the grantor?
(a) i.e. Green v. Lupo, whether unreasonable depends on grantors intent
(3) Subdivided: can the easement can be subdivided (appurtenant easements) or apportioned
(easements in gross)?

12

(a) Appurtenant easement benefits the entire dominant estate and is divided among
subsequent owners if the dominant estate is divided Cox
(i) Changing location, widening (Cox), or extending the use of easements were all
traditionally forbidden but modernly courts find that if no additional burden then
the new use is usually fine.
(b) Easements in gross are apportionable depending on if exclusive or non-exclusive
(i) Non-exclusive easement or Common easement (grantor has reserved right to use
easement) are generally non-apportionally
(ii) Exclusive easement (grantor has no right to use) is generally apportionable
ii) Appurtenant Easements:
(1) Cox v. Glenbrook (p. 353) Cox has an appurtenant easement over Glenbrooks land, which
is a small road wide enough for one car, and wants to put a subdivision of homes on his
land. Cox wants to widen the road. Glenbrook says this is not within the easements scope
(a) Scope: Cox may maintain the road, but not widen it.
(b) Apportionable: It is an appurtenant easement thus it may be subdivided. It is for benefit
of entire dominant estate
(c) Unreasonable burden: jury may decide that an easement meant for a single family
home
iii) Easements in Gross:
(1) Henley v. Continental Cablevision (p. 358): Henleys predecessors granted right to
telephone co. to maintain wires. Telephone co. transferred easement to Continental. Henley
wants damages and injunction. This is an easement in gross so, the issue is whether
easement is exclusive. If exclusive (P has no right), then apportionable, if non-exclusive (P
reserved right) then non-apportionable.
(a) Why easement in gross? Utilities are useful separate from land & not particular benefit to
dominant estate bc dont really care where utility line is, everyone benefits from them
(b) HELD: P reserved no right for self, thus it is exclusive and apportionable, and court
must still do an undue burden analysis: where it finds that cable is still just using wires,
even if it was not the kind contemplated, actual physical difference is minimal.
II) Modifying and Terminating Easements
a) Easements last forever unless they are terminated by:
i) Agreement (release of easement by the holder)
ii) Their own terms
iii) Merger (when holder of servient estate becomes owner of dominant estate)
iv) Frustration of purpose: demonstrates easement no longer serves intended use
v) Abandonment (if it can be shown that by owner of easements conduct indicates INTENT to
abandon the easement)
vi) Adverse possession or prescription by owner of servient estate or by a third party.
vii) Marketable title acts: require easements, along with other encumbrances on property interests to
be re-recorded periodically (usu. 30-50 yrs) to be binding on future purchasers.
(1) Purpose is to balance individual property rights with marketablility of property.

IMPLIED EASEMENTS: Prescriptive, Estoppel, Prior Use, Necessity

I) Prescriptive Easements: similar to doctrine of adverse possession, with slightly lower standards;
except instead of acquiring title after conspicuous, long-term use, holder merely receives an easement
a) Requirements:
i) Actual use
ii) Open and notorious (visible and conspicuous enough to put owner on notice)
iii) Adverse (presumption of non-permissive use, minority view: presume permissive to advance
neighboring relations) and claim of right: user engages in prescriptive easement regardless
of wishes of landowner.

13

(1) Minority of courts require proof of claim of right to impose a state of mind.
iv) Continuous (must continue without significant interruption, but doesnt have to be constant)
v) For the statutory period (usually 10 yrs), can also use tacking doctrine (Community feed)
vi) Note: Actual use v. actual possession and Exclusivity not generally required
b) Community Feed Store v. Northeaster Culvert (p. 207) D had gravel driveway that P used as a
loading dock for many years, when D realized it was his he erected a barrier.
i) Prescriptive easement arises under claim of title (defective deed) or under claim of right
(arising from open, notorious and hostile use).
(1) Actual use: extent of use must not be proved with absolute precision, but only as to the
general outlines consistent with the patter of use throughout the prescriptive period.
(a) Slight deviations from the accustomed route will not defeat an easement, only
substantial changes which break continuity of the course of travel.
(2) Open and notorious use will be presumed non-permissive
(3) Statutory period: using the doctrine of tacking, P may add previous periods of use to its
own upon a showing that it has assumed the use of the easement directly from his
predecessor as a part of his receipt of the dominant estate.
c) Public use and Trees:
i) Public use is presumed permissive, unlike private use
ii) Most courts hold that an owner cannot obtain a prescriptive easement by allowing their trees
braches to remain over neighboring land.
II) Easements by Estoppel or Irrevocable Licenses : a court prevents a property owner from revoking
a license if the owner granted the licensee the right to invest in improving property r otherwise
induced the licensee to act in reasonable reliance on the license. The irrevocable license endures only
so long as necessary to allow the licensee to recover the value of his or her investment.
a) Three Required elements:
i) A license, typically for access purposes
(1) Express
(2) Implied (by conduct of the parties)
ii) The licenseees expenditure of substantial money or labor in good faith reliance; and
(1) Often consists of improvements to the servient land that directly benefit licensor such as
paving or repairing road
(2) Can also be construction of a home, barn or other improvement
(3) Reliance is more likely to be found reasonable if parties clearly intended to create a
permanent right of access
iii) The licensors knowledge or reasonable expectation that reliance will occur.
(1) Knew about liscensees plans or expected it and observed him using it for planned purpose
b) Policy rationale for doctrine of estoppel:
i) Equitable considerations bc licensee relied to his detriment
ii) Facilitates the productive use of land (the house or road repairs would be wasted)
c) Concerns leading court to construe doctrine narrowly
i) Discourages neighborly conduct
ii) Irrevocable license undermines policies served by the Statute of Frauds
d) Holbrook v. Taylor (p.321): Taylor was given permission (1. license) to use haul road, thus the use
of the easement was not established by prescription. However, Taylor used the roadway to build a
house on the adjacent property and repaired the road and widened it. Taylor relied on the use of the
road. (2. detrimental reliance) Also, Holbrook knew they were using the roadway to build a house
and knew of the improvements, (3. knowledge of reliance) thus the license could not be revoked.
III) Easements Implied from Prior Use: (Quasi-easements) Even if no express agreement to create an
easement, a court may infer such intent from the presence of an existing use and impose an easement. If
parties affirmatively express intent not to create an easement, the easement can not arise.

14

a) Easement can be created by grant or by reservation, but by reservation will usually demand a
heightened showing of necessity bc it is inconsistent with the words of grant in the deed executed
by the grantor.
b) 3 Required Elements (as set forth in Granite Properties v. Manns p. 333)
i) Severance of title to land held in common ownership
(1) Common ownership: it must be divided into two or more parcels; at least one parcel must
be transferred to a new owner and at lease one must be retained by the original owner.
ii) An existing, apparent and continued use when severance occurs
(1) Bc we want people to have notice
iii) Reasonable necessity for the use at time of severance
(1) Reasonably necessary can mean highly convenient or highly beneficial
c) Policy rationale:
i) Justified in terms of pary intent: if use was sufficiently apparent and parties were on notice that
the use would continue, then its fair to allow it to continue.
ii) Utilitarian view of promoting efficient land use
IV) Easements by Necessity: Easement arises without express agreement and usually involve road
easements to reach landlocked parcels. Unlike prior use easement, no prior use required!
a) 2 Required elements:
i) severance of title to land held in common ownership
ii) absolute necessity
b) 2 rules that minimize the burden on the servient owner
i) owner can choose location of road easement as long as the route is reasonable
ii) the easement endures only for so long as the necessity itself.
c) Finn v. Williams (p. 339): Williams owned a parcel of land, conveyed a tract to Finn. The only way
Finn can get to the highway is thru Williams north tract bc alternate routes had been closed. If he
hadnt gotten easement he wouldve had to walk.

REAL COVENANTS: a promise concerning the use of land that (1) benefits and burdens the
original parties and their successors to the promise and (2) is enforceable in an action for damages.
Affirmative covenants: promise to do something (like pay condominium fees) are less common
Negative covenants: requires a party to refrain from doing something
Burden: promisors duty to perform the promise
Benefit: promisees right to enforce the promise
I) Covenants v. Equitable servitudes
a) Covenants are enforceable at law (damages) and Equitable servitudes at equity (injunctions)
b) It is easier to meet the standard for enforcing a promise as an equitable servitude
i) Neither horizontal privity nor vertical privity is required (relaxed vertical privity)
II) Creation of Covenants: Express Agreements: will the burden and benefit run from the
original parties to the successors? In other words, will the covenant be enforceable?
a) Original Promisee vs. Promisors Successor: Requirements for Burden to Run with the Land
i) Covenant must be in writing
(1) Covenants are seen as an interest in land, and accordingly must comply with the
Statute of Frauds. Typically are set forth in the deed.
ii) The original parties must intend to bind their successors
(1) Intent found in express language of the covenant, i.e. successors, heirs, and assigns
(2) Intent can be inferred from: the nature of the restriction, the situation of the
parties, and the other circumstances surrounding the covenant.
iii) The covenant must touch and concern the land
(1) Promise must exercise direct influence on the occupation, use or enjoyment of the premises

15

(2) Easier with negative covenants than affirmative covenants

(3) Must both burden AND benefit. Covenants will often only be enforced if they
produce countervailing benefits to justify the burdens.
iv) Horizontal privity must exist (although now some dont require it bc easily circumvented
through straw transactions where you sell to lawyer who sells back with covenant)
(1) The original covenanting parties must have a special relationship
(a) Mutual privity: parties hold simultaneous interests in the same land (Landlord-tenant)
(b) Instantaneous privity: Successive interests; when a covenant is contained in deed of
sale it will satisfy privity requirement (grantor-grantee, when A sells or leases to B)
(2) No horizontal privity when covenants are not simultaneous with the conveyance
v) Vertical privity must exist (strict vertical privity)
(1) The relationship btwn the original covenanting party and his successors (A--C, B--D)
(2) Successor must scceed to the entire estate for vertical privity to exist, if acquires less than
the entire estate (i.e. a lease, life estate, tenancy for yrs), then no vertical privity arises.
vi) Successor must have notice
(1) Actual notice: if successor was actually told of the covenant.
(2) Inquiry notice: condition of property indicates property burdened by covenant
(a) Likely to be important only for affirmative easements, since cant see negative
(3) Constructive notice: if covenant was recorded
Benefit
side

Burden side

Horizontal privity

Original promisee (A)

Original promisor (B)

Vertical privity

Vertical privity
To see if
benefit runs

Successor to original promisee (C)

To see if
burden runs

Successor to original promisor (D)

b) Promisees Successor vs. Original Promisor: Requirements for Benefit to run:

i) Covenant must be in writing
ii) Original parties must intend to benefit successors
iii) Benefit must touch and concern land
iv) Vertical privity must be present, but is relaxed
(1) L and K enter covenant ban sale of alcohol on Ks land, L leases land to M, K sells
alcohol. Benefit of covenant runs to M, as Ls successor, even though M didnt get Ls
whole estate
v) NOTE: horizontal privity nor notice is required.
(1) The Lawn Covenant example: R, S and other homeowners have single family
residences and enter a written agreement that all properties shall have grass lawn
maintained in good condition to bind and benefit all successors. R sells home to T. S
removes all grass, T sues S for damages for breach of covenant. Burden runs to S bc
original party to K. Benefit runs to T bc in vertical privity with R and touches the land,
intends to benefit and in writing.

16

vi) Benefits of covenants are NOT held in gross (Whitinsville Plaza: Trust cant sue)
c) Promisees Successor vs. Promisors Successor: Do the Burden and Benefit Both Run?
i) The Lawn Covenant example revisited: R sells to T and S sells to U. U removes grass.
Can T recover damages? For T to prevail, both benefit and burden of covenant must run to
successors. Benefit runs to T (see above). Does burden run to U?
(1) Its in writing, manifests an intent to bind successors and satisfies touch and concern
(2) Vertical privity exists bc S sold to U
(3) No horizontal privity existed btwn original parties to covenant (R, S and neighbors) bc
they did not have mutual or successive interests over the same parcel.
(4) No Notice suggested? Should he have known bc uniform appearance of all grass lawns?
Maybe not since most houses have grass lawns anyways.
III) Anticompetitive Covenants
a) Supplementing Touch and Concern with Reasonableness when restriction not concrete
i) Davidson Bros. v. Katz & Sons (p. 367): P owned 2 grocery stores, sold one with a restrictive
covenant to not use as grocery a store. Ps business became profitable w/o the addl store in
competition. City then leased parcel from D to open a grocery store for the ppl of the town.
(1) Covenant was in writing, with intent to bind for 40 yrs, instantaneous horizontal privity
btwn P and D, vertical privity btwn D and city, successor (city) had actual notice and
constructive notice. Courts major issue with the anti-competitive covenant was whether
it touched and concerned the land and whether the court should also look to whether
the covenant was reasonable
(2) Touch and concern test is also FACTOR of reasonableness. It is met bc theres burden of
not allowed supermarket, & benefit bc Elizabeth store became profitable
Reasonableness test: addl test for governing commercial transactions in todays
commercial world. Inquiry is now: Is the covenant reasonable and hence enforceable?
(a) Factors:
(i) Is benefit proportional to burden? (touch and concern factor)
(ii) Viable purpose of original parties (not against public policy)?
(iii) Reasonable area, time, duration? Covenants that extend in perpetuity are often
unreasonable
(iv) Unreasonable restraint on trade or secures a monopoly for the covenantor?
(v) Changed circumstances now make covenant unreasonable?
(vi) Now against public policy?
(b) Outcome: Covenant not unreasonable, thus enforceable.
(i) Not in perpetuity, proportional benefit and burden, not unreasonable restraint bc
other available areas to have store
(c) Concurrence is against reasonable test but finds it satisfies touch and concern.
Damages would be appropriate
b) Slackening of Strict Vertical Privity: Traditional courts would allow equitable servitudes if no
strict vertical privity is present (thus an injunction) but not covenant (thus damages).
i) Whitinsville Plaza v. Kotseas (p. 376) Trust sells parcel to Kotseas with restrictive covenant
not to have pharmacy. If Kotseas has breached, then it would just be a breach of K case, but
Kotseas leases to CVS who put discount pharmacy. Trust sells to Plaza. Plaza sues Kotseas
and CVS to enforce covenant and seeks injunction and damages.
(1) HELD: Plaza CAN sue CVS even though not strict vertical privity, Plaza can also sue
Kotseas under a landlord theory (if Kotseas had sold to CVS, Plaza couldnt have). Trust
has no interest, bc sold to Plaza, so cant sue.
(2) There was actual and constructive notice and covenant was in writing
(3) Touch and Concern: burden the burdened land bc limit land use, benefit the benefited
land bc they enhance its market value

17

(4) Reasonableness: Reasonable covenant against competition will be enforced if it is

reasonably limited in time ans pace and consonant with public interest. Ct. said covenant
had to be sent to jury to determine if reasonable
IV) Implied Reciprocal Negative Servitudes in Residential Subdivisions:
a) Defined: Where a common grantor develops a tract of land for sale in a substantial number of lots
(a subdivision) and pursues a course of conduct which indicates that he intends a general scheme
or plan of development for the benefit of himself and the purchasers of the various lots by
inserting in numerous of the conveyances are substantially uniform restrictions, so that grantees
acquire by implication an equitable right to enforce similar restrictions against that part of the
tract retained by the grantor or subsequently sold without restrictions to a purchaser with actual or
constructive notice of the restrictions and covenants.
b) Two things to look for: (1) Evidence of a common plan and (2) Notice
i) Common Scheme or General Plan
(1) Can be shown by various factors:
(a) Presence of restrictions in all or most deeds to property in the area
(b) A recorded map showing the restrictions
(c) The presence of restrictions in the last deed (since the grantor retains no land left to
be benefited, the suggestion is that the intended beneficiaries of he promise are the
other lots in the neighborhood)
(d) Observance by owners of similar development of their land and conformity to written
restrictions
(e) Language stating that the covenants are intended to run with the land
(f) Recording of a declaration stating that the covenants are intended to be mutually
enforceable (this is most often used today!)
(2) Evidence tending to show absence of a common plan is that some deeds are unrestricted
and some restrictions are non-uniform.
(3) Common plan can be narrowly determined:
(a) Evans v. Pollock (p. 395) subdivision where lake front lots had restrictions but
hilltop didnt, Sup. Ct reversed App. Ct finding of no common plan, and determined
that there was a common plan as the lake front lots, but not to the hilltop.
(i) Common plan found because Lakefront lots had 75% voting rights, and hilltop
lots were not part of the vote.
ii) Notice: Problem of unrestricted lots
(1) Most courts hold that buyers of unrestricted lots are on constructive notice of covenants
in other deeds in the vicinity sold by the same grantor.
(2) If too many houses sold without restriction, there may be a finding of no common
scheme
(3) Conficting views:
(a) Sandborn v. McLean (p. 399): 53 of 91 lots had restrictive covenants, no restriction
on McLean lot. Ct. found they were on constructive notice of restrictions in deeds to
neighboring properties and on inquiry notice bc of the uniform residential character
of surrounding properties. Common plan bc majority of lots were restricted (even
tho a lot werent restricted).
(4) Riley v. Bear Creek (p. 399): Rileys bought first lot in residential subdivision and bc of a
mistake with declaration the restriction was not recorded until after purchase, thus not in
the deed. Ct found Rileys were not subject to restrictions bc no writing in deed limiting
use of land. Evidence of knowledge of grantors intent not admissible under parol
evidence rule.
c) Who Can Sue?
i) Owners in subdivision and developer who still has land interest can sue
(1) Bc all ppl are agreeing to be mutually benefited and burdened, hence reciprocal!

18

ii) Developers power to enforce covenants when he no longer owns any part of the parcel
(1) Courts may deny a suit brought by a developer of a subdivision because:
(a) of policies underlying the rule prohibiting the benefit of covenants to be held in gross
(b) Freeing current owners from dead hand control
(2) Some courts allow developers to to enforce covenants when the declaration allows this:
(a) at least where the owners have the power to amend the declaration and
(b) there is no showing that the developer retained unreasonable or imperious control
over artisitic decisions of homeowners long after having completed the subdivision.
(3) Restatement III: Allows covenants to be enforceable when the benefit is held in gross, but
requires a legitimate interest in the party who seeks enforcement.
iii) Enforcement by Homeowners Association
(1) Is the agent of property owners whose properties are reciprocally benefited and burdened
by servitudes can enforce those servitudes if the declaration gives them that power.
V) Interpreting Ambiguous Covenants
a) Courts traditionally interpreted ambiguous covenants in the manner that would be the least
burdensome to the free use of land
b) Today the touchstone appears to be the intent of the grantor
i) Intent must be shown by express language, but extrinsic evidence can be used if ambiguous
c) Residential vs. Commercial use:
i) Blevins v. Barry-Lawrence Country assoc. for Retarded Citizens (p. 406): Property had
covenant for residential uses only, & no building other than single or double family dwellings
(1) Residential uses: House for 8 retarded ppl and two house parents was found not to violate
the restriction for residential uses only.
(a) Residential purpose was defined as people who reside or dwell to make their homes
as distinguished from where they have their business.
(b) Operation of group home had residential characteristics:
(i) Non-profit, theory of establish a home with a surrogate family arrangement
(ii) Formal training is conducted elsewhere
(iii) Not ordinarily a temporary living arrangement
ii) Other courts found elderly home to be prohibited in a covenant that limited land to residential
and recreational use and limited buildings to single family residences and prohibited business
of any kind or nature.
d) Restrictions to single family dwellings: Structure vs. Use.
i) Structure: Blevin held that single or double family dwellings was intended to regulate
architectural style rather than the relationship among the persons occupying the structure.
Especially since family was undefined.
ii) Use: Some covenants and courts define family as:
(1) Nuclear or extended family (Shaver found 5 unrelated females living together did not
constitute a family bc unrelated by blood, marriage or adoption)
(2) a stable housing keeping unit of two or more persons who are emotionally attached to
each other and share a relationship that emulates traditional family values, promotes
mutual protection, support, happiness, physical well-being and intellectual growth
(3) Public policy limits: Several courts have held that although operation of group homes
violates covenants limiting property to single family dwellings, those covenants are
unenforceable bc they violate strong public policies prohibiting discrimination against
persons with disabilities.
(4) Antidiscrimination statutes: restrictive covenants that discriminate against persons with
disabilities may violate federal civil rights statutes.
VI) Modifying and Terminating Covenants
a) Changed Conditions Doctrine: Looks at the benefit to the dominant estate

19

i)

b)
c)

d)

VII)
a)

b)

Defined: covenants will not be enforced if conditions have changed so drastically inside the
neighborhood restricted by the covenants that enforcement will be of no substantial benefit to
the dominant estates.
ii) Test is stringent: relief is granted only if purpose of servitude can no longer by accomplished
(1) We want to respect freedom of contract.
iii) El Di v. Town of Bethany Beach (p.411): El Di has a 1900 restrictive covenant banning sale
of alcohol. Bethany beach was once a quiet, religious community, but is now very developed
and people brown bag their own alcohol. Ct applied to changed conditions doctrine bc
there had been a fundamental change in the intended character of the neighborhood.
(1) Holiday house applied for liquor license due to increase of brown bagging & to control
consumption by minors. Alcohol beverages available at nearby establishments. No longer
small church-affiliated neighborhood but summer resort visited by lots of tourists. Town
zoning also changed all around Holiday house. Pattern of alcohol use changed, too.
iv) Doctrine can also apply when substantial changes have occurred outside restricted subdivision
v) Rest III changes: extends doctrine to easements, modification instead of termination if it will
allow covenant to serve original purpose.
Relative Hardship Doctrine: focuses on the harm to the servient estate
i) Defined: A covenant will not be enforced if the harm caused by enforcement will be greater
by a considerable magnitude that the benefit to the owner of the dominant estate.
Other Equitable Defenses:
i) Unclean hands: P has violated the covenant himself
ii) Acquiescence: P has tolerated previous violations of the covenant by the servient estate owner
iii) Estoppel: Owner of dominant estate who orally represents to the owner of a servient estate that
she will not enforce the covenant may be estopped from asserting her interests in enforcing the
covenant if the owner of the servient estate changes his position in reliance on the oral stmt.
iv) Laches: If covenant has been ignored or breached for a substantial period of time (but less time
than necessary for prescriptive rights) the court may find that unexcused delay would make
covenant enforcement unconscionable due to reliance on it not being fulfilled.
v) Marketable title acts: statutes that terminate restrictive covenants if they are not re-recorded
after a specified period of time.
Other ways to terminate covenants:
i) Language in instrument: i.e. covenant will terminate with/in a stated # of years unless renewed
ii) Merger: benefit and burden under same ownership, covenant terminates
iii) Release: All Parties affected may agree to terminate
iv) Prescription: Open and notorious violation of the covenant without permission for the statutory
period may terminate covenant by operation of the statute of limitations.
Racially Discriminatory Covenants: covenant that limits the sale, lease, or occupancy of real
property to members of a particular race or excludes members of a particular race or races.
Discrimination in Housing
i) Shelley v. Kraemer (p. 433): neighbors wanted to enforce a racially restrictive covenant
against a black family to make them move out. 1st case making such covenants unenforceable
(1) In 1948, the Const. applies to States, not ppl, so the Sup. Ct. framed the issue by asserting
constitutional violations due to state interference. Finding, judicial action to enforce the
covenant constituted state action. Additionally, full coercive power of the state would be
needed to enforce the covenant, since the police would need to kick the family out.
(2) Controversial decision bc it subjects private contracts to constitutional restrictions, thus
precedential value is limited.
ii) Today no racially restrictive covenants can be allowed based on public policy, the fair
housing act, and the civil rights act.
Closing Public Areas in Face of Integration

20

i)

Evans v. Abney (p. 439): Senator Bacon in his will left his land to make a park for the
pleasure of white people, saying that the two races should not mix. Sup. Ct. in Evans v.
Newton found that the park could not continue to be operated on a racially discriminatory
basis. Georgia ct. then reverted the park back to the heirs of the senator bc his intention to
provide a park for whites only had become impossible to fulfill
(1) Petitioners sought to save the public park by using the cy pres doctrine to amend ther
terms of the will by striking the racial restrictions.
(a) Ct found that the doctrine was inapplicable bc the sole purpose was to separate
whites and blacks and that the Senators charitable intent was not general but
extended only to a segregated park for the benefit of white people. It was an essential
and indispensable part of his plan for Baconsfield.
(b) Sup ct. upheld bc loss was shared equally by whites and blacks.
(2) Dissent: public park may be const. closed down bc too expensive or superfluous or for no
reason at all, but cant be closed solely to avoid its duty to desegregate the facility.
(a) State action is present: state entered into arrangement to make it a public facility
(b) The next year ct. held a pool couldnt be closed after it was required to desegregate
c) Cy Pres Doctrine: Equitable doctrine where court reforms a written instrument with a gift to
charity as closely to the donors intention as possible, so that the gift does not fail. Its used when
the original charitable purpose cant be fulfilled.
VIII) Land Use Regulation and Exclusionary Zoning
a) A few states have interpreted their state constitutions to limit exclusionary zoning bc low and
moderate income families are thereby unlawfully excluded from the municipality
i) NAACP v. Mount Laurel (p. 899): Mt. Laurel had regulations requiring single-family
detached dwellings on sizeable lots, thereby excluding lower income ppl who are in desparate
need for housing. A major reason was to limit the amt of children to lower the tax rate.
(1) HELD: Responding to a disparate impact claim from the poor ppl in Mt. Laurel who
work in the industries, but cant afford to live there, the court found that every
municipality must presumptively make realistically possible an appropriate variety and
choice of housing.
(2) After: Continued monitoring necessary bc towns wouldnt fix regulations in good faith
IX) Remedies
a) Traditional: Equitable servitudes was for injunctions; Real Covenants was for damages
b) Modern: the court will apply remedies based on their appropriateness under the circumstances.

PRESENT ESTATES AND FUTURE INTERESTS

I) Definitions:
a) Present estate: is a legal interest that entitles its owner to the immediate possession of real or
personal property. i.e. A owns present estate in Greenacre, he may now live there and use it.
b) Future Interest is a non-possessory interest that will or may become a present estate in the future.
i.e. B has legal right to take possession of Green acre five years from now or upon As death.
II) Core Tensions and Policy concerns:
a) Battle between autonomy and free alienation: We want to respect property owners rights but
want to prevent re-emergence of feudal England
b) Conflict between generations; Concern about dead hand control
c) Too much concentrated ownership in particular groups is not wanted.
III) Overview and Goals
a) Spot and identify the present posessory interests
i) 6 freehold estates:

21

(1) fee simple absolute (FSA)

(2) fee simple determinable (FSD)
(3) fee simple subject to a condition subsequent (FSSCS)
(4) fee simple subject to executory limitation (FSSEL)
(5) life estate/defeasible life estate (LE)
(6) fee tail (FT)
b) Spot the future interests
i) In the grantor: Reversion, Right of Entry, Possibility of Reverter
ii) In a third party:
(1) Remainder
(a) Contingent
(b) Vested
(i) Absolutely, Subect to Open, Subject to Divestment
(2) Executory Interest
(a) Shifting
(b) Springing
c) Rules that affect the transfer of property

PRESENT ESTATES AND FUTURE INTERESTS

Freehold Estate

Life estate

Absolute
Subject to
Condition
Subsequent

Fee Simple

Fee tail

Defeasible

Determinable

Subject to
Executory
limitation

Present
Interests

Words used to
create interest

Future Interests in:

the grantor 3rd person

Fee simple
Absolute

to A
and her heirs

-----

------

Fee simple
Determinable (fsd)

so long as
while, until
during
unless

Possibility
of reverter

------

Fee simple
Subject to
Condition
Subsequent

provided that
on condition
but if

Right of
entry for
condition
broken

------

Fee simple
Subject to
Executory
Limitation

until (or
unless)
then to
but if, then
to ,

Life estate

for life

-----

Reversion

Executory
Interest

Remainder

I) Creation (thru deeds, wills and trusts)

II) Classification of Estates: Distinction among Freehold estates is premised on Duration
a) Fee simple: a freehold estate whose duration is potentially infinite
i) Creation example: O to A and his heirs (FSA)
(1) to A are words of purchase
(2) and his heirs are words of limitation to indicate the type of estate received (here it is a
Fee Simple Absolute, see chart for others)
(3) O A = Modern presumption for FSA (traditional presumption was for LE)

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ii) Absolute or Defeasible? How might the estate end?

(1) Absolute: Duration restricted only by standard limitation defining the category of estate
(a) Fee Simple Absolute: Most complete estate that is freely alienable & devisable)
(2) Defeasible: the estate is subject to a special provision included in the language of the
deed, trust or will that may end the estate prematurely if a particular future event occurs
(a) Two basic distinctions
(i) Who holds the future interest?
(ii) Is the defiance language expressed in words of time or words of condition?
(b) Future Interest in the Grantor
(i) Fee Simple Determinable: automatically expires at the time when a particular
event occurs, immediately giving the transferor legal right to possession.
1. Future interest: Possibility of Reverter (in the Grantor)
2. Words of duration
(ii) Fee Simple Subject to Condition Subsequent: a fee simple where the granting
words are followed by a limiting condition in favor of the transferor. It does NOT
automatically expire when triggering condition occurs, instead the future interest
holder has power to take affirmative action to end the estate. Without action, the
estate continues.
1. Future interest: Right of Entry (in the Grantor), must take affirmative action
2. Words of condition
(c) Future interest in a Third Party
(i) Fee Simple Subject to an Executory Limitation: fee simple estate that
automatically expires when a state event occurs (like FSD) but give the right to
possession to a transferee instead of to the grantor.
1. Future interest: Executory interest (interest that cuts the prior estate short)
i.e. O B and his heirs, but if C returns from France, then to C and her heirs
a. Shifting: simply one that divests another transferee (as above in C)
b. Springing: one that divests the transformer, following a gap in time
during which no other transferee has the right to possession. (below in C)
i.e. O C and heirs if C returns from France. To get possession, Cs
interest must cut short estate held by O, the transferor.
i. Known as a Gap in Seisen at common law
b) Life Estate: is a freehold estate whose duration is measured by the lives of one or more specified
persons. Also known as a Life Tenant
i) Creation: O to B for Bs life
(1) Pur Autre vie: O to B for the life of C
(2) Traditional presumption for OB was LE, but now is for FSA.
ii) Rights and Duties of Estate Owner
(1) Benefits:
(a) Life tenant entitled to use and enjoyment of the land, including any rents and profits
(b) Limited Transfer: Can sell LE interest, but only during measuring life.
(i) If person who buys the LE interest dies before the measuring life is up, at
common law the first person who comes on the property could have property
until measuring life ended. Basically a squatter!
(c) Duties:
(i) Duty to pay certain costs:
1. interest on mortgage (but principle usually paid by future grantee)
(ii) Duty to maintain status quo: (doesnt need to make better, but cant make worse)
1. Taxes, insurance
(iii) Duty not to commit waste

23

1. Affirmative waste: Acts of Commission: Voluntary acts that unreasonably

injures the affected land and significantly reduces value of the property.
2. Permissive waste: Acts of Omission: the failure of the possessor to exercise
reasonable care to protect the estate.
a. Moore v. Phillips (p. 553): old woman engaged in permissive waste by
failing to keep property up in reasonable repair. Estranged daughter
waited to sue after death, which bc it was so obvious that there was
waste, ct found okay that she didnt sue to aggravate old woman and take
funds away that she might need. Doctrine of Laches does not apply;
Daughter allowed to sue estate for damages.
3. Ameliorative waste: a change in land that may increase value of property but
changes the character of the land that grantor conveyed (i.e. converting forest
into farm).
iii) Future Interest
(1) In the grantor: Reversion
(2) In a third party: Remainder (future interest that is capable of becoming a possessory
estate upon the natural terminator of a prior estate created by the same instrument. It can
ONLY follow a Life estate or a Tenancy for years)
(a) Contingent (if one or both of the two following conditions are met)
(i) Condition precedent: If the remainder will take effect only upon the happening of
an event that is not certain to happen
(ii) Unascertained person: If the remainder will go to a person who cannot be
ascertained at the time of the initial conveyance (i.e. term of art like widow)
(b) Vested (any remainders to persons who are identifiable and no conditions precedent)
(i) Absolutely vested remainder: remainder not subject to change
(ii) Vested remainders subject to open: remainder that may be divided among persons
who will be born in the future (when there is already one child)
1. Rule of Convenience: Courts will close a class when the measuring life dies
so that children can take possession and will not have to share with any afterborn children
(iii) Vested remainder subject to divestment: Vested remainder that may be destroyed
by an event that occurs after the conveyance.
1. O to A for life, then to B, but if B has flunked out of school, back to O
a. No conditions precedent to taking the property, so its a vested remainder
2. Functional equivalence of VRSD and some contingent remainders:
a. O to A for life, then to B if she survives A, otherwise to C (contingent)
b. O to A for life then to B, but if B does not survive A, then to C (VRSD)
(3) Executory Interests: future interest in transferee that cuts the prior estate short.
(a) Shifting: simply divests another transferee i.e. O A for life, then to Bs children (B
has X) X = VRSO, A = LE, Unborn children = Shifting executory interest
(b) Springing: divests to transferor, following a gap in time during which no other
transferee has the right to possession. i.e. O to A for life then one year following As
death, to B. A= LE, B = springing exec. interest to a FSA.
c) Fee Tail: freehold estate whose duration was measured by the lives of the lineal descendants of a
designated person.
i) Creation: O to M and the heirs of his body
ii) Future interest: Reversion
iii) Disentailing the fee: O A and the heirs of his body. A sells to X (non lineal descendant),
the fee tail then turns into a FSA.
(1) Why do this? Bc fee tail could not be willed away.

24

iv) Has been largely abolished and will just turn into a FSA if found OR courts will compromise
and allow it to go for two generations
III) Interpretation of Ambiguous Conveyances:
a) Two important policies:
i) First look to intent of the Grantor, if unclear from the conveying language
ii) Then look to presumption against forfeitures: a presumption against finding a future interest
in the public policy interest of furthering free use and alienability of property
b) Wood v. Fremont County (p. 516): Wood conveyed property for the purpose and of making a
veterans hospital. When the grantees stopped running the hospital and put a private company,
Wood wanted the property back claiming for the purpose and in memorial to created a FSD
or a FSSCS.
i) HELD: The words do not give us language of duration (FSD) or of condition (FSSCS), thus
bc conditions tending to destroy estates are not favored in the law, they are strictly construed.
Therefore, found a FSA.
ii) Precatory language: tells us something about the situation, but of no legal significance. This
is what for the purpose is.
c) Adverse Possession: FSD v. FSSCS
i) Presumption for FSD or FSSCS?
(1) Courts prefer FSSCS. FSD automatically expires, but FSSCS, the owner must assert his
right, so if he does nothing, then the estate remains as is, so more likely nothing will
happen and the courts prefer this result.
(2) HOWEVER, Adverse possession complicates matters.
(a) FSD: Statute of limitations begins to run the moment the condition is violated, thus A
becomes a trespasser at that point and can eventually get possession adversely.
(b) FSSCS: A is not a trespasser until O asserts his right, and presumably once O asserted
his right, Adverse possession wouldnt work. If O never asserted his right, A would
live in fear that O some day might, and wouldnt invest in land as much. This result
seems unjust to courts.
(i) Doctrine of Laches: Laches is equitable doctrine where if O sits on his rights too
long, the court can equitably stop him from asserting his right if A relied on Os
inaction (meaning A thought the land was his and invested in it)
1. No statute of limitations of a specific amt of years, its about what is equitable
(ii) Modernly: courts just apply statute of limitations to FSSCS, too
(3) Note: you CAN adversely possess LE too, but only for the measuring life.
d) Fee Simple v. Life Estate
i) Edwards v. Bradley (p. 521): Edwards was given property, unsure if in FSSEL or LE with a
exec. interest or remainder in her six named children in FS. She argued it was a FS bc she
didnt violate the conditions and thus could freely dispose of farm as she chose.
(1) Generally a total limitation on alienation on a fee simple estate is void, but a conditional
limitation imposed upon a life estate is valid, bc the interest is smaller.
(2) Therefore the trial court held that it was a Life estate with remainder in her children
(3) Note: court looked to INTENT of grantor, even though this weighed against the
presumption against forfeitures (bc they chose a more restricted estate over alienability)
IV) Rules Affecting Transfer of Property
a) Destructibility of Contingent remainders:
i) Traditionally: Contingent remainder destroyed if it didnt vest before preceding LE ended
(1) O A for life, then to B when she reaches 21. If B is 19 when A dies, interest destroyed
(2) Modernly: If A dies, B gets a springing executory interest (property reverts to O til A is 21)
ii) Doctrine of Merger: O A for life, then to B. If A buys Bs future interest, then by the
doctrine of merger, A has a FSA.
(1) Can only apply if you have no intervening vested interest

25

(2) However if interest is not vested then O and A can still squish together with the doctrine
(a) OA for life then to B for life if B gets married, then to C
(i) A has LE, B has contingent remainder, C has a vested remainder absolute
(ii) A can buy Cs vested interest and they can push out B.
b) Doctrine of Worthier Title: O S for life, then to Os heirs was at common law invalid under
the doctrine of worthier title. Os attempt to create a remainder in his heirs is invalid, instead O
retains a reversion that becomes possessory when Ss life estate terminates.
i) Virtually obsolete except used as an evidentiary presumption to honor grantor intent. Some
jurisdictions presume that if O purports to covey a remainder to his own heirs, he does not
actually intend to convey anything to his heirs. In order to defeat the presumption, the heirs
must provide evidence of the grantors actual intention to benefit them.
c) The Rule in Shelleys case: O S for life, then to the heirs of S. At common law, such a
conveyance would effectively create a fee simple in S and nothing for Ss heirs.
d) Rule against the Creation of New Estates: A conveyance that does not fit within any of the
established categories must be interpreted to create the most closely analogous estate (keeping in
mind grantors intent and presumption against forfeitures)
i) Johnson v. Whiton (p. 528): and her heirs on her faithers side are words of limitation and
not words of purchase and they are not recognized because one cannot create a new kind of
inheritance. Policy? Want to prevent dead head control.
e) RULE AGAINST PERPETUITIES: A rule to prevent unreasonable restraints on alienation
i) Traditional defn: rule invalidates future interests that may vest too far into the future. Future
interests are invalid unless that are certain to vest or fail to vest within the lifetime of
someone who is alive at the creation of the interest or no later than 21 years after her death.
ii) Texaco Refining v. Samowitz (p. 545): Unrestricted option to purchase would be subject to
rule against perpetuities, but not to an option to renew the term of a real estate property lease.
The policy here is we want marketability, and if the person is already leasing it there would
be no unwanted disruption by renewal.
iii) See Powerpoint for more information
V) Restraints on Alienation
a) 3 types of total restraints on alienation of fee simple interests are uniformly held void and
unenforceable traditionally and modernly.
i) Disabling restraints: restraint directly forbids the owner from transferring her interest in the
property
ii) Promissory restraints: restraint is a covenant by which the grantee promises not to alienate his
interest in the property
iii) Forfeiture restraints: restraint provides for a future interest that will vest if the owner attempts
to transfer her interest in a property
b) Traditional (Formalism): restraints on fee simples held void, by calling it repugnant to the fee;
but restraints on lesser interests such as leaseholds or life estates were generally upheld.
c) Modern: views restraints on alienation as subject to a general test of reasonableness, but
traditional distinctions continue to matter (leasehold restraints upheld more than on fee simple)
i) Policy: free alienability of property fosters economic growth and commercial development
ii) Horse Pond v. Cormier (p. 451) A direct restraint on alienation where 100 % vote of
members was required before any parcel of land was alienated from the club. Club got a
good deal for a better property, but one member refused to vote for the deal.
(1) HELD: Trial ct used the rule of reasonable restraints the ct found restraint in deed invalid
bc unreasonable restriction to required 100 % vote and it was unlimited in duration
(2) Ct. app: agreed with reasonable restraints determination, however such a rule does not
apply in the case of a gift to a charitable corp. So must go back to determine if a charity.

26

d) Partial restraints on alienation of fee simple interests are sometimes upheld if they last for a
limited time or limit the transfer of property to certain persons, but do not constitute wholesale
prohibitions on transfer. There may also be a legitimate purpose that justifies limit on alienability
e) Consent to Sell Provisions will be upheld if they require owner/association to act reasonably
i) Grantor Consent Clauses: covenants that require owners to obtain the consent of the grantor
or developer of the subdivision are usually struck down by the courts as unreasonable
restraints on alienation.
(1) Policy reasons: Traditional rule prohibiting enforcement of a covenant when benefit is
held in gross bc want to prevent dead hand control. So, no consent to sell once the last
unit is sold.
(2) Riste: direct restraint on alienation that prohibits grantee from conveying land without
approval of grantor which was a bible camp. A disabling restraint has a presumption of
invalidity & its also invalid under public policy grounds due to discrimination of creed.
(3) Serio: Ct found that the restraint on sale without consent of the grantor was repugnant to
the fee. Although limited in duration to five years, the ct uses formalist principles rather
than looking at reasonableness.
(a) Dissent: reasonable restriction so that early buyers had assurance that they would be
able to buy in a certain kind of neighborhood
ii) Consent of the Association: restrictions on a unit owners right to transfer property are
recognized as a valid means of insuring the associations ability to control the composition of
the condominium as a whole. Held valid more often than consent of grantor.
(1) However, will be invalid if it violates some external public policy or constitutional right.
(2) Aquarian foundation v. Sholom House (p. 455): condo board that could reject
perpetually any unit owners prospective purchaser for any or no reason is an absolute
restraint and could only be saved from invalidity if the association has a corresponding
obligation to purchase the property from the unit owner at fair market value.
(a) HELD: the requirement that the unit owner breach the contract before the board
would buy the condo at fair market value makes the restraint invalid.
f) Rights of First Refusal or Preemptive Rights: Covenants giving grantors/developers or
homeowners associations power in the form of preemptive rights are usually upheld.
i) Preemptive rights ensure that the owner can transfer the unit for its fair market value to the
association or its members or require the holder of the preemptive right to match any bona
fide offers made by a third party.
ii) Rights of first refusal limit the current owners power to determine to whom the property
will be transferred and if they do not limit discretion of the association, they are likely to be
struck down.
(1) Test: two parts
(a) Is the reason for exercising right of first refusal rationally related to protection,
preservation or proper operation of property and to the purposes of the association as
set forth in its governing instruments?
(b) Is the power exercised in a fair and nondiscriminatory manner?
iii) Wolinski v. Kadison (p. 458): Board breached its fiduciary relationship to condo owner who
wanted to sell her condo by not going through the procedures in its governing instruments.

CONCURRENT OWNERSHIP AND FAMILY PROPERTY

I) Introduction:
a) Common Ownership: property rights that are shared, so that more than one person may have the
right to control the same resource.
i) Residential property: Tenancy in common, Joint tenancy and Tenancy by the entirety
ii) Marriage: community property

27

iii) Business: partnership

b) Concurrent rights: each person has concurrent right to possess the entire parcel. They must agree
how the property will be used.
II) Tenancy in Common: each tenant, no matter how small her fractional interest, has the right to
possess the entire parcel, unless all cotenants agree otherwise by contract called unity of possession
a) Creation: O conveys/devises Blackacre to A and B as tenants in common, with undivided
interest in A, and undivided interest in B.
i) Conveyance to two unmarried ppl has a Modern presumption for Tenancy in Common
ii) No requirements for same time, title or interest (can get at different times with different
interests)
b) Transferability: A tenant in common has the right to sell, mortgage, lease or otherwise transfer all
or part of his interest without the consent of other co-tenants.
c) No right of survivorship, so co-tenant may devise his interest in a will.
III) Joint Tenancy: Each tenant has right to possess entire parcel but, co-tenants have right of survivorship
and four unities are required to create a valid joint tenancy (otherwise presume tenancy in common)
a) Creation: O conveys/devises Blackacre to A and B as joint tenants.
i) Unity of time: interest of each joint tenant must be created at same moment in time
ii) Unity of title: all joint tenants must acquire title by the same instrument or title
iii) Unity of interest: all joint tenants must possess equal fractional undivided interests
iv) Unity of possession: all joint tenants must have right to possess the entire parcel.
b) Right of Survivorship: When a joint tenant dies, her property interest is immediately transferred
to the remaining joint tenants in equal shares. Thus, A cannot devise her interest in a will.
c) Severance: Right of survivorship can be destroyed when a joint tenant transfers her property
interest by selling it to someone outside the joint tenancy. Thus if A sells interest to C, it destroys
Bs right of survivorship, so B and C are now tenants in common.
i) Joint tenant who wants to will her interest can do a straw conveyance with a lawyer.
ii) Severance only occurs btwn selling owner and remaining owners. It does not change the
relations of the remaining owners among themselves
(1) A, B, C are joint tenants. A sells to D her 1/3 interest. D dies, 1/3 interest goes to heirs,
but if B dies, his interest goes to C as the surviving joint tenant, who will then own a 2/3
interest as a tenant in common with D.
d) Issues surrounding Death in the Joint tenancy
i) Tehet v. Boswell (p. 581): Joint tenant leased his interest to a third person for a term of years
and dies during that term. The lease does not sever the joint tenancy but expires upon the
death of the lessor joint tenant.
(1) If he had SOLD the interest it would have severed the joint tenancy, but without a
showing of intent to sever, there is no severance with a lease.
(2) To allow the lease to continue after lessor dies would mean there was no right to
survivorship. So the lease must end.
ii) Joint tenants who die at the same time, will be treated as tenants in common and their heirs
will receive their interests.
IV) Tenancy by the Entirety: Abolished in many states, where law views a husband and wife as a single
unit controlled by the husband (later controlled by both as a unit).
a) Creation: Any conveyance to married couple creates presumption of tenancy by the entirety in
some states. Some require intent to create a tenancy by the entirement.
i) Most jurisdictions also require five unities: time, title, interest, possession, and marriage.
b) Right of survivorship: Much more durable bc can be terminated only by divorce, death or
agreement btwn spouses. Spouse cannot unilaterally break unities to create tenancy in common.
c) Transferability: neither spouse possesses a separate share, but the couple as a unit owns the entire
estate, so consent of both spouses required to convey the estate. (Married Womens Property Act
eliminated husbands right of exclusive control)

28

d) Rights of creditors: Is property held in tenancy by the entirety shielded from creditors claims
against one of the spouses?
i) Sawada v. Endo (p. 587): Endo liable for injuries to Sawada in car accident. Sawadas sued to
cancel a fraudulent conveyance in order to collect on a personal injury judgment. Endo
asserted that at the time of the convyeane, the property was held in tenancy by the entirety
(by Endo and wife) and thus not subject to execution by creditors.
(1) HELD: Court agreed with Endo that by the Married Womens Property Acts converted
the tenancy by the entirety into a unity of equals, neither spouse owned a separate
interest that could be conveyed to, or reached by, creditors.
(2) Rationale: Protection of family unit and fair to creditors bc should never have relied on
asset in the first place
(3) Criticism: Does this result further gender equality as intended by legislature? No. Family
asset protection rationale is overbroad, and it underestimates impact on creditors.
V) Benefits and Burdens of Co-ownership: default presumption is that theyre shared (which can be
modified by contract)
a) Benefits:
i) Right to Possession: kind of a legal fiction bc multiple cotenants cannot each utilize the entire
property simultaneously
(1) Baseline presumption: A, B and C are co-tenants, A holds sole possession, A is not
required to pay B and C rent
(2) Exception: Ouster, which occurs when a cotenant in possession refuses the request of
another cotenant to share possession of the land.
(a) Constructive Ouster: the property by its very nature is incapable of accommodating
more than one of the tenants at a time.
(i) Olivas (p. 576): Husband said he was constructively ousted during divorce
proceedings & wants $ back in rent. Ct. said not constructively ousted bc he
wasnt not pushed out, but rather pulled by his new girlfriend.
1. Ousting didnt have to do with impossibility but hostility btwn the co-tenants
ii) Right to Rents and Profits: each cotenant is entitled to a pro rata share of rents received from
a third person for use of the land.
(1) If one co-tenant refuses to pay, the others may bring an accounting action against him to
force payment.
(2) This right does not give right to veto: you can either accept third party lease and bear the
benefits (and burdens) or you can sue for partition.
b) Burdens:
i) Co-tenants must pay their proportional share of basic expenses: mortgage, tax, insurance
ii) Major repairs: No duty to share bc there may be business disagreement
iii) Maintenance and basic repairs: typically allocated according to fractional interest, but is
modified in some jurisdictions. Especially if only one person is in possession.
VI) Conflicts over Transfers by One Co-owner
a) Terminating the Co-tenancy
i) By contract (outside the law)
ii) Legal Remedies:
(1) Accounting (to get rents owed from third parties)
(2) Partition (2 types)
(a) Partition in kind: Physical partition dividing each share so that each co-tenant owns
only that piece
(b) Partition in sale: Court order for property to be sold and each party gets the
corresponding interest in profit.
(i) Some Courts will take in factors such as money put into the property when
deciding how much each party will receive

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iii) Carr v. Deking (p. 580): son and father owned land as tenants in common and leased it to
crop share tenant. Son wanted to change crop share to cash rent. Tenant went to father who
entered into 10 yr crop share lease. Son sued to invalidate lease.
(1) Held: Son couldnt invalidate lease. If problems not resolved, then partition is the correct
remedy. Until partition, father could farm land under the lease. Son can either accept lease
(along with benefits & burdens) or partition. Most likely physical partition bc farm land
b) Death in Joint tenancy v. Tenancy in Common
i) Joint tenancy: Recall Tenhet where lease was destroyed bc took away right of survivorship
ii) Tenancy in common: Kresha: husband who conveyed interest in 6 yr lease to son was not
destroyed after divorce where wife received the whole property. Ct. found that the lease came
as an encumberance on the property that wasnt fraudulent or unreasonable in duration.
(1) Difference may be due to the fact that there is no right of survivorship which would
destroy the essence of the tenancy (as in Tenhet)
VII)
Property and Death:
a) Wills and Inheritance: Parents can disinherit children but most provide protection for surviving
spouses (spouse can reject will and recover in statutory forced share

MARITAL AND NON-MARITAL PROPERTY

b) Intestacy Statute: decedents heirs as specified by state if one dies w/o a valid will. (no heirs, then
property will escheat to the state.
I) History
a) Common law definitions
i) Feme sole: enjoyed same rights to hold and manage property and enter contracts as men
ii) Feme Covert: status of woman described by institution of coverture. Where the husband and
wife were treated as one person in the eyes of the law, and husband had power to convey
wifes property w/o her consent.
iii) Wifes Dower interest: consisted of life estate in one third of freehold lands after husbands
death, which could not be alienated or used to satisfy husbands debts.
iv) Husbands Curtesy interest: life estate in all the lands owned by wife, which only sprang if
the couple had a child capable of inheriting the property.
b) Womens Property Acts (19th century): Abolished coverture and removed economic disabilities,
thus women could contract, hold and manage property, sue and be sued. Wifes earnings were
separate property could not be sold without her consent.
c) NO FAULT DIVORCE: 1970s, courts no longer look at fault much bc courts dont want to get
involved in the relationship (she drove me to adultery, etc)
II) Separate Property
a) During Marriage:
i) Spouses own property separately, except to the extend they choose to share it or mingle it
with their spouses property.
(1) Each spouse owns whatever property he or she possessed before the marriage (house, car,
stock, bank account) and individually liable for prior debts
(2) Each spouse owns separately property earned during the marriage, including wages and
dividends, also owned separately.
ii) Legal duty to support each other may require sharing of property earned during marriage
(1) Rarely outside divorce, but could get court order for maintenance.
b) Divorce
i) Rights upon divorce Equitable Distribution:

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(1) Court distributes property btwn wife and husband based on equitable principles after
considering a variety of criteria. Contextual factors are very important. Family court has
a lot of leeway (less consistent than community property states)
(2) Factors:
(a) NEED (support for necessities, including child support)
(i) Age and Health of each spouse
(ii) Special needs of each spouse
(iii) Occupation and Vocational skills of each spouse
(iv) Opportunity of each spouse for future employment
(b) STATUS (maintaining lifestayle shared during the marriage)
(i) Income and property of each spouse at the time marriage
(ii) Duration of the marriage
(iii) Income and Property of each spouse when the divorce action begins
(c) REHABILITATION (support sufficient to allow one spouse to attain marketable
skills such that support will no longer be needed)
(i) As compared to ALIMONY which was routinely awarded to wives who were
though to be dependent on their husbands for income, but with huge increase of
women in workforce and advent of no fault divorce alimony is exceptional.
(ii) Rehabilitative maintenance: provide money for spouse until s/he can support self
(d) CONTRIBUTION (treating marriage as a partnership and dividing the assets jointly
earned from the enterprise)
(e) FAULT (1/4 includes, 1/4 explicitly excludes marital misconduct bc no fault
divorce, courts dont want to get involved)
(3) Other factors:
(a) Antenuptial agreements
(b) Dissipation of assets by each spouse during the marriage
(4) In re Marriage of King (p. 71) Montana Equitable Distribution Statute gives several
factors for courts to divide property. Divorce case where biggest asset is family home. W
was awarded custody and H was professional gambler. Court awarded wife the family
residence bc substantial hardship would be imposed upon children if parties required to
vacate home if it is ordered sold. Court gave her the house in lieu of his child support.
(a) Affirmed bc property and support are not totally irrelevant and this was the best
outcome in the circumstances.
ii) Marital Property Defined:
(1) Three Approaches defining property subject to equitable distribution
(a) All property owned by either spouse, acquired at any time and from any source
(b) Limits scope of marital property to property acquired during marriage by either
spouse from any source (including property by gift, bequest, devise, or descent)
(c) More limited where applied only to property acquired from income earned during the
marriage, which is essentially the same defn followed in community property states.
(2) Educational Degrees/Professional Licenses
(a) New York/Minority approach: Marital property
(i) OBrien v. OBrien (p. 599): Wife helped husband get medical degree by moving
around with him, unable to get a permanent certification to teach, and earning
75% of the income. They divorced when he was in surgery residency, and all
they had is the degree.
1. Issue: Is a medical degree property? It doesnt have all the sticks, it is not
alienable.
2. HELD: A license is marital property which may be represented by direct or
indirect contributions of non-title holding spouse and is subject to equitable

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distribution, and even though not alienable, it has an economic value that can
be distributed to the wife.
a. NY statute says that all property regardless of the form in which title is
held is subject to equitable distribution and that the career or career
potential can be a factor in considering equitable distrubition
b. Valuation: Court takes contribution approach rather than rehabilitative
maintenance or reimbursement for direct financial contributions bc
it should be an economic partnership where she can get a return on her
investment, not just the $ she put in.
c. Concurrence: have forced him into surgery, bc thats how it was valued
(b) Majority approach: Not marital property bc not traditional concept of property
(i) Mahoney v. Mahoney (p. 605): rejected graduate degrees constitute property bc
1. graduate degrees not exchangeable or inheritable or transferable in any way
2. they are cumulative product of many years of hard work and cant be
acquired by mere expenditure of money
3. value is not readily determined bc valuing a professional degree in the hands
of particular individual at the start of his career would be guess work
4. Unlike alimony, awards of property are final and unmodifiable
(ii) Most courts will allow:
1. Reimbursement for payments made to support degree earning spouse
2. Rehabilitation payment to enable supporting spouse to earn similar degree
3. SOME courts allow Distribution of Enhanced Earning Potential, court looks
at opportunity costs lost by supporting spouse or at present value of student
spouses enhanced earning capacity.
c) Rights upon Death
i) Elective Share (has replaced dower and curtesy in almost all common law property jurisdictions)
(1) Defined: Surviving spouse may elect to either
(a) Abide by the terms of the decedent spouses will or
(b) Take a share (normally 1/2 or 1/3) of all property the decedent owned at death
(2) Major Loophole: the inter vivos gift to a third party: H gives all assets to C and leaves W
penniless when he dies a week later.
(a) Some states have illusory transfer standard which allows surving spouse an elective
share in property over which decedent retained significant control or courts use the
scienter standard.
d) Debts
i) Many states will give surviving spouse a life estate before creditors can get at shared home
(1) Not for properties over a certain value
III) Community property: more consistent results
a) Marriage as a partnership
i) Defined: Earnings of either spouse during marriage and all property acquired with those
earnings are deemed community property. Each spouse owns undivided interest in all
community property.
ii) Not all property is community property
(1) A spouses property acquired before marriage or acquired during marriage thru gift,
devise, bequest or descent is deemed separate property.
iii) Spouses may alter or transmute the character of property agreement
b) Co-mingling of Community and Separate Property
i) i.e. putting gift money in joint bank account or using separate property for down-payment of
house but community property to pay for mortgage

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ii) Example: 150 K Community property, 50 K W property for 200 K house = 25% interest in W
as separate property and 75% community property.
iii) More difficult: 50 K downpayment by W before marriage, 150 K in mortgage payments using
Hs earnings after marriage.
(1) Most states follow a pro rata approach which reaches same as previous result (25/75)
(2) Some states use an inception of right approach character of asset is determined when
the transaction begins. Bc W bough house before marriage, it would be her separate prop
(3) Few states employ time of vesting rule that determines character of asset when title is
transferred; home would also be Ws separate property bc received title before marriage.
c) Income from Separate property: Stocks
i) If one spouse works and the other has stock as SP, then income on stock would remain SP
ii) If one spouse stays home with kids and other watches stock portfolio, then the stock would be
considered income and could be considered CP
d) Rights During Marriage
i) Husband and wife have equal rights to use, manage, and otherwise control community
property. Either spouse can sell, but some states requires both spouses consent.
e) Rights upon Divorce
(1) Community property is divided, separate property is retained by owner spouse
(2) Some statutes have equitable division provisions (CAL)
f) Rights upon Death
(1) Spouse may transfer by will of community property & all of his or her separate prop.
g) Problem of Migrating Couples
i) General rule is to characterize property by the state in which it was acquired.
IV) All of this can be modified by contract in both separate property and community property states
a) Uniform Pre-Marital Agreement Act sets standards for what prenuptial agreements will be
reasonable and unconscionable.
V) Property Rights of Unmarried Couples:
a) Male-Female couples: Three Approaches
i) Traditional approach denies any remedy and is supported by 3 themes (Hewitt v. Hewitt:)
(1) Repeal of common law marriage, means legislation wanted to confine scope of marital
property rights to ceremonial marriages.
(2) Any Cohabitation agreement is effectively a contract for prostitution, founded upon the
illegal and immoral consideration of sexual services
(3) Some courts raise broader concern that unmarried cohabitation tends to discourage
marriage, and thus weakens our family-based society
ii) Marvin v. Marvin (Cal) allows enforcement of a written or oral agreement btwn parties to
provide support in exchange for services.
(1) Can agreement be inferred from conduct?
(2) Equitable remedies can also be employed such as constructive trust or quantum meruit
iii) Relationship akin to Partnership Property distribution even though the parties were not
legally married and did not enter any explicit agreement pertaining to support or property
rights. Courts may adopt this approach based on finding an implicit agreement or by
imposing a constructive trust to avoid unjust enrichment.
(1) Watts v. Watts (p. 608): 12 year relationship, 2 children, acted married, joint bank
accounts. When relationship ended she got nothing. Ct allowed claim on 3 theories:
(a) Implied contract
(i) Consideration (not sexual) but thru services & wages for working in business
(ii) Inequitable for him to retain all assets since he is not any less guilty than she is.
(iii) If anything, ruling otherwise would de-incentivize marriage
(b) Unjust enrichment:
(i) Elements:

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1. Benefit conferred on D by P
2. Appreciation or knowledge by D of the benefit
a. Common sense says we have that here
3. Acceptance or retention of benefit by D so that it is inequitable for him to
retain the benefit.
(ii) Constructive Trust to prevent unjust enrichment
1. Showing of an abuse of fiduciary relationship
(c) Doctrine of Partition: All personal property be divided as a joint venture partnership
bc they bought the property together
b) Same-Sex Partners
i) Marriage: Most states find unconst. And Defense of Marriage act (DOMA) allows states to
give no effect to gay marriages from other states bc federal govt doesnt recognize it.
(1) What about full faith and credit clause
ii) Upon Break up: Constructive trust doctrine to prevent unjust enrichment (just like Watts)
iii) Upon Death: Dying without will, court in Vasquez allowed decedents partner to prove
existence of implied partnership based on relationship w/ decedent, and authorized state
courts to impose constructive or equitable trust

LEASEHOLDS (nonfreehold estates)

I) Leasehold estate: a legal interest that entitles the tenant to immediate possession of designated land,
either for a fixed period of time or for as long as the tenant and landlord desire. Leases longer than
one year must comply with statute of frauds.
a) Residential: property for purpose of establishing a home
i) Cts more likely to adopt remedial doctrine bc more likely to have unequal bargaining power
b) Commerical: operation of business (profit, non-profit)
i) Sufficient bargaining power and expertise to shape contracts = less remedial judiciary
c) Future interest: in landlord is a reversion, in a third party is a remainder.
II) Categories of Tenancies:
a) Term of years:
i) A tenancy that lasts for a specified period of time determined by the parties.
ii) Term of years ends automatically at the agreed upon time or earlier by happening of some
event or condition state in the lease agreement.
(1) Death of either party does not terminate the tenancy.
(2) Landlord cannot evict unless some material breach (such as the covenant to pay rent)
b) Periodic tenancies:
i) Renew automatically at specified periods unless either the LL or tenant choose to end the
relationship.
ii) Month to Month tenancies: renews each month, until one party receives notice from the other
to end the tenancy. By statute, One-month notice required to end month to month tenancy.
iii) Death of either LL or tenant does not terminate the tenancy, but of course the heirs can
choose to end it with one months notice
c) Tenancy at will
i) Similar to periodic, but can be ended by either party with no notice.
ii) Many states have effectively abolished by requiring a months notice (creating month-month)
iii) Death of either LL or tenant DOES terminate a tenancy at will
d) Tenancy at Sufferance (holdover tenant)
i) A tenant rightfully in possession who wrongfully stays after the leasehold has terminated.
Differs from a trespasser, who never had right to posses.
ii) Legal procedure for evicting holdover v. trespasser
(1) Trespasser: landlord may use self help or call police to do so

34

(2) Holdover tenant: requires an eviction proceeding and a landlord who accepts rent checks
from a holdover tenant may be held to have agreed to a new tenancy calculated by the
rental payment schedule (monthly checks = month to month tenancy)
III) Regulation of Landlord-Tenant Relationships
a) Procedural regulations: formal requirements for creating and terminating the relationship
i) Creation: i.e. leases over a yr must be in writing
ii) Termination: usually requires notice and an eviction proceeding
(1) Will often provide for expedited court proceedings (Summary Process)
b) Substantive regulations: define parties obligations to each other.
i) Housing codes specify minimum requirements for apartment conditions (heat, toilet, kitchen,
pest control)
ii) Implied obligations: i.e. implied covenant of quiet enjoyment
(1) Some are waivable
iii) Regulations may allow for tenant to withhold rent when LL breaches implied or explicit
substantive regulations.
IV) Conflicts About Rent
a) Landlords rights
i) To receive agreed-upon rent, to have premises intact and not damaged, subject to normal
wear and tear (tenants duty not to commit waste), to receive reversion at end of lease term
b) Lawsuits against tenants
i) Usually instituted bc tenant has failed to pay rent, or sometimes if tenant has damaged apt,
interfered with quiet enjoyment of neighbors, kept pets or sublet against covenant
c) Landlords Remedies when Tenant Breaches and Refuses to Leave
i) Possession and back rent
(1) Tenants can respond by asserting defenses such as rights based on implied warranty of
habitability, retaliatory eviction, unlawful discrimination.
ii) Holdover tenant and renewal of tenancy
(1) Some states say acceptance of check necessarily creates a new tenancy
(2) Strange minority rule: where LL gives right of possession to new tenant, who then has the
responsibility to remove the holdover tenant
iii) Self-help: no longer allowed
iv) Summary process:
(1) fast judicial determination of LLs claim of a right to regain possession of his property. It
will often limit the issues that can be addressed and used to prevent tenants from raising
defenses, but in the past few years summary process has not been summary.
(2) Can assert defense of implied warranty of habitability
d) Landlords Remedies when the Tenant Breaches and Leaves
i) Accept the tenants surrender
(1) LL agrees that tenant will not be legally obligated to pay the future rent
(2) LL can still sue for back rent owed and damages for breach of lease (which is different
from future rent), and can include advertising and search costs and lost rent in meantime
ii) Re-let on the tenants account
(1) LL may refuse to accept surrender, but may after notice to the tenant, actively look for a
new tenant and re-let the apartment on the tenants account. When new tenant found, LL
may sue the former tenant for difference btwn the old rental price and new rent received
from new lessee if new rent is lower.
(a) Rent must be reasonable, LL cant re-let to sister for $5 a month.
(b) It matters whether LL has accepted the surrender or not bc if new tenant moves out
before the original lease is up, if LL has surrendered, he cant sue for remaining amt.
but if LL has not accepted surrender, then old tenant has duty to reimburse for
remaining time on the lease.

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iii) Wait and Sue for rent at end of lease term vs. mitigation of damages
(1) Traditional rule allowed LL to do nothing, wait for end of lease term and then sue tenant
for remaining unpaid back rent.
(2) Modern rule: most states reject traditional rule in favor of the contract doctrine of
mitigation of damages.
(a) Policy: leases are starting to look more like contracts than transfers in property
(b) Sommer v. Kridel (p. 663): Tenants sent letter to LL explaining that they would not
be able to be bound by the lease. LL did nothing, and even didnt re-let when
someone showed interest in leasing (didnt even have to do any work!)
(i) HELD: LL is required to attempt to mitigate damages with reasonable diligence
and the extent of damages remaining is assessable to the tenant.
(3) Duty to mitigate is not an enforceable obligation, but a rule of recovery that LL can only
recover the difference btwn market rent & contract rent plus cost of finding a new tenant
(a) Burden of proof: Sommer found burden of persuasion on LL that he tried to mitigate
bc of the tenants inability to do so.
(b) Liquidated damages: some leases have acceleration clauses making the rest of the
rent due immediately if tenant breaches lease in a material way. It will be
unenforceable if the court sees the amt owed as unconscionable or as a penalty.
V) Conflicts about Occupancy
a) Landlords Duty to Deliver Possession:
i) Majority rule requires LL to deliver possession of rented premises to tenant at beginning of
leasehold. If prior tenant wrongfully holds over, LL has obligation to remove prior tenant by
instituting conviction proceedings or convincing him to leave.
ii) Minority rule: LL only has duty to deliver the right to possession but no duty to deliver actual
possession. Thus it is new tenants responsibility to evict holdover by bringing ejectment,
etc. New tenant must still pay rent, so new tenants remedy is to get damages from holdover.
b) Tenants Right to Assign or Sublet
i) Assignment: Conveys all the tenants remaining property interests without retaining any
future rights to enter the property
(1) Traditionally, using privity of estate, the assignee is directly liable to the landlord (not
privity of contract since LL and assignee reached no agreement)
(2) Thus LL has right to subtenant to enforce any of the covenants under the original lease
ii) Sublease: the tenant retains some future interest or right to control property in the future.
(1) Sublease occurs when:
(a) Subtenant only subleases for portion of lease
(b) Tenant retains right of entry if subtenant violates terms of sublease agreement.
(2) Lease covenants do not run with the land, so under real covenants LL has no right to sue
the subtenant to enforce any of the covenants in the original lease. (unless subtenant
promises to pay LL rent, in which case the LL is a third-party beneficiary of the K made
between the sub-tenant and the tenant).
(a) LL may be able to get an equitable remedy from equitable servitudes, but some
courts dont allow it the injunction just resembles damages
(3) Landlord can sue the original tenant bc of the remaining contractual relationship, and
then tenant would sue subtenant or bring them in as a third party defendant
iii) Three Different Situations Determining whether Tenant can Assign or Sublet:
(1) When the Lease is Silent: Tenant can transfer he leasehold
(2) When the Lease Requires the Landlords Consent: no subletting w/o LLs consent
(a) Traditional: to promote alienability, a lease that limits subletting but not assigning
will be strictly construed to limit only subletting.
(b) Modern: focuses on intent of the parties

36

(c) Reasonableness: Should it be implied in the LL consent requirement? A difference

btwn the Commercial vs. Residential context.
(i) Kendall v. Ernest (p. 683): LL arbitrarily refuses to allow commercial property
lessor to assign his property bc LL wants to negotiate for higher rent with the
new tenant. Majority rule allows arbitrary refusal by LL, but this court adopts
the minority rule of reasonableness. Why?
1. Restraints on alienation are becoming an increasingly big issue in an
increasingly urban society
2. Leases are treated more like contracts. Contracts have requirements like:
Mitigation of damages and Obligation of good faith.
3. Factors in considering reasonableness:
a. Financial responsibility of proposed assignee, suitability of use of the
particular property; legality of the proposed use; need for alteration of
the premises and nature of occupancy.
4. Denying consent for personal taste or convenience or so that LL may chare a
higher rent than originally contracted for are not commercially reasonable.
5. CAL. Statute: now has implied reasonableness which can contract around
(ii) Slavin v. Rent Control Board of Brookline (p. 688): LL doesnt want to let
tenant sublease a room and clause allows him to deny arbitrarily and
unreasonably. Board found LL acted unreasonably, but ct. reversed citing that
reasoning for reasonableness in commercial context doesnt apply to residential
1. Reasons for commercial that dont apply:
a. concern that LL will withhold consent in an attempt to get unfair
financial gain
i. Doesnt apply bc rent control apt has little economic incentive to
withhold consent
b. Desire to limit restraints on alienation in light of necessity of commercial
building space in an ever increasing urban society.
i. Absence of a demonstrable trend involving residential leases in other
jurisdictions causes ct to find unpersuasive the necessity of
reasonable alienation of residential space.
2. Policy concerns:
a. Reasonableness test also would create a plethora of litigation to
determine if LLs consent was reasonable
b. It is the role of the legislature to address concern of public policy
3. Expectations are muddied (vs. crystal) when you add in reasonableness
(3) Lease prohibits assignment and subletting altogether.
VI) Condition of Leased Premises
a) Common law: The duty to maintain the condition of leased premises fell almost entirely on the
tenant. The lease was seen as a conveyance of land for a defined period (like a modern sale of
land). LL transferred all of his rights in the land to the tenant for a specified term.
b) Express and implied terms in the Landlord Tenant relationship
i) Usually governed by lease terms (tenant wont sublet, LL will pay for water, etc)
ii) Also governed by implied terms, on of which is the covenant of Quiet Enjoyment
c) LL Remedies and Tenants Defenses and Remedies
i) LL Remedies: sue for backrent, possession of premises (eviction), and damages for breach
ii) Defenses: Tenant can raise these admitting he stopped paying rent but asserting that he was
entitled to do so bc the LL breached the agreement first.
(1) Some defenses available for both backrent and possession claims, some only available for
one. (constructive eviction = back rent, warranty of habitability = possession)

37

iii) Counterclaims: Tenant may also counterclaim that they have damages resulting from LLs
breach of lease and want rent abatement (a rent reduction).
iv) Tenant suits: Instead of waiting for LL to sue him, tenant can petition for injunctive relief to
order LL to fix apt to comply with housing code.
d) Actual Eviction: LL breaches the lease by physically barring the tenant from the property (such
as replacements of new locks on the door), so that tenants obligation to pay rent ceases entirely.
e) Constructive Eviction: occurs when (1) landlords wrongful conduct (2) substantially interferes
with tenants quiet enjoyment of the premises (breach of the Covenant of Quiet Enjoyment)
i) Elements of Constructive Eviction:
(1) Wrongful conduct: Landlord either acted (loud construction, nuisance, trespassing on
leased premises) or failed to act (1. fails to comply with statutory duty concerning leased
premises 2. fails to comply with limited repair duties imposed on common law LL)
(a) Blackett doctrine makes LL liable for 3rd parties that he can control.
(2) Substantial Interference: a reasonable poerson would conclude a rented dwelling is
uninhabitable or lease commercial premises are unusable for normal business making it
functionally equivalent to LL physically barring tenant.
ii) Elements to Raise Defense of Constructive eviction so tenant can stop rent payment and
move out before end of lease term:
(1) Must give LL notice of the sub-par living conditions
(2) Must give LL reasonable chance to cure
(3) Vacate premises within a reasonable period of time
(4) Note (2) and (3) are at odds with eachother!
iii) Minjak v. Randolph (p. 701): apt with residential portion and commercial portion. The
commercial portion was completely unusual and the residential portion was extremely
uncomfortable bc they had flooding from a business upstairs, holes in stairs and saw dust
everywhere from LLs construction to the premises.
(1) Ct. allowed partial constructive eviction for the commercial portion that had been
covered up and completely unusable for yrs. Thus, even though tenant had not moved
out, that portion of the apt had been effectively moved out of.
(2) Implied Warranty of Habitablity for residential portion.
(3) Ct also applied Blackett doctrine and uses the lower standard of Rest. II, that the LL
interferes with permissible use of the property, rather than substantial interference.
iv) Landlords liability for acts of other tenants:
(1) Traditional doctrine: constructive eviction may be shown only if the landlord has acted in
a way that interfered with the tenants interest in quiet enjoyment. LL not responsible for
acts of other tenants unless lease specifically includes obligation to control their conduct.
(2) Blackett doctrine: makes LL liable for acts of third parties performed on property in
which the landlord has an interest, which conduct could be legally controlled by him. It
also rejects requirement that tenant abandon premises before using constructive eviction
(3) Blackett v. Olanoff (p.703) LL rented apt to P and also owned a building where he
allowed ppl to run a cocktail lounge that was extremely loud at night. LL claimed he was
noise did not constitute a breach of the covenant of quiet enjoyment bc he was not
chargeable with their actions.
(a) However, bc the disturbing condition was the natural and probable consequence of
the LLs permitting the lounge to operate where it did and bc the LL could control the
actions at the lounge, he should not be entitled to collect rent for residential premises
which were not reasonably habitable.
f) Implied Warranty of Habitability
i) Traditional:
(1) LL had no implied duty to repair rented premises. Only exception was duty had duty to
fix latent defects known to them and not easily discoverable by the tenant.

38

ii)

iii)

iv)
v)

vi)

(2) Contractual obligations of LL were independent rather than dependent. Meaning if LL

breached, that did not give tenant right to withhold rent.
Modern Implied Warranty of Habitability: repudiated lack of duty to repair and the
independent covenants rule. It effectively assigns the burden of repairing residential premises
to the landlord as a matter or law regardless of the provisions of the lease. Under the
doctrine, each residential lease is deemed to contain an implied warranty that the LL will
deliver premises in habitable condition, and maintain them in that condition during lease term
Standard: The defects must be so substantial that a reasonable person would find the premises
unfit for habitation.
(1) Look to housing codes to determine if unfit, some jurisdictions find codes informative
but not determinative. If not using housing codes, you use the common sense approach
based on locality. One or two minimal housing code violations doesnt count
(2) If you move in and it is already unfit for habitation, such may be considered by the court
that you bargained for the less good habitation and may be considered in rent abatement.
(3) URLTA (uniform resident landlord tenant act) adopted by 30 jurisdictions, standard
version of implied warranty
Elements to raise defense:
(1) Must give LL notice
(2) Must give LL reasonable time to cure.
Policy Considerations:
(1) Arguments for Implied Warranty:
(a) Utilitarian response to contemporary social and economic conditions (Javins)
(b) Understanding of lease has moved from property to contract
(i) Implied duties of contract get brought into determinations about lease
(c) Traditional law assumed equal bargaining power, but moderm tenant cannot protect
interests through negotiation.
(2) Arguments Against Implied Warranty:
(a) Compliance with warranty imposes extra costs on landlords, Landlords will tend to
pass these costs onto tenants, Some tenants will be unable to afford these higher
rents, And therefore will be forced out of housing market.
(i) Thus, tenants should have ability to waive the implied warranty.
Remedies for Breach of Implied Warranty
(1) Rescission of lease and sue
(a) Tenant moves out, stops paying rent, and possibly sues LL (could also use
constructive eviction)
(2) Remain in possession and withhold rent:
(a) LL will sue for non-payment in a summary eviction action, and tenant brings defense
of breach of implied warranty
(b) Question will be: may tenant withhold all rent for partial breach? Or will there be rent
abatement?
(i) Many statutory administrative procedures exist before withholding rent is
allowed (i.e. housing inspector can come and confirm breach, or rent can be put
in escrow in the event the court finds the tenant owes some or all of the rent)
(3) Remain in possession and do rent abatement:
(a) Tenant withholds portion of rent
(b) If you move in and the place is already uninhabitable, may be considered that you
bargained to pay less, so court may allow less rent abatement
(c) Remedy may be more efficient bc self-help can force tenant and LL to work it out
(4) Remain in Possession and use Repair and Deduct Remedy:
(a) Tenant gives LL notice, but LL doesnt do it so LL repairs defects and then deducts
cost of repair from rental payments

39

g)

VII)
a)
b)

c)
d)

(b) Subject to restriction that repair cost must be reasonable

(5) Remain in Possession and Sue for Damages:
(a) Tenant remains in possession, continues to pay rent and sues LL for damages.
Contract has not been rescinded.
(b) Three measures of damages
(i) Difference btwn agreed rent and fair market value as is
(ii) Difference btwn fair market value as warranted and fair market value as is
(iii) Percentage diminution in agreed rent (reflecting tenants loss of use)
(6) Terminate lease and sue for damages
(7) Administrative remedies some statutes might require mediation first
(8) Criminal penalties against LL if particularly egregious violations
vii) Javins v. First National Realty (p. 709): iconic case where ppl living in D.C. under the worst
conditions in apt complex (buckets of cockroaches, etc) but couldnt afford to move out, and
so couldnt use constructive eviction doctrine. Court created the implied warranty of
habitability citing the arguments for implied warranty. (contemp. life; property contracts)
(1) Finder of fact must determine whether alleged violations existed during period for which
past due rent is claimed AND what portion, if any or all, of the tenants obligation to pay
rent was suspended by landlords breach.
Differences btwn Covenant of Quiet Enjoyment and Implied Warranty of Habitability
i) Covenant has a lower standard of condition of property (substantial interference with quiet
enjoyment) and is the only remedy for commercial properties.
ii) Warranty has higher standard of unfit for habitation, does not require tenants to move out,
can only use in residential.
Retaliatory Eviction
Prevents a landlord from evicting a tenant who complains about housing conditions. Found in
common law and in many statutes
Mechanics:
i) Tenant complains
ii) LL serves eviction notice within (X days), statute either says 90 days to one year
iii) Presumption that eviction is in retaliation for complaint if within X days.
iv) LL has burden to establish that action was not motivated by retaliation
(1) Usually requires a showing of objective good cause
v) Then Tenant has burden of proof amongst the competing stories
Issue: Mixed motivation doctrine Blend of motives, different results in different jurisdictions
i) Dominant view: Rest II, retaliation need only be the dominant purpose
Hillview Associates v. Bloomquist (p. 726) Mobile home tenants formed tenant association due
to converns over physical condition of trailer park and rent increases. They met with management
a few times and the last time, four couples who headed the association met with management and
the argument escalated until one of the tenants hit the manager. Park served 30 day termination to
the four couples.
i) HELD: following Edwards v. Habib and the Mobile Home Parks Residential LL and Tenant
Act, the court said a LL could not evict bc tenants complained about housing code violations
and joined a tenants assoc. There was a presumption that the eviction was retaliatory bc it
was within 6 mos.
ii) Factors in considering if LLs primary motivation was not retaliatory:
(1) LLs decision was a reasonable exercise of business judgment
(2) LL in good faith desires to dispose of entire leased property free of all tenants
(3) LL in good faith desires to make a different use of leased property
(4) LL lacks financial ability to repair leased property and therefore in good faith wishes to
have it free of any tenant
(5) LL was unaware of tenants activities which were protected by statute

40

(6) LL did not act at first opportunity after he learned of tenants conduct
(7) LLs act was not discriminatory
iii) The LL could not prove these factors, therefore, three of the couples could not be evicted.
However, the tenant who hit the manager could be evicted bc there was an objective good
cause for eviction.
e) Scope of the Doctrine
i) What tenant conduct is protected?
(1) Tenants exercise of rights to secure decent housing
(a) Complaints about habitability
(b) Forming or joining a tenants union
(c) Tenuous connections are not always accepted
(i) Imperial Colliery v. Fout (p. 730): Fout worked for mining company and joined
union to protest against employer. Housing was provided by mining co. for 1
dollar a year. After he protested, he was given notice of eviction.
1. HELD: Ct. found that the protected activity must relate to activities of the
tenant incidental to the tenancy. Only a few courts allow activity that is only
indirectly related to the tenancy relationship (cites Partners v. Delos Santos
where tenants gave testimony before state commission about LLs proposal to
redesignate their farm property from agricultural to urban uses.)
2. This case is different than the Partners case bc the activity was unrelated to
the habitability of the premises.
ii) What landlord conduct is prohibited?
(1) A landlord may not evict in retaliation
(2) LL may not raise rent or reduce services in retaliation for protected tenant conduct
iii) A Landlord taking himself out of the Market
(1) Robinson v. Diamond Housing (p. 733): Ct. found Robinson had successfully asserted
warranty of habitability claim, LL then evicted her and argued that it was not retaliatory
bc he was unable or unwilling to make the legally required repairs on the premises
necessary to put the housing in compliance with the housing code and that he intended to
take the apartment off the rental market.
(a) HELD: Ct found tenant could successfully raise the defense of retaliatory eviction
under these circumstances bc Diamond did not come forward with a legitimate
business justification. A LLs right to discontinue rental of all his units in no way
justifies a partial closing designed to intimidate remaining tenants.
(b) Dissent: Majority says its decision will promote the development of more and better
low-cost housing, but fails to see how. LL should have the right to stop doing
business if he wants. Cannot saddle LL with a perpetual tenant

REGULATORY TAKINGS LAW

I) Takings Clause: Prohibits govt from taking private property, unless that taking is for public use and
pays just compensation.
a) Constitutionally based doctrine that applies to federal govt thru 5th amendment (14th A for states,
cities, and local govts)
II) TAKING Two types: Eminent Domain and Regulatory Takings
a) Eminent Domain: When a govt entity takes permanent physical possession of a particular parcel
of land. (i.e. takes land to expand interstate highway)
i) Loretto: ANY permanent physical occupation of property authorized by govt is deemed a
compensable taking (even if its a couple of cables and a cable box)
ii) Policy: this is fine bc effectuate public good

41

(1) The fight in Eminent Domain cases is usually with Public Use and Compensation.
b) Regulatory Takings: When does a land use regulation become a taking of private property?
When it goes to far Penn Coal.
i) Modern purpose of Takings Clause: to bar govt from forcing some ppl alone to bear public
burdens which, in all fairness and justice, should be borne by public as a whole
(1) Penn Central: Appellant argues that he bears too much of the weight, but ct. says that
this is a comprehensive scheme that applies to all buildings, but some buildings are
worthy of protection, thus benefiting everyone.
ii) 3 Core principles
(1) The economic impact of the govt action on the owner
(2) The nature of the public interest underlying the govt action
(3) Whether the govt action involves physical intrusion or merely regulation.
iii) Court has 2 types of tests: Ad hoc and Per se
(1) Ad hoc factual analysis:
(a) Penn Centrals multi-factor balancing test of 3 Relevant Factors in a Takings case:
(i) The economic impact of the regulation on the claimant:
1. Reduction in Market Value: A regulation is not a taking simply bc it
somewhat reduces the market value of an owners land
a. Rationale: bc every regulation will affect property to some extent and if
govt had to compensate every time it wouldnt be able to function.
b. However, after Penn Central it is clear that reduction in market value
has become more important, but absent a diminution in value to 0 its not
enough to be considered a taking.
i. Penn Central: Appellant argues that the landmarks law deprived him
use of air rights (thus a diminution to 0 of those rights) but court
focuses on the parcel as a whole instead of the air rights separately to
say that the appellants still have beneficial use of the property.
2. Reasonable Economic benefit: Penn Central: court looks at reasonable
economic benefit instead of at diminution in value. Appellant still has
reasonable economic benefit, and basically just has lost opportunity cost.
(ii) The extent to which the regulation interferes with the claimants distinct
(reasonable) investment-backed expectations:
1. Reliance interest
2. Not necessarily entitled to the most beneficial use of your property. The law
doesnt have to afford you the opportunity to make the most money possible.
3. Rehnquist dissent in Penn Central, law only applied to 400 buildings, so
appellants may have expected to be allowed to use air space.
(iii) The character of the governmental action.
1. is it a regulation or permanent invasion (Loretto, matters for per se)
2. Not fair to overly burden
3. Inherent suspicion if govt gets too close to property
(b) The Nuisance or Noxious use Exception
(i) Police power authorizes govt to regulate use of land to protect public health,
morals, safety and welfare, thus if govt uses its police power to regulate a
nuisance or other harm to the public caused by the use of land, the affected
landowner was not entitled to compensation under Takings clause
(ii) Miller v. Schoene: Govt was entitled to cut down all of plaintiffs red cedar trees
with cedar rust bc such trees would destroy nearby apple trees. Apple trees are
principal agricultural pursuits in Virginia, whereas cedar trees are just ornamental

42

1. RULE: When forced to do so, a state does not exceed its const. powers by
deciding upon destruction of one class of property in order to save another
which, in the judgment of the legislature, is of greater value to the public.
2. This is not merely one of a conflict of two private interests; bc there is public
concern in saving apple trees over cedar trees.
(2) Per se/Categorical Takings
(a) Per se taking if:
(i) Govt authorizes permanent physical occupation of land (Loretto- cable lines/box)
and apparent 4th prong = govt facilitates occupation thru a stranger (cable guy)
(b) No per se taking: Pruneyard Shopping Center (p. 976)
(i) Temporary, not permanent physical occupation in a large common space (so not
getting in anyones way)
(ii) Already open to the public (whereas LLs in Loretto were not open)
(iii) Shopping center can control ppl who petition to the extent that they wont
interfere with business (reasonable investment backed expectations/economic
impact)
III) PUBLIC USE
a) Two Polar Propositions:
i) Property cant be given from one private part to another private party, even though the first
party gets just compensation
ii) A state may transfer property from one private party to another if future use by the public is
the purpose of the taking.
(1) Court cannot take property under mere pretext of public purpose.
b) Traditional:
i) defined public use to mean that condemnation permitted only if the affected land will be
physically used or occupied by members of the public (library, public park, highway)
c) Modern:
i) Public Purpose test: As long as property is taken for a legitimate public purpose (a purpose
within scope of govts power) the public use requirement is satisfied.
(1) Established due to evolving needs of society and there is deference to legislature to
decide what those needs are (Berman)
ii) Berman v. Parker: scheme to redevelop a blighted area in D.C., and plaintiffs department
store was in this area. District intended to resell land o entrepreneurs who would build
projects consistent with urban renewal land. Plaintiff said this was taking private property
from A to give to B for private use!
(1) S.Ct. upheld action bc the legislature created a comprehensive redevelopment plan for the
good of the public and court needs to defer to their plan.
iii) Hawaii v. Midkiff: Hawaii took private land which was highly concentrated in a few owners
and redistributed to ppl. S.Ct. upheld and used public purpose standard and rational basis
review to UPHOLD legislatures action. Could the legislature rationally have believed the
condemnation would serve a peromissible public purpose?
(1) Ct. found that reducing social and economic evils was a classic exercise of police power,
and thus they were justified. The mechanics dont matter, as long as the purpose is
justified.
iv) Kelo v. City of New London: S.Ct. allowed economically-distressed city with a high
unemployment rate to condemn an owner-occupied home and convey it to a private company
as part of an economic development project to create more jobs, increase tax revenue, and
generally revitalize the city.
(1) Ct said that this was not just transferring the property of citizen A to citizen B for te sole
reason that citizen B will put the property to a more productive use and thus pay more
taxes. TWO critical differences according to the court:

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(a) Comprehensive nature of the plan

(b) Careful deliberation that preceded the adoption of the plan, a process that minimized
the risk of abuse.
IV) JUST COMPENSATION
a) General rule: Fair Market Value
b) Tee-Hit-Ton Indians: In order for there to be compensation for a taking (of timber on Tee-HitTon land) it must be based upon a constitutional right of the Indians to recover.
i) Court found that bc no indication that Congress intended to grant the Indians permanent
rights and that the Indians occupied the lands in Alaska by permission of Congress
ii) Based on legal theory of conquest, this gives U.S. sovereignty over lands obtained
iii) Nomadic and wholly tribal use of property means anti-ownership. The fact that descends thru
mothers line does not convince court of ownership.
c) Sioux Nation: Treaty of Fort Laramie: In return for U.S. border protection, Sioux would give up
some of their land and stay around the black hills. Gold settlers began to invade the black hills.
i) After a while, U.S. stopped protecting the area and offered 6 million after the Sioux asked for
70 million. Battle of little big horn ensued and Act of 1877 (not following all requirements)
took most of Sioux hunting land, forcing them to be dependent on the U.S. for rations.
ii) Is this a taking? YES
iii) If so, what is Just Compensation?
(1) Good faith effort test: Following Lone wolf Ct. found the 1877 was not a good-faith
effort to give Sioux the full value of the Black hills. As evidenced by
(a) Congress did not purport to provide adequate consideration by providing rations
(b) There was no meaningful negotiation or arms-length bargaining
(c) Congress did not consider it was paying a fair price.
(2) The essential element of the test is determining the adequacy of the consideration, and
such an inquiry cant be avoided by Govts simple assertion that it acted in good faith.

INTELLECTUAL AND CULTURAL PROPERTY

I) Introduction: Is it property?
a) Labor-desert theory (Locke): sweat of the brow approach not taken
b) Utilitarianism (Bentham): by protecting interest you incentivize creation (theory used)
c) Inherent tension: Ideas are not subject to ownership and we want ideas to be free so ppl can
engage in all human activity but also want ppl to get credit so there is an incentive.
d) Must balance Duration with Monopoly
i) TM is unlimited in duration (unless out of commerce), but not as exclusive and patent is the
most rigid monopoly but most limited in duration.
e) Copyright and Patent are governed by federal statutes due to authorization by U.S. Const. that
Congress may promote progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and discoveries (art. I 8)
f) Trademark governed by common law, but supplemented with Lanham act.
II) Trademark: grants exclusive rights in symbols that indicate the source of goods or services.
a) Federal legislation supplements but does not displace common law (unlike copyright/patent)
i) Lanham act: gives seller exclusive right to register TM and to prevent competitors from using
the TM. TM includes any word, name, symbol, device thus it is VERY BROAD.
b) Purpose:
(1) Dilution:
(a) Protect goodwill associated with particular company from unfair competition AND
(b) Protect consumer from confusion resulting from different companies using
same/similar names

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(2) Types of Dilution

(a) Tarnishment: if a company sells inferior quality products (i.e. Singer sewing and shitty
Singer refridgerators)
(b) Blurring: when a distinctive mark begins to lose its association with a particular
company (i.e. goldfish)
c) Limits:
i) Trademark only protected if they are used in commerce to sell goods (failure to use for a long
time may constitute abandonment)
ii) Doctrine of Functionality: a product feature that is functional cannot serve as a trademark
(1) Words that describe goods generally (generic names) cannot be trademarked because:
(a) Unlikely to signal a particular maker
(b) Competitors are likely to need to use those words to sell their goods.
iii) Can you trademark a color? YES, as long as it doesnt interfere with doctrine of functionality
(1) Qualitex v. Jacobson (p. 1089) Qualitex makes dry cleaning pads green-gold. Jacobson
started making their pads in green-gold. Court finds that you CAN TM a color bc
Lanham act is not restrictive.
(a) Colors in limited supply arg didnt work bc then it would interfere with doctrine of
functionality and thats not at issue here.
iv) Cybersquatting: ppl obtain domain names for websites for sole purpose of selling them to
copyright holders
(1) Anticybersquatting act: law prohibits anyone from registering or using a domain name
with bad faith intent to profit from anothers trademark.
d) Removal of Disparaging or Scandalous trademarks
i) Lanham act allows removal of trademark registration of marks that consist of or comprise of
matter which may disparage persons, living or dead, institutions, beliefs, or national symbols
or bring them into contempt or disrepute.
(1) Can be brought by any person who believes he is damaged by the registration BUT is
subject to equitable limitations (estoppel, laches, etc) but no statute of limitations.
ii) Harjo v. Pro-football: Patent and TM office removed federal registration for the Redskins on
the ground that the name was immoral, deceptive or scandalous. The doctrine of laches could
be applied but only once the disparaged person had come of age, thus bc the last TM was
sought when one of the plaintiffs was 2 years old, doctrine of laches didnt apply.
iii) Nothing prevents USE of mark, but it just wont get protection.
iv) NCAA: required teams to get consent from Indian tribes to use names or couldnt hold
NCAA post championship events.
III) Copyright:
a) Three prongs: Grants exclusive right:
i) in original works (not rewarding sweat of the brow)
(1) level of originality is quite low, not necessary to be novel
ii) of authorship (needs to be clearly defined)
(1) Works of authorship include: literary, artistic, musical, dramatic works, computer
programs, movies, sculpture, paintings, & architecture.
(2) can be difficult in work for hire scenario to determine authorship
iii) Fixed in any tangible medium of expression.
(1) It does NOT protect idea, procedure, process, discovery, concept, method of operation.
b) Purpose:
i) Promotion of Learning
ii) Exclusive rights of author: to incentivize creation
iii) Protection of public domain: expiration of copyright will put creations into public domain
iv) Statutory v. Natural law

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c)

d)

e)

f)

(1) We are concerned with Statutory law (whereas in Europe they are concerned with moral
rights of the author)
(a) In U.S., Copyright is an interest in preventing copying NOT interest in the actual
thing (thus no real right of exclusion like with other property rights)
The Meaning of Originality: to be an original work, it must have some minimal degree of
creativity (not necessarily novelty).
i) It is a constitutional requirement
ii) Feist v. Rural Telephone (p. 1095): Rural local telephone company makes local phonebook
and has access to all numbers. Feist makes a regional directory and wants local numbers.
They end up copying Rurals phonebook (along with phony numbers) and Rural sues them
for copyright infringement.
(1) Tension:
(a) Facts cannot be copied
(b) Compilations of facts may possess the requisite originality so long as they entail a
minimal degree of creativity.
(i) However where person allows facts to speak for themselves, the expressive
element is more elusive and therefore copyright is thin.
(2) Purpose of Copyright: is not to reward the labor of authors, but to promote the progress
of Science and useful arts. This is why IDEAS are not copyrightable.
(3) HELD: publishing names/numbers alphabetically is a selection, but lacks the modicum
of creativity necessary to transform mere selection into a copyrightable expression
Exclusive right defined:
i) Reproduce in copies
ii) Prepare derivative works
iii) Distribute copies
iv) For performance works, to perform them publicly
v) For pictoral/literary, to display them publicly
Prima facie case of Copyright Infringement:
i) Establish ownership of a valid copyright
ii) Show substantial similarity btwn two works such that an average lay observer would
recognize the alleged copy as having been appropriated from the copyrighted work.
(1) HOWEVER author cannot copyright facts or ideas, the copyright is limited to those
aspects of the work-termed expression that display stamp of authors originality.
Limitations on exclusive rights (after established Prima facie case): Fair Use
i) Fair use: allows reproduction for purposes such as criticism, comment, news, reporting,
teaching (including multiple copies for classroom use), scholarship or research.
ii) Factors to determine if fair use:
(1) Purpose and character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes
(2) The nature of the copyrighted work: (hierarchy) creative works afforded greater
protection than derivative works or factual compilations
(3) The amt & substantiality of portion used in relation to the copyrighted work as a whole
(4) The effect of the use upon the potential market for or value of the copyrighted work.
iii) Suntrust v. Houghton (p. 1117): TWDG was a parody of GWTW and while GWTW
established prima facie case of copyright infringement, TWDG was able to validly assert the
defense of Fair use bc Parody is a protected use of criticism or commentary of the original.
(1) 4 Factors:
(a) Purpose and character: for commercial use, but its for-profit status is strongly
overshadowed and outweighed by its highly transformative use of GWTWs elements
(i) Can provide social benefit by shedding light on an earlier work and in the process
creating a new one.

46

(b) Nature: given little weight in parody cases

(c) Amt and Substantiality of the portion used
(i) Difficult with parody bc it necessarily springs from recognizable allusion to its
object thru distorted imitation.
(ii) Parody should not use elements that dont serve a parodic purpose, but court
doesnt look at small details that might not have been necessary as long as the
overriding purpose and character is to parody.
(d) Effect on the Market Value of the Original
(i) Only harm to derivatives is harm of market substitution. The fact that a parody may
impair market for derivative uses by the effectiveness of its critical commentary is
no more relevant under copyright than the like threat to the original market.
(ii) No evidence that this was a market substitution.
g) Duration:
i) Lifetime of Author + 70 yrs OR
ii) Works for hire: 90 yrs from publication or 120 yrs from creation
IV) Patent: grants exclusive rights in inventions, including processes, machines, & compositions of matter
for up to 20 yrs.
a) Granted by a govt agency, the Patent and Trademark Officer after application by inventor
b) Patent granted only if four requirements are met:
i) Subject matter of the invention must be patentable i.e. a machine, method of manufacture or
composition of matter.
ii) The invention must be novel, Non-obvious, Useful
c) Drug company controversy
i) Should they give antivirals to third world countries for free/little $? Arg is that they need that
money bc for every good drug there are 100s of failed ones, and need money to fund research.
d) Terminator seeds (making a profit v. social justice)
V) Publicity Rights: common law protection of individuals ability to exclusively control the
commercial use of their names or images
a) Moral rights: in Europe, allows artists to have ability to prevent their works from being
mutilated or misrepresented by subsequent owners.
b) MLK case
i) Right to privacy (right not to be seen) and publicity (the right to exploit image for own gain)
are DIFFERENT rights.
(1) Thus right to privacy is not inheritable, but bc publicity is a different right, it can be.
ii) No need to use the right will alive in order for it to survive death.
c) Right of publicity is at tension with first amendment rights.
VI) Cultural Property:
a) Traditional defn: cultural property referred to tangible resources bearing a distinct relationship to
a particular cultural heritage or identity. Due to cultural significance, these artifacts were thought
to transcend ordinary property conceptions and to merit special protection.
i) Modern has expanded to the intangible as well.
b) What is the law of cultural property?
i) Two conflicting notions: culture which embodies group oriented notions of value and
property which has traditionally focused on individual notions of ownership.
c) Issue arises due to vestages of colonial world
d) Imbalances of trade (Geographical connections)
i) Source nations: poor countries rich in antiquities sell to
ii) Market nations who are rich and buy these cultural properties.
e) Preservation or repatriation? Are some items of such great import they are the product of all
humankind?
f) Laws in cultural property

47

i)
ii)
iii)
iv)
v)
vi)

Hague convention
(1) prevent looting during wartime
(2) cultural internationalism (property of all human kind position)
UNESCO 1970
(1) cultural nationalism (take position that there are things that attach to cultures. Much
more of a protectionist view)
UNESCO 2003: Extension to intangible objects
UN declaration on the rights of Indigenous Peoples
US: national historic preservation act, archaeological resources protection act
Individual states have their own laws.

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