1.

2.
3.
4.
5.
6.

INCIDENTS OF OWNERSHIP
RIGHT TO POSSESS/EXCLUDE OTHERS
THE RIGHT TO USE
THE RIGHT TO THE FRUITS AND PROFITS
THE RIGHT TO TRANSFER/ALIENTA
THE RIGHT TO DESTROY
THE DUTY TO PREVENT HARM

TWO CONCEPTIONS OF PROPERTY

Two conceptions of property
1. Absolute Right to Exclude (Penner/Essentialist View)
a. Property is a right to keep entire universe form something (in
rem right)
b. Right to exclude gives power over other people
i. Trespass tangible, physical interference with exclusive
possession and quiet enjoyment of land and other property
whether or not the interference causes economic damage;
its a right against the world
2. Bundle of Sticks (Grey/Skeptics View)
a. Property is a collection of rights with content that varies
according to context and policy choices
Trespass to Land
Right to exclude
Jacque v. Steenberg Homes
o Facts: D agreed to deliver mobile home to buyer. Easiest method of
delivery was across Ps land. P refused to grant access to land. D still
towed across Ps land. At trial, P awarded nominal damages of $1
(didnt actually hurt the land) and punitive damages of $100,000.
o Held: Punitive damages were not excessive
o Why: Harm of trespass consists of invading landowners right to
exclusive use of land, NOT direct damage to land. Limiting relief to
nominal damages would undermine this right, since any trespasser
could infringe on land while incurring only slight penalty. Punitive
damages deter trespass and encourage landowners to rely on courts
rather than self help
o Note: recognizes interest of landowner in right to exclude others as an
essential property right.
Exceptions to right to exclude
Hinman v Pacific Air Transport

Facts: D regularly flew at altitudes of less than 100 ft over Ps land. P

sued, arguing that ad coelum rule gave him right to prevent aircraft
from flying above his land and that such flights were trespass
Held: Ad coelum rule does not confer unlimited right to restrict access
to airspace above ones land
Why: Ad coelum was not meant to be taken literally. Interruption of ad
coelum rule would result in absurd consequences because it would
allow every landowner to prevent planes from flying above his land
unenforceable. No actual or substantial damage will occur to Ps land.

Trespass/Nuisance Divide
Trespass invasions of land by large objects
Nuisance interferences with the use and enjoyment of land caused by
some activity on neighboring land, like generating pollution or making
excessive noise
Balance of reasonableness of two nuisances causing activities
Hendricks v. Stalnaker (balance of reasonableness of two nuisance causing
activities)
Facts: Man rushed to put in a water well when he learned neighbor was
seeking permit for septic tank. Balancing interests of the competing
landowners
Held: Installation of water well by the landowner was not an
unreasonable use of the land
Why: plaintiff failed to show well was private nuisance substantial and
unreasonable interference with private enjoyment
Cavanaugh v. Corbin Copper
o Facts: Residential area, P bought land and made house. D bought land
started mining near P. P filed action to recover damages upon the
theory that D was maintaining a nuisance which injuriously affected
the health and comfort of the plaintiff and his family and the values of
their property
o Held:
o Why: deed says that p isnt allowed to estop D from doing what theyre
doing but he is allowed to complain if the particular mining ops disturb
or interfere with quiet and peaceable enjoyment of his premises
o Note: mining is not always a nuisance not a nuisance when it isnt in
a residential area

Coase & Costs

Coase Theorem
2

o Original allocation of property rights are irrelevant

o Where transaction costs are very small (nonexistent) property
owners will pay each other for certain property rights or refrain
from exercising certain property rights that would interfere with
others property rights
o Assuming rational maximization is always the owners goal
o LIMITS
Rational maximization assumption isnt true in practice
(Jacque)
Could never exist in real world because it assumes low
transaction costs; its unrealistic
Individuals choices may not be societys most efficient
choice.
o Costs
o Transaction costs costs of doing business
o Search and information costs anything that it takes to
understand the nature of the trade or bargain the parties are
going to strike
o Bargaining costs any costs it takes to negotiate a deal; often
legal fees
o Enforcement costs any cost incurred to ensure the other party
abides by the terms of the bargain

Repeated and Sustained Trespass

Hounds trespassing on land
Baker v Howard County Hunt
Facts: Hounds repeatedly run on to Ps land, bit his wife and mess with
animals that he is conducting experiment on. After 5 yrs. Filed an
injunction.
Held: Court determined there was no adequate remedy at law and
approved the injunction
Why: damages incapable of calculation or evaluation calls for equity,
threat of continued occurrences calls for equity.
Note: action at law is inadequate where D intends to persist unlawful
acts
o Elements for injunction
Damages inadequate
Clean hands of plaintiff
Building Encroachment
Pile v Pendrick

Facts: D hired surveyor to determine property line and built factory.

Later surveyor concluded that first surveyor inaccurately placed line,
so factorys foundation extended 1 inches onto Ps land
Held: D must remove intruding structure even though intrusion is
slight and underground injunction shall issue upon showing of
continuing trespass
Why: No individual may occupy land that he does not own. Since Ds
foundation trespassed on Ps land, court must grant injunction
Good Faith (trespass) /Building encroachment
Golden Press, Inc. v. Rylands
Facts: Foundation of Ds building extended 3 inches on to Ps land
Held: Court should not issue injunction requiring removal of intruding
structure, even though intrusion is slight and underground
Why: where trespass is unintentional (good faith) courts should balance
nature of harm and cost of remedy to reach equitable solution
______________________________________________________________________________
___________________________
Default Standard for Injunctive Relief in Federal Court Handout
What is a patent Intellectual property, they have attributes of personal
property including the right to exclude others from making, using, offering
for sale or selling the invention. Patent ownership of an idea or a way to
create a thing.
Patent troll someone who owns a patent that is not using it and they just
try and sue anyone who is using their patent so they can get money
(problem with this prevents useful products form being brought to market,
discourages innovation)
Injunctive relief v. Damages
eBay v. Mercexchange patent troll
Facts: Mercexchange owned patent sued Ebay for damages but they
wanted permanent injunction
Held: SCOTUS says district court got it wrong in denying injunction, fed
ct reverse trial courts ban on injunction but that was wrong because
they assumed if you violate patent act an injunction is issued
Why: Established 4 factor test.
Injunction v. Damages
Four factor test to be weight for injunction over damages (Established by
ebay) plaintiff seeking PERMANENT INJUNCITON must demonstrate that
1. it has suffered an irreparable injury
2. that remedies available at law, such as monetary damages are
inadequate to compensate for that injury
3. the considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted
4

4. that the public interest would not be disserved by a permanent

injunction
Modes of acquisition, original acquisition principles
Producers Lumber & Supply Co. v. Olney Building Co. (Mistaken Improver/self
help)
Facts: P bought land form D. D forgot sold land and built house on land
under mistaken belief that it was still their land. D demolished the
house, P sued D for value of house
Held: One who mistakenly builds and then demolishes such a house
should be held liable.
Why: When you take the law into your own hands, equity is not on your
side. You must not enter with unclean hands. Under normal
circumstances, a court will grant equitable relief by allowing builder to
remove building if such removal can be carried out without damage to
the land or the building.
Olwell v. Nye & Nilsen Co.

ORIGINAL ACQUISITION
Principles of acquisition
First possession (capture)
o Based on being the first to possess an unclaimed thing
Discovery
o Based on being the first to discover some thing and hence
having a unique claim to possess it
Creation
o Involves being the first to possess some new or novel thing
Accession
o Many of its applications appear to involve the perception that
one things bears such a prominent relationship to another thing
that possession of one thing is also possession of the other thing
Adverse possession
o Based on someone possessing a thing for such a long period of
time that the rights of the original owner are extinguished
Actual entry yielding
Exclusive, continuous possession that is
Open, notorious AND
Adverse under a claim of right
For the statutory period
Sequential possession

o Suggests that prior possession is privilege in the law

Competing acquisition
o Can be read as turning on which of two rival claims of possession
the court finds more compelling in any given context
Condemnation

FIRST POSSESSION
First possession essentially the regulation of a competitive process of
acquiring unowned resources. Requires that one be first ACTUALLY TO
POSSESS an unclaimed thing
Wild Animals
Pierson v. Post
Facts: P in pursuit of fox on uninhabited land. D killed fox and carried it
off.
Held: Purist of wild animal does NOT give rise to possession over
animal
Why: Early authority stated that one does not possess animal until
physically captured. Later authority stated that one does no possess
animal until mortally wounded/physically trapped. Neither authority
suggests that mere pursuit of animal establishes possession.
Overturning the rule would allow any person who saw animal to claim
possession. Since D reduced fox to ownership by killing it, he has title.
RULE: Capture = possession= title
Note: Mere pursuit is not possession. However, mortally wounding
creates vested right and can be divested by another who intervenes
and kills
Ghen v. Rich
Facts: P killed whale. Whale sinks so P could not gain possession.
According to industry custom, finder of whale would report location to
whaling company for salvage fee. Man found whale killed by P and sold
it at auction where D purchased it.
Held: Wild animal that is marked property of particular individual even
if 3rd party found and sold it whale belongs to P
Why: If they ruled for D it would change the whaling industry.
Reconciling Pierson and Ghen you have to do all that is possible within the
norms of whatever you are doingwhoever kills the animal is the owner
Keeble v. Hickeringill
Facts: P owned decoy duck pond to catch ducks. D intentionally fired
guns near pond to scare ducks.

Held: P may recover damages for disturbing his use of decoy pondno
tortious interference.
Why: Owner of land may use land for any purpose he desires. P chose
to profit form land by catching ducks using decoy pond. D cannot
intentionally hinder Ps use of land. Damages should compensate
P for disturbance, not loss of property, since P cannot prove how many
ducks he would have caught if D had not interfered.
______________________________________________________________________________
___________________________

Abandoned Property
-

is a sunken ship a commons?

o No. it is a thing that someone builds and owned and then it sunk.
Abandoned property is property without an owner.

Eads v. Brazelton
Facts: D trying to salvage boat that was on bottom of river, set up buoy
and blazed trees, he left to go to another wreck, P came and salvaged
ship
Held: P can keep the salvage ship
Why: One must have the salvage vessel over the site of the wreck
before one can be said to be in possession of the wreck, Ds behavior
didnt reflect desire to salvage ship.
Note: occupation of abandoned property must depend on actual taking
of property with intent to reduce it to possession
Home run baseball example when ball is hit out of park, when it leaves the
park it is abandoned property and up for grabs

COMMONS
Commons open access to resources where entry is free and users have no
right to exclude
Tragedy of commons degradation of the environment to be expected
whenever many individuals use a scarce resource in common (EX.
GLOBAL WARMING)
SOLUTIONS:
o Leviathanrecommendations that central government
controls most natural resources
o Privatization/propertization public resource that is helping
a lot of people and only allow few to control it, we can
portion it out/divide it amongst people (uneven distribution

of resources within a commonscant figure out where an

equitable allocation would be)
Anti-commons where all or too many of the users of the commons have a
right to exclude; then, nobody is able to sue the resource
Tragedy of anti-commons too many individual rights will lead to
inefficient utilization
Semi-commonswhen a right is subject to private exclusion for some
users, but is freely open to all other uses
Commons, Anticommons and Semi Commons
Commons v. Anticommons
Difference is where right to exclude is placed
Underlying dynamic that creates tragedy of anticommons is similar to
that which creates tragedy of commons
For each tragedy, individual has incentive to act in way that imposes
costs on others, either by exercising right to access (to commons) or
right exclude others (from anticommons)
For each tragedy, overcoming problem requires some kind of
realignment of rights, which requires dealing with holdouts and free
riders
EXAMPLE: each store has 4 diff. owners who have fractional shares of each
store, entrepreneur has to get the agreement of each of the 4 owners hold
out problem.
- patent on gene fragments people were concerned that they would
have to get a bunch of things but that was not the case, solution to
problem of fragmented rights include licensing, inventing around,
infringing, public disclosure and litigation
first possession from commons standpoint
- is a sunken ship a commons?
o No. it is a thing that someone build and owned and then it sunk.
Abandoned property is property without an owner.
Eads v. Brazelton
Facts: D trying to salvage boat that was on bottom of river, set up buoy
and blazed trees, he left to go to another wreck, P came and salvaged
ship
Held: P can keep the salvage ship
Why: One must have the salvage vessel over the site of the wreck
before one can be said to be in possession of the wreck, Ds behavior
didnt reflect desire to salvage ship.
Note: occupation of abandoned property must depend on actual taking
of property with intent to reduce it to possession

Home run baseball example when ball is hit out of park, when it leaves the
park it is abandoned property and up for grabs
DISCOVERY
Establishes a unique right to possess a thing
Johnson v. MIntosh (two conflicting titles)
Facts: P inherited land that he originally purchased from Native
Americans. D claimed he owned land because he purchased it from the
U.S.
Held: P has no right to land
Why: Should not recognize land titled obtained form Native Americans
prior to American indepdence. Instead, native Americans should be
regarded as occupiers of land, no owners with right to sell.
Ownership of land comes into existence only by discovery. US is true
owner of land because inherited ownership from Britain (original
discoverer)
Note: court framed issue narrowly no one can transfer that which one
does not own. The native use and occupancy of the land did not count
as possession in the western sense. Leads back to idea of root of title
which is grantor. First transferee from common grantor is deemed to
have better claim to title
Criticism: denies natural law and supposes that Native Americans
conception of property was fundamentally incorrect however, Native
Americans did not view property as commercial like Europeans

Creation: News as Property 130-43

CREATION
Misappropriation and the Quasi- property right in hot news
Hot News
o News is a non-rival good its consumption by one party does not
impact its ability to others
o Gathering of news is never free (requires costly labor to some extent)
o Affixing legal liability to the misappropriation of news will be a costly
legal process that entails carefully delineating the entitlement
International News Service v. Associated Press
Facts: P gathered and sold news. Members prohibited form disclosing
news to non-members. D was competing organization. D engaged in
unauthorized distribution of news gathered by P by bribing employees,
persuading P to disclose news, and gleaning Ps news from public
bulletins and transmitting it to D for publication.

Held: One cannot hold property right over news itself right to publish
news generally prohibits competing news organizations from profiting
from that news.
Why: D engaged in unfair competition (misappropriation.) While P did
not have monopoly right in news itself, it has quasi property right
against competitors as long as news remained hot to prevail on claim
of misappropriation
o (1) P made substantial investment of time, effort, and money in
creating thing that was misappropriated such that court can
characterize that thing as kind of property right;
o (2) D appropriated thing at little or NO cost such that court can
characterize Ds actions as reaping where it has not sown
o (3) Ds acts have injured P
Note: News is not your property it is common property that you have
attempted to reserve. Policy justification, dont we want to
o In rem right a right to a thing as against everyone
o In personam limiting to a specific business as against ones
competitor this is how we know the news is not property
NBA v. Motorola
Facts: NBA suing Motorola for going to basketball games and then
paging out information, sports stats etc. sues alleging AP v. INS unfair
business competition.
Held:
Why:
The quasi property right in Hot News a right against ones competitor
who may be enjoined against using the news one gathers to the competitors
commercial advantage in competition with the news-gatherers profitability
o Five elements are necessary (plaintiff has to prove)
o Plaintiff generates or gathers information AT COST
o Information is time sensitive
o A defendants use of the information constitutes free riding on
the plaintiffs efforts
o The defendant is in direct competition with a product or service
o The ability of other parties to free ride on the efforts of the
plaintiff or others would so reduce the incentive to produce the
product or service that its existence or quality would be
substantially threatened
Property in Ones Publicity 143-49
Right of Publicity
Copyright act secures the exclusive right for up to 70 years after the death
of the author to all (1) expressions (2) original works (3) upon their fixation in
any (4) tangible medium (some exceptions apply)
Midler v. Ford Motor Company

10

Facts: D wanted to hire P to sing in commercial but she decline. D, had

license to use intended song itself, hired diff. singer to imitate Ps vice.
Result was nearly indistinguishable from Ps voice. Commercial made
NO explicit references to P, only voice was similar
Held: Singer may recover from party that uses voice similar to hers
without permission
Why: Voice, just like face, is identifying feature protected by law. When
distinctive voice of professional singer is imitated to sell product ,
sellers have appropriated what is NOT theirs and have committed tort
Note: Copyright law offers no protection against imitations of a
particular singers rendition of song, so P cannot claim that D used
identity improperly since commercial did not use name, voice,
signature or other identifying features

Creation Intellectual Propertys Statutory Structure 149061

Novelty (149)
Trenton Industries v. A.E. Peterson Manufacturing Co.
Facts: P developed highchair. D examined chair with intention to
potentially do business with P. D decided to return chair and do
business with X who used same swiveling/collapsing attribute as Ps
chair. P alleges that D infringed on patent and was unjustly enriched
Held: Breach of confidence Trenton entitled to royalties. Patent was
not valid
Why: Patent was not valid because it was not an inventive item that
the patent act would want to reward with a patent, it was just putting
together past invention. HOWEVER, D was unjustly enriched by using
plaintiffs idea that it disclosed to D in hopes of reaching a license
agreement.
Nonobviousness requirement of the patent act
- Patent may not be obtained if the differences between the subject
matter sought to be patented and the prior are such that the subject
matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art to which said
subject matter pertains.

PRINCIPLE OF ACCESSION

The Principle of Accession Origins 161-71

Accession: using ownership of one thing to establish ownership of yet
another thing. body of property rules that give rise to acquisition of new
property that is intimately connected with the property the owner already
posses
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1. Increase
a. new born animals.
2. Accretion
a. the person whos land ownership grows from river movement is
entitled to that growth
3. Commingled goods
4. Fixtures
a. Strain v. Green handout (fixtures in a house what do you get to
keep?)
b. A fixture is defined as a thing which, although originally a
movable chattel, is by reason of its annexation to, or association
in use with land, regarded as part of the land
5. Ad coelum
Increase
Carruth v. Easterling
Facts: Ds cattle wandered on to Ps farm. R claimed D promised two
cows for bringing cows back. One of cows had calf while on Ps land
Held: D gets the cow.
Why: Increase for tame, domesticated animals, offspring goes to the
owner of the mother )except I cases where both the parents are well
known, like a prize winning sire then things change)
Fixtures
Strain v. Green
Facts: P purchased house form D house had water heater, chandelier,
blinds, mirrors. When P moved in, all fixtures were removed and
replaced with inferior substitutes
Held: Items motioned above are fixtures and must remain with
property
Why: When something becomes attached to property so that
presumption is that intention was enrich property, it is a fixture. Ds
replacement of original fixtures with inferior substitutes suggests his
recognition that a house lacking them would be incomplete.
Doctrine of Accession
Doctrine of Accession when a person mistakenly takes (in good faith) up a
physical object belonging to someone else and transforms it through
substantial labor into a fundamentally different object CANNOT BE TRESPASS
Wetherbee v. Green

12

Facts: P thought he had permission to cut down trees belonging to D. P

cuts down tress and makes them into barrel hoops. Tress work 25
dollars, Hoops worth $800
Held: D entitled to recover cost of timber, but not the cost of the
hoops. (TROVER not REPLEVIN)
Why: Court relied on the increase in value of the material in holding
that P could not seek replevin for the hoops.
Rule: one whose property has ben appropriated by another without
authority has a right to follow it and recover possession; if, in the mean
time, it has been increased in value by labor or money, the owner can
still reclaim it as long as there is no substantial destruction of identity
o Three Factors in Determining:
1. Mental state of appropriator D acted in good faith, did
not know trespassing when cut down tree.
2. Destruction of substantial identity completely changed
the character of the original property
3. Increase in value of converters label to give the P the
hoops would be unfair because the diff. in value of original
product and hoop is significant.
Common law actions to recover personal property
Replevin: common law action for the return of property wrongfully
converted by a defendant to his or her own userecovery of chattel
itself; even in altered state
Trover common law action in which an owner seeks money damages
for property converted by a defendant to his or her own use recovery
of the value of the chattel as it was to the original owner
Doctrines of Accession Ad Coelum 171-179
Ad Coelum Rule for whoever owns the soil it is theirs up to heaven and
down to hell
Cave Cases
Edwards v. Sims (Lee owned other property, Sims order survey)
Facts: Edwards discovered cave entrance on his land and turn it into a
profitable tourist attraction. Part of the cave was under Lees land.
Pursuant to ad coelum Lee demanded a portion of the profits for the
Edwards use of Lees property. Issue is is there a right to have a
survey
Held: Yes, there is a right to have a survey
Why: Literally interpreted ad coelum to mean it included the land
under
Reconcile Hinman and Edwards Hinman was a policy argument, to protect
the airlines. Also you cannot develop the air but you can develop land

13

Chance v. BP Chemicals Inc

Facts
Held: Deep well injection of hazardous waste = no trespass
Why:

ADVERSE POSSESSION
190-208

Adverse possession:
- If I have been in possession of the property long enough them it is
mine.
- When knowledge of lack of title is accompanied by knowledge of no
basis for claiming an interest in the property good faith claim DOES
NOT EXIST good faith claim of right cannot be established
- Good faith makes it really difficult to bring a claim of adverse
possession
Claim of rights in adverse possession
- an entry by one man on the land of another, is an ouster of the legal
possession arising from the title, or not, according to the intention with
which it is done; if made under claim and color of right, it is an ouster
otherwise it is a mere trespass in legal language and intention guides
the entry and fixes its character
o Detroit squatter example,
Elements of Adverse Possession
1. Actual entry yielding
2. Exclusive possession that is
3. Open, notorious and
4. Adverse under a claim of right
a. Means that the adverse possess subjectively but mistakenly
believe he is legally entitled to the possession of the property,
the AP is acting in good faith
b. The adverse possessor subjectively believes he is not legally
entitled to possession of the property is acting in BAD faith
5. Intent to possess something as ones own
6. For the statutory period
Simple possession possession of a chattel, even without claim of title,
gives the possessor a superior rights to the chattel against everyone but the

14

true owner. The possessor has a special property interest in the chattel
that only the chattels owner, or someone claiming under her, can dispute.
Cave Cases
Marengo Cave Co. v. Ross
Facts: D owned/operated cave tour. P and D originally though entire
cave was on Ds land. After 40 years of Ds use, P discovered that
portion of cave was actually below his land.
Held: D is not adverse possessor because possession was not OPEN ad
NOTORIOUS
Why: Requirement that possession be open and notorious satisfied only
where owner has actual or constructive notice of possession. On lands
surface, satisfied by ownership claims and open and continuous use.
On subsurface lands owner hired expert to determine if trespass is
taking place. Owner must actually be aware of trespass secret
trespass will not start statute running. Actual knowledge of caves
existence is not knowledge it is part of property.
Purposes of adverse possession
Adverse possession against the government
Carpenter v. Ruperto
Facts: P purchased adjoining agricultural land. When P first moved in,
corn extended to her property line. Following year, corn did not extend
to property land, cleared unused area, planted grass, installed propane
take, put in driveway. Knew that property did not belong to them
because they looked at map of lots
Held: Person who knowingly makes use of adjoining property cannot
claim adverse possession even after 30 years of use.
Why: In IA, party seeking to establish adverse possession must act in
good faith. Courts have consistently ruled that squatters and other
individuals who knowingly occupy land owned by another are not
acting in good faith. P cannot claim adverse possession
Note: good faith v. bad faith. P was acting in bad faith. SEMI GOOD
FAITH is not enough to begin using ds property as an extension of ps
yard for a period of 30 years.
NOTE: One claiming title by adverse possession must establish hostile,
actual, open, continuous and exclusive possession under a claim of
right or color of title for at least 10 years by clear and positive proof.
Color of title: written instrument or other evidence that appears to
establish title but does not in fact do so. Thus, if its not a claim of right, one
must have permission form the owner

15

States differ in adverse possession Doctrinal approaches to the element of

adverse and under a claim of right
1. adverse possession required state of mind is I thought I owned it
a. the person is acting in good faith plaintiff should also carry the
burden of some factual circumstances that would indicate that
the person actually acted in good faith
b. claim in equity (if youre seeking a remedy) you have to come in
with clean hands
2. adverse possessor required state of mind is I thought I didnt own it
but I intended to make it mine
3. Adverse possessors state of mind is irrelevant (majority)
Requirement of good faith is minority view, most courts hold that lack of
permission from owner is sufficient regardless of the subjective state of mind
of the adverse possessor. PLUS the claim of right requirement requires that a
person have a REASONABLE BASIS to believe they had a right to the land.
THE LAW OF FINDS
Law of finds
o The acquisition of property through possession of lost or abandoned
objects
Simple possession
o Physical control with intention to assume dominion, giving finder title
of ownership of lost property AGAINST ALL BUT THE TRUE OWNER
***if property was abandoned by original owner, then finder has sole right of
ownership
Finder of property has title of ownership against the owner of the land where
its found EXCEPT:
o When the landowner is the TRUE OWNER and not just the owner of the
land
o If the finder is a servant or agent of the landowner, he
Lost unintentionally parted with item (fell out of pocket) ; finder gets to
keep it (usually)
Hannah v. Peel ( accession v first possession)
Facts: D owned mansion used by military during war but he never
actually occupied the property while stationed there, p found a broach
on a windowsill of which D claimed to be unaware. Dispute over who
owned the broach;
Held: P was entitled to the broach
Why: Since p didnt quality as one of the 3 exceptions (servant,
trespass, true owner) p was entitled to ownership unless claimed by
the true owner (who wasnt D)

16

o General rule Title is in the finder, Hannah is the finder, title

is in Hannah
Note:
o Analyze:
o 1. Possession of the land
o 2. Status and knowledge of the property
o 3. Circumstances of discovery
Armony V. Delamire
Fact: P found jewel and took it to D to be identified. D offered P $ for
jewel but P refused. D gave P back socket but it did not contain jewel.
Held: P can recover Jewel
Why: Although finder of the jewel does not acquire absolute
ownership, his rights are superior to everyone except the original
owner.
Rule: A finder of chattel has title superior to all but the rightful owner
upon which he may maintain an action at law or in equity.
Mislaid intentionally place somewhere but forgotten (left on bar)
McCavoy v. Medina
Pocketbook left at barbershop; shop owner kept it. More likely for item
to be found by true owner in a place where he mislaid it; real property
owner, thus, should keep the item.
Found
Bridges v. Hayworth
Found wallet on the floor inside the store, went to finder because it was
lost property
South Staffordshire Water v. Sherman
Ring at bottom of pool real property owner has superior rights against
non-owner who finds it (employee/employer) Possession of land
includes things attached to or under the land, in the absence of better
title
Elwes v. Briggs Gas Co.
Boat found embedded in soil went to landlord even in a 99 year lease.
Where original owner is not ascertained, real property owner who finds
things on his property has superior rights against all others (if it is
abandoned)
Exceptions to the law of finds
Finder has to be there legally cannot be a trespasser cannot be a
thief

17

A servant or agent finds something not for himself but for his employer
(servant/agent = no title)
If the property owner is in possession of the property and the thing that
is found, the finder does not get anything. (if the thing is attached to
the propertymeteorite that landed naturally become property of the
landowner)

RESOURCES OTHER THAN LAND THAT ARE OWNED

The Human Body 242-57
Values Subject to Ownership
HUMAN BODY
Moore v. Regents of the University of California
Facts: P consented to surgery to remove spleen, unknown to P surgeon
used cells from spleen in medical research. Cells valuable because
produced substance that was scared in normal cells. Ps surgeon
granted patent on cell line and received substantial proceeds from
licensing of cells. P sued upon discovering uses to which cells have
been put
Held: P does not have property right over removed tissues BUT failure
to notify P of uses of excised tissue constitutes failure to obtain
informed consent
Why: Surgeon should disclose any intended uses of patients excised
tissues since this might influence decision-making with regard to
course of treatment. Patient, however, does not have property interest
in excised cells. P cannot contend that taking of cells violates privacy
rights over identity, since particular substance is structurally identical
in all spleen cells. Liability for conversation should not be extended to
cover these cases upholding liability would impose burden on
scientists who would have to obtain permission from originator in use
every cell line.
Conversion taking someone elses property and converting it to your own
use
- To establish conversion P must establish actual interference with his
ownership right of possession
o Policy issue, conversion is a strict liability tort
Hecht v. Superior Court ( sperm cannot be disposed of in the probate
proceeding unless it is considered property)
Facts: Man leaves sperm for his girlfriend to impregnate herself, as
state in will, then kills himself. Mans adult children sought injunction to
prevent gf from obtaining sperm
Held: Mans frozen sperm cells are subject to control of probate court
(sperm not destroyed)

18

Why: sperm is unique in its potential to create life, so it occupies

category in property law. Man had interest in sperm insofar as he could
decide whether to procreate using sperm. Decedents children have no
provided legal or factual basis for argument that future children
conceived by sperm would infringe on family integrity or burden
society
Note: Distinguished from Moore on ground that sperm cells can be
used for human reproduction which persons have particularly strong
interest in
Water 324-38
Watercourses
Evans v. Merriweather
Facts: Ds mill was upstream from Ps. Drought reduced water supply
so that it only supplied Ps mill. D constructed dam across stream to
divert entire flow into his mill. Resulting reduction of water supply to
Ps mill impaired its operation
Held: Owner of downstream mill may recover against owner of
upstream mill who diverts stream in such way as to impair downstream
owners ability to use water
Why: Natural wants are needs essential to life, such as use of water for
drinking. Artificial wants are those that improve comfort or facilitate
industry. Landowner may make use of water to any extent necessary to
sustain natural wants and must leave rest for natural wants of person
downstream
Note: Court adopted reasonable use doctrine to favor natural over
artificial use. The water flows in its natural channel and out always be
permitted to run through whose land it pursues its natural course.
Where all have a right to participate in a common benefit, and none
can have an exclusive enjoyment, no rule, from the very nature of the
case, can be laid down, as to how much each may use without
infringing upon the rights of others
Each riparian is bound to make such as use of running water as to do
as little injury to those below him as is consistent with a valuable
benefit to himself; do as little injury as possible to those below
Appurtenant right means connected; goes with; cant sever a water right
from a riparian estate bordering water
Ground water typically follows riparian usage; not first possession
Prior appropriation first in time, first in right to use of water; analogous to
first possession doctrine regardless of whose land its on, the first to make
use or take possession of the resource has the right of ownership; water user
doesnt have to own land adjacent to water to use it
19

o No superiority place on the type of usage but must be BENEFICIAL USE

at time of diversion; only limitation is that the water must be used in a
beneficial way
o Earlier appropriator cannot expand his use if it will detrimentally affect
later appropriators; if you want to increase your water usage, you must
look at how other people use the same water
Coffin v. Left Hand Ditch Company
Facts: P had riparian property on a stream that D diverted by canal to
irrigate ds property outside the streams watershedthis left no water
for P so P broke down Ds dam
Held: Court should recognize priority of appropriation instead of
ownership of riparian land, as basis for water rights
Why: Arid climate of west necessitates artificial irrigation to sustain
agricultural land. Scarcity of water and its economic importance
support rule that one who first appropriates water has superior title.
Abolishing this rule would have disastrous results on settlement of
region and would interfere with existing agriculture
Priority of appropriation: if the running water is appropriated through
diversion, it becomes a vested right entitled to protectinvestment in the
land (conversion), cannot divert if new detriment would be caused ex. X
has diverted water and Y moves down stream after x diverts water OKAY.
Water rights as property = reasonable use. Pure tort system, use it until
you harm someone else. You do have a duty to prevent your property from
harming others.
As long as it is subject to beneficial use it is allowedbeneficial uses
Domestic use
Municipal use
Irrigation
Stock watering (usually no limit on number)
Power mills and factors
Soil retention
Airwaves & Cyberspace 346-60
Broadcasting and Cyberspace
Radio Signal
o Sending broadcast signals across someones land is not violation of
landowners property rights under ad coelom doctrine
o Instead, spectrum is regarded as resource itself and has been object of
either private property rights or administrative regulation

20

o Increasing potential for interference between rival broadcasters led

dept. of commerce to impose restrictions on radio broadcast licenses
o Right to airwaves were bought and sold as part of package of
rights associated with ownership of particular radio stations
Tribune Co. v. Oak Leaves Broadcasting Station, Inc.
Facts: P was broadcasting radio program to Chicago. 1 year later, D
began broadcasting close to Ps frequency, resulting in interference
between stations. P sued to enjoin D from causing interference
Held: D should be enjoined from interfering with Ps broadcast
Why: Priority of time creates superiority of right. P had been
broadcasting longer and had expended resources in promoting its
broadcasts. P had great deal to lose from interference. D had little to
lose form changing to new frequency because it was new.
The Internet as a semi-commons
Copyright and Copyleft hand out
LIMITS ON THE RIGHT TO EXCLUDE
Criminal law or a civil action 361074
Owner Sovereignty and Its Limits
a. Protecting the right to exclude
a. Criminal Laws
Criminal Laws Protecting Person Property
i. Criminal Laws protecting personal property
Right to Exclude
Decisions about resources are delegated to owner who acts as
manager/gatekeeper of resource
o Law allows owner of resource to repel any and all intrusions that
do not have owners consent
o Exclusion likely to be favored where particular resources (i.e.
land) have multiple potential uses and when we think it is
desirable to give owners discretion to chose which use is most
valuable
People v. olivo
Facts: Security guard observed P putting set of wrenches in his cloths.
P began walking toward exit, passing cash registers, security guard
confronted him
Held: Larceny can be complete even before shoplifter leaves store.
Why: Store owners only consent to customers possession of goods for
LIMITED PURPOSE requisite taking of property is evidence by
customers exercise of control over goods inconsistent with owners
continued rights
Gasparik

21

Spatzier 367
Factors page 366
Civil Actions and Self Help 374 -399
Cyberspace
Intel Corporation v. Hamidi
Facts: D formed organization to disseminate info and views critical of
Ps employment and personnel policiesD sent out mass email
criticizing p to ps employees. P requested that e-mails stop but D
continued. P sued D for trespass to chattel (trespass to personal
property)
Held: Trespass to chattel does not encompass electronic
communication that neither damages recipients computer system nor
impairs functioning
Why: Electronic communication does not constitute actionable trespass
to personal property because it does no interfere with possessors use
of, possession OR protected interest in property itself. Consequential
damages (loss of productivity) is NOT injury to companys interest in
computers. To prevail, P must show injury to computer system (i.e.
spam overloads system)
Note: Intruders cannot complain if owner takes defensive measures
such as installing filters to keep emails out owner has a legally
recognized right to exclude but no legal remedy to enforce that right.
(self help)
Analysis
Trover?
o No because he didnt take personal property
Replevin?
o No because this is to recover propertyhe didnt take any
property
Nuisance?
o No because this only includes quiet reference to the enjoyment
of REAL property
Trespass to chattel allows recovery for interferences with possession
of personal property not sufficiently important to be classed as
conversion and so to compel the defendant to pay the full value of the
thing with which he interference
o Only option they have because they want an injunction
Court says this isnt correct cuz actual property wasnt
injured.
SELF HELP

22

Self help: taking an action in person or by representative outside the normal

legal process with legal consequences, whether the action is legal or not.
Landlord Tenant Dispute
Berg v. Wiley
Facts: Lease agreed upon required permission from the landlord in
order for the tenant to make any structural changes to the building,
giving the landlord the right to retake possession of the premises if the
lease was violated. Landlord sought to evict tenant by changing locks
with police officer present
Held: Court rejected use of self help as an acceptable means of
evictionrequired landlord to go through judicial proceedings, said that
only reason it wasnt violent was because tenant wasnt present at lock
changing
Why: when there are other methods available to achieve the same
goal, one must not use self help.
Note: Overruled common law rule that landlord could use self help to
retake premises landlord is not entitled to self help
repossession no matter how perfect their title (goes against UCC
Ar. 9-503)
Williams v. Ford Motor Credit Company
Facts: D repossessed Ps car after car went into default.
Held: D was allowed to repossess car as long as it was peaceably
Why: Unless otherwise agreed, a secured party has, on default, the
right to take possession of the collateral. In taking possession a
secured party may proceed without judicial process if it can be done
without breaching the peace

Limits On Right to Exclude

DEFENSES
Necessity Defense to show that a trespass was required by the
trespasser in order to protect human life or personal property when
exigent circumstances beyond the trespassers control warrant the
tress pass
Burden of proof is on the trespasser to show necessity; if
not exigent, a party must first try to obtain consent from
the owner
Custom a wide spread and prevailing custom may allow persons to
enter upon private lands which would normally be deemed a trespass
Public Accommodation Laws more qualified right to exclude they
are subject to a general duty of nondiscrimination against customers
Public Policy

23

Necessity
Ploof v. Putnam
Facts: Ds were in boat on lake when violent storm force them to
anchor on Ps lakeside dock without permission.
Held: D allowed to dock on Ps lakeside
Why: Necessity is a defense to trespass especially when human life is
at risk
Custom
McConico v. Singleton
Facts: P sued D for hunting on Ps unenclosed/unimproved land
Held: Hunting on unenclosed landed does not constitute trespass
Why: hunting on unenclosed/unimproved lands in custom and
recognized as ok by legislature. Trespass requires injury passing
through is not injurious. Hunting has high social utility (provides food),
so right to exclude on private lands is considered less socially
significant.
*** Majority still allows open access to hunters on unenclosed lands
unless owners post No trespassing signs along the property
*** Modern trend moving away from allowing custom as a defense to
trespass unless theres a special purpose for the trespass
Public Accommodation Laws/ Public Policy
State v. Shack
Facts: P worked with migrant workers. D wanted to speak with migrant
workers. P only allowed limited passage on his property, but D did not
agree to limited passage. D did not leave property and was fined.
Held: Ownership of real property does not include right to bar access to
government services available to migrant workers
Why: P lost right to exclude when he allowed others (migrant workers)
on property
Rule: If a stranger breaks the close of an owners property, then the
owner can have the stranger ejected provided the owners interest in
protecting his own autonomy is strong enough and the interest of other
persons in abrogating the owners rights to exclude are not more
important to society
Uston v. Resorts International Hotel (card counting)
Facts: P counted cards to win at blackjack. Because of ability to
increase changes of winning, D excluded P from its casino
Held: Owner of property open to public does not have right to
unreasonably exclude particular members of public

24

Why: Since P did not go to casino to disrupt activities and was not
security risk, D had no legitimate interest in excluding him from place
to which public was invited. Right to exclude is limited by competing
right of reasonable access to public spaces.
Note: Modern rule disregards right of reasonable access to public
spacesgrants absolute right to amusement places to exclude any
person consistent with state and federal civil right laws
*** Common light right to exclude is limited by competing common law
right for reasonable access to public places common law of
amusements duty to serve
Constitutional protection
Shelley v. Kraemer
Facts: Covenant sought to keep a neighborhoods owners as whites
only; by seeking to avail themselves of the judicial process to enforce
the private covenant against D, the white owners had brought the
power of the state (cts) to discriminate on race, triggering the 14a
Held: The courts could not enforce the racist covenants. Court ordered
equitable remedy.
Why: 14th Amendment prohibits state action to enforce racist things,
covenant couldnt be enforced.
Notes: Restrictive agreements, standing alone, cant be regarded as a
violation of any rights guaranteed by the 14th amendment HOWEVER to
enforce the covenants, the state would need to interfere and because
the 14th amendment prohibits state action to enforce racist things,
covenant couldnt be enforced
-

Civil Rights Act of 1964 Tile II: persons are entitled to full and equal
enjoyment of places of public accommodation without discrimination
and segregation on the grounds of race, color, religion or national
origin; includes hotels, restaurants, places of entertainment, etc.
Fair Housing Acts, 42 U.S.C 3601-19: Prohibits discrimination in
house rental, sale, publication, terms and conditions on the basis of
race, color, religion, sex, familial status or national origin ***doesnt
include age
o Exceptions:
Single family homes rented or sold by the owner, as long
as the owner doesnt possess 3 or more of those houses
Individual, single family apartment units
Religious organizations or private clubs as long as the
rental or sale is not for commercial purposes

RACIALLY RESTRICTIVE COVENANTS ARE UNENFORCABLE

Use of trespass actions to exclude persons based on race
25

Fair housing act 435

Licenses 449064
Other powers of the Sovereign Owner
Licenses REAL PROPERTY, power to give permission to someone else to
gain access to or entry to real property; licenses arent interests in the land,
but merely privileges between persons, inherently revocable by the grantor;
IF EVOKED, grantor may be liable for breach of contract but still revocable;
atomically revoked at death of licensor or at attempt to alienate the license
to another by the licensee
- INHERENTLY revocable UNLES he has a grant

License
Wood v. Leadbitter
Facts: P had ticket to horse race, P is asked to leave without reason. P
doesnt leave but they make him without force.
Held: Race track allowed to ask P to leave
Why: License IS NOT title to property
Note: You are getting permission to be on property for a specific
purpose you are there with the owners permission
License with a grant good for the amount of time that it takes for the
license to make good on the grant, not inherently revocable, AN EASEMENT,
Equitable enforcement of Licenses
ProCD v. Zeidenberg
Facts: P bought commercial software that D bought and turned around
to sell for profit at price lower than P did, in violation of softwares
license agreement
Held: Shrink wrap licenses are enforceable unless their terms are
objectionable on general contract grounds one cannot agree to
hidden terms, but one can agree to be subject to a license when
purchasing software
Why: Copyright Act preempts only those limitations established by law.
o EXCEPTIONS:
Estoppel if a licensee invests substantial money and labor
in reasonable reliance upon the license continuation, then
It can become an easement in estoppel which will bar the
licensor form freely revoking the license.

26

Bailment PERSONAL PROPERTY power to transfer temporary custody or

possession of personal property to a third party who would then be
responsible for the absolute care and custody of the property
- Elements of bailment
o Intent to establish a bailment relationship
o Bailors delivery of the property to bailee;
o Bailees acceptance** of the property
* bailee must obtain possession of property and possession
has two elements: exercise of physical control and intent to
exercise physical control
** Bailors NOW beware: Common law rules of bailment are
often displaced/rearrange by statute
bailees may have superior title to 3rd parties.
- Example: innkeeper statuteallows innkeepers/common carriers to
limit liability for lose, damages, or destroyed property to a specified
amount
Gifting the power to donatively transfer title to property
- an inter vivos gift requires (gift given during life)
o donative intent
o delivery
o acceptance
- a gift causa mortis requires
o donative intent
o delivery
o acceptances AND is revocable at any time prior to death
- a testamentary gift requires a valid will
______________________________________________________________________________
___________________________
Abandonment & Destruction 485 -499
Abandonment and destruction
Abandonment of property owner must relinquish all right, title, claim
and possession with the intention of terminating her ownership, BUT without
vesting it in any other person AND with the intention of not reclaiming
further possession or resuming ownership, possession or enjoyment
- When you abandon property you are not vesting property in some third
party, you are relinquishing title you are not vesting title in a 3rd party
not giving it to someone.
*** no abandonment of REAL PROPERTY because you still have perfect
title because you have the deed and record of the land
Pocono Springs Civic Association v. MacKenzie
Facts: D had a negative value asset in land which D attempted to
abandon by deserting it
27

Held: Cannot abandon land.

Why: For land, there is always a presumption of possession that there
will be an owner of record, making it almost impossible to abandon real
property
Note: CANNOT abandon real property UNLESS owner is able to
completely relinquish perfect title to the land (almost impossible)
COULD be possible to extend to titled items like cars, boats etc
Personal property common law normally allows for abandonment of personal
property; the TRUE owner must manifest the INTENT to relinquish title to
personal property and actually relinquish possession
Destruction normally an owner will have the right to destroy property they
own BUT may be weighed against the public good of destruction on case-bycase basis
Eyerman v. Mercantile Trust Co.
Facts: in her will P requested that her house be razed to the ground
upon her death; value of lot would be decreased by destruction of
house and would substantially affect neighbors property values
Held: House cannot be destroyed
Why: Public policy reasons for keeping senseless destruction of house
from occurring to outweigh owners right to destroy her own property
after death
o Rule allowing an executor of a will to raze a home is against
public policy and wont be allowed when public policy concerns
outweigh interest of decedents
***exception to general rule usually courts uphold
decedents wishes
o property owner can normally do what they want with property
but a difference exists when between an executor of a will and a
present property owner; had she been alive, there may have
been a different result
o public policy senseless destruction served no apparent good
and was injurious to the interest of the estate and to property
surrounding it.
______________________________________________________________________________
___________________________
THE FORMS OF OWNERSHIP THE ESTATES IN LAND AND BEYOND
DIVISIONS BY TIME: THE estates and Future interests 500-517
THE FORMS OF OWNERSHIP

Divisions by Time pieces created must conform to a menu of

possibilities called estates in land

28

Estates in Land type of property right and measure of a persons

interest in the land in terms of duration freehold interests include the
undivided fee simple and two types of lesser property rights that leave
room for future intereststhe life estate and the defeasible fees
o Interest
Present possession interest
Future interest
Present Possessory Estates
Fee Simple Absolute
o Largest package of ownership rights
o Indefinite in time, not natural end
o If owner dies without will state statute will designate certain
others who will then take the property in fee simple
o Grantor is presumed to give all that she has, unless she
indicates otherwise
o ***** courts interpret language against the grantor; if
language isnt clear, it will be interpreted as a fee simple
absolute by default
Life Estate
o Holds natural end with death of named person, usually the
holder of the estate
o Alienable by gift or sale
Defeasible Fees inferior because they come with strings
attached
o Interests are like the fee simple absolute EXCEPT that they
may end on the happening of a named contingency leaves
room for future interest to become possessory when such a
contingency occurs
Fee Simple Determinable ends automatically upon
the occurrence of a named event, whereupon the
grantor and the grantors successor takes the property
to Springfield Law School as long as it is used for
instruction in the law, then to O
language of duration as long as, so long as,
while, during, until LIMITATION rather than a
condition
Fee simple subject to condition subsequent continues
indefinitely except that, upon happening of the named
event, the condition, the interest does not automatically
end BUT CAN BE ENDED by action (self-help or lawsuit)
by the grantor or the grantors successor
to springfield law school, BUT if it is not used for
instruction in the law, then O has the right to
reenter and take the premises

29

Fee simple subject to executory limitation potentially

infinite; if x happens then ownership automatically
transfers to third party, alienable devisable,
descentable, third party has contingent executory
interest
Future interests
o Retained by grantors
Reversion
Possibility of reverter
Right of entry (power of termination)
o Interests created in Grantee
Remainder
Indefeasibly vested
Contingent
Vested subject to complete divestment
Vested subject to partial divestment (or subject to
open)
Executory interest

Present Interest
Fee Simple Absolute

Life Estate

Examples
O grants B to M
O grants B to M in fee
simple
O grants B to M and her
heirs
To m for life

Typical Future Interest

None
None
None

To m for life, then to N

Remainder; indefeasibly
vested

To M for life, then to her

adult children

Fee Simple
Determinable

Reversion in O

Remainder: contingent *

To m for life, then to N if

Condition occurs

Remainder contingent

To M for life, then to N,

but if C occurs then to L

Remainder (in N):

vested subject to
complete divestment

To M for life, then to her

children (N was only
child at the grant)

Remainder (in N) vested

subject to partial
divestment/subject to
open
Possibility of reverter (in
O)

To M as long as
Condition occurs (Then
30

Fee simple subject to

condition subsequent
Fee simple subject to
executory limitation

Free

to D)
To M but it C occurs
then O has the right to
reenter and take the
premises
To M as long as C occurs
then to N.
To M but if c occurs then
to N

Right of entry/power of
termination
Executory Interest in N

Present Possessory Interests

Simple Absolute
Largest package of ownership rights, from which others are carved
Fee simple absolute is only estate that continues indefinitely all
others may end one way or another
In a transfer, transferor is presumed to give all that he has, unless he
indicates otherwise

Heirs
One does not have heirs until death while alive, one has heirs
apparent
If one dies with will (intestate) and without heirs, property will be given
to state in which property is located
Life Estate
Life estate comes to natural end with death of named person, usually
holder of estate
o Ex. A grants Blackacreto C for life, then to D
C has life estate, followed by remainder in fee simple in D
Note: life estate ends with cs death
If C were to sell Blackacre during his life, new owner will
lose property to D when C dies life estate involves Cs
mortality risk and duration of right depends on when C will
die
Defeasible Fees
Simliar to fee simple absolute, except may end on happening of named
contingencythis leave room for future interest to become possessory
when such contingency occurs
Future Interests
Freehold Interests (either vested or contingent)
Fee Simple Absolute

31

Life Estate
Defeasible Fees
Tend to be recorded in land registres

Non-Freehold Interests
Not recorded in land registries
Leases
Law has developed many forms of ownership, which permits divisions across
time and among multiple persons at any one point in time
Division among multiple persons:
o Any time asset is shared by multiple owners, collective action
problem is created (i.e mini tragedy of commons)
o To limit collective action problems associated with multiple
owners and to keep information costs associated with complexity
form spiraling out of control, law limits number/variety of ways in
which co-ownership can be organized
Division by time:
o Intervivos= between living people
o When dividing property rights to land over time, pieces created
must conform to estates in land
Estate= type of preoprty right, measure persons interest
in land in terms of duration
Interest may be either present possessory estate or one
that does not take possession until happening of some
future event (future interest)
Heirs- people who take assets upon death wihtotu will
under relevant state statute
No one has heirs until they die, only have heirs
apparent
Future Interests Retained by Transferor
Reversion
o Grantor has something left over after conveying present estate
Interest left in owner when he carves out of his estate a
lesser estate and does not provide who is to take property
when lesser estate expires
Uncertain whether it becomes possessory in future
o Ex. O conveys Blackacre to A for life
O has reversion
Possibility of Reverter
o Arises when owner carves out of his estate a determinable estate
of same quantum

32

Generally involves caring free simple determinable out of

fee simple absolute
o Ex. O conveys Blackacre to Town library so long as it is used for
Library purposes
O has possibility of reverter if Town Library doesnt use
Blackacre for Library
Right of Entry
o Power of termination/to call off deal
o When owner transfers property subject to condition subsequent
and retains power to terminate estate, transferor has right to
entry
o Ex. O conveys Blackacre to Town Library for library purposes. If
Blackacres ceases to be used for library purpose O has right to
reenter and retake premises

Future Interests Retained by Transferee

Remainder
o Future interest that is capable of becoming possessory at
termination of prior estate
o Not required that future interest be certain of future possession
o Follows a life estate, BUT NEVER a fee simple
Vested Remainder
o Reaminder is vested if
It is given to KNOWN taker AND
It is NOT subject to condition precedent (other than natural
termination of preceding estates)
o Remainder may be indefeasibly vested
Remainder is CERTAIN to become possessory in future AND
cannot be divested
Ex. O conveys to A for life and then to B and his heirs. If B
dies before A, then Bs remainder passes to his devisees (if
he has a will) or his heirs (if he does not have a will) B or
Bs successor is certain to take possession after A.
B has vested remainder in fee simple absolute
o Remainder = kind of future interest
o Fee simple absolute = kind of estate held as
remainder
O conveys to A for life = life estate
Then to B and her heirs = only know how many
heirs someone has once they die
o Remainder may be vested, but not certain of becoming
possessory
o Remainder is vested to open or vested subject to partial
divestment if later-born children are entitled to share gift
33

Ex. O conveys to A for life, then to As children and their

heirs. A has one child (B)
Remainder is vested in B subject to open to let in
later-born children
Bs exact share cannot be known until A dies
Note: this could be second marriage o wants
spouse to get property, but needs to make sure
children get it after
Contingent Remainder
o Remainder is contingent if
It is given to unknown person OR
It is made contingent upon some event occurring other
than natural termination of preceding estates
o When remainder is given to unknown person, it is a contingent
remainder
Ex. O conveys to A for life, then to heirs of B. B is alive
Remainder is contingent because heirs of B cannot
be known until B dies (you dont have heirs until you
are dead)
Executory Interest
o Takes effect only by divesting another interest
o Executory interests are treated as contingent interests because
they are subject to condition precedent and DO NOT VEST until
they become possessory always contingent
o Fee simple subject to executory limitation
Fee simple that, a certain event occurring, is automatically
divested in executory interest in TRANSFEREE (Grantee)
Ex. O conveys to A and his Heirs, but if A dies without
heirs, then to B and his heirs.
A has fee simple subject to executory limitation
B has executory interest if A has no heirs
Bs future interest can become possessory ONLY by
divesting A
Ex. O conveys to A for life, then to B and his heirs, but if B
dies under age 21, to C and his heirs. B is 15.
B has vested remainder in fee simple subject to
executory limitation (of age 21) or subject to
divestment by Cs executory interest (if B dies under
age 21)
o If transferor wants to create future interest in transferee after
defeasible fee, it will be executory interest
Ex. O conveys to School Board, its successors and assigns,
but if premises are not used for school purposes for next
20 years, then to B and his heirs

34

Board has fee simple subject to executory interest

that will automatically divest Boards fee simple if
condition happens
But if premises are not used for school purposes =
executory limit
then to be and his heirs = b has executory interest
that divest Boards interest in property
Ex. O conveys to Library so long as premises are used for
library purposes, then to Hospital.
Library has determinable fee
Hospital has executory interest
Interest given to hospital is not divesting interest nor
remainder (since remainder cannot follow vested fee
simple)

Remainder v. Executory Interest

Remainder= taking possession as soon as prior estate ends
Executory interest= divesting prior estate
VESTED AND CONTINGENT REMAINDERS
Vesting remainder belong to an ascertained person AND there are no
condition precedent that must be satisfied before the remainder becomes
possessory
Ex. O to a for life then to B
B has vested remainder in fee simple absolute
A has life estate
O has nothing
Vesting in interest when party has a legally certain interest in
property even if he cant posses it right away
Vesting in possessionwhen interest becomes possessory; actual
possession
o Ex. O to A in 2015
Vests interest NOW when conveyance is made
Vests in possession in 2015, when A gest possession
Indefeasibly vested remainders
Vested remainders subject to open or partial divestment
Remainder in a class of persons that may increase
Existing class members (those in the class who are alive at the time of
the conveyance) have vested remainders subject to PD
Additional entries into class partially divest the existing class members
remainders
35

Diminishablecan be made smaller with entry of more class members;

more class members added, more vested interests
o Ex. O to A for life, then to Children of B (B has 2 kids alive at time
of conveyance)
A has life estate
Bs children (two alive at conveyance) have vested
remainders in fee simple subject to partial divestment
(more children may come
Rule of convenience when the court closes a class when remainder
is given to a class that can increase in size, courts will close the class
when any class members becomes entitled to possession (when future
interest vests in possession in a class member)
o Usually when the life tenant dies will the future interest vest in
the class
Ex. O to a for life, then to bs children (c and d are children
who are alive at time of Os conveyance)
A has life estate
C and D have vested remainders subject to partial
divestment
Two conditions
Gift becomes available for distribution (a dies)
Someone qualifies for distribution (bs children = c or
d are around)
Ex. When A dies, ct will close the class, so c and d
and any other of bs children who exist at As death
take their remainders; any of bs kids born after as
death are shit out of luck.
Vested Remainder subject to total divestment
Total divestment, remainder is vested ascertained person and no
conditions precedent, BUT vested remainder can be totally divested by
some condition subsequent
o Condition subsequentcondition on the vesting of the interest
itself, which renders the future interest a contingent remainder
Ex. O to A for life, then to B, but if B drops out, then to C
o A has life estate
o B has vested remainder subject to total divestment
o C has contingent executory future interest
How to spotCOMMAS ARE IMPORTANT

WASTE

Doctrine of Waste
Voluntary/affirmative waste actual overt conduct that causes a
descrease in the value of the property, including exploitation of natural
resources

36

Permissive waste neglect or waste occurring when the land is

allowed to fall into disrepair and is not reasonably protected by the
possessor; normally tenants have an obligation to make minor repairs
to keep the premises in reasonable shape
Ameliorative waste acts that substantially change, but enhance
property value is still waste unless all future interest holders know of it
and consent to it

Waste
Brokaw v. Fairchild (NY Mansion)
Facts: Brokaw inherited life estate with mansion from decedent.
Following termination of life estate, remainder interest in mansion was
granted to P. After D took possession of premises, proliferation of
apartment housing made it unprofitable to maintain property, which
was difficult to rent in existing condition and could not be renovated to
make it more appealing to prospective tenants. D proposed to
demolish mansion and replace it with apartment building
remainderman sued on theory that doing so would constitute waste
Held: Life tenant cannot alter estate if such alteration will do
permanent injury to inheritance
Why: cannot demolish mansion because he holds life estate NOT FULL
OWNERSHIP. Decedent specified in will that D was to take possession
of residence, which can only refer to mansion itself. As holder of life
estate, D had obligation not to modify mansion is such a way that
would violate wishes of those with remainder interests. Putting up
apartments would change inheritance so that it could not be delivered
to remainderman this would constitute waste. Since neighborhood
has not been rendered incompatible to present single-family
residences, no valid reason to allow for alteration of estate
*** Modern courts typically allow changes to life estates that will
improve the value of the property
Valuation of Interests
RESTRAINTS ON ALIENATION AND THE RULES AGAINST
PERPETUITIES
Restraints on alienation and the rule against perpetuities 563078
Alienability transfer power and transfer arrangements
Restraints on Alienation
Morse v. Blood
Facts: Man leaves wife all his possession with the restraint that she
cannot give one cent to any of her or his family.
Held: Restraint on a fee simple so it is void
37

Why:
Note: Todays court will allow a restraint on alienation of a fee simple
for a limited time if it is reasonable related to some family estate
planning objective. Even if she broke the condition, the heirs of the
estate would have right of reentry, the power of alienation promotes
not being a slave to property as well as economic efficiency
Mountain Brow Lodge No. 82 Independent Order of odd Fellows v. Toscano
Facts: Says S has to be used by the Odd Fellows and can NEVER be
sold or transferred from the odd fellows. Fee simple subject to
condition subsequent in the grant of property gave the D right of title
ONLY so long as he used it for the specific purpose of a lodge and
didnt try to sell it (habendum clause)
Held: restraint on alienation was invalid, but the restraint on use was
still valid (which would ultimately have the same effect)
Why: ct rejected bar on the sale of the property because that was an
absolute restraint on alienation
*** restricting the use of property allowed only when restriction is
reasonable
*** courts will generally construe a restraint on alienation as a fee
simple subject to condition subsequent instead of a fee simple
determinable so that the right of possession will not automatically
return to the grantor but will instead WAIT until the grantor initiates
proceedings to retake the property
THE RULE AGAINST PERPETUITIES
o Common Law certain future interests are void if there is any
possibility that the given interest may vest more than 21 years after
the death of a measuring life
o Should be applied absolutely; consider any and all remote
possibilities
o Four step process
1. Determine which future interest has been created
a. RAP applies ONLY to contingent remainders, executory
interest and some vested remainder subject to
open/partial divestment
b. Never apply the RAP to future interests created in the grantor
(possibility of reverter, right of entry, reversion)
2. Identify condition precedent to vesting of future interest
a. What perquisite must occur before the future interest holder may
take possession?
3. Finding a measuring life
a. Person who is alive at the conveyance?

38

b. Must be a person whose life or death is relevant to the conditionprecedents occurrence

c. Ex: O transfers a sum in trust for A for life, then to As first child to
reach 21.
i. A is validating life
ii. Any child of As will necessarily reach 32 within 21 years of As
death
iii. Remainder is valid
d. Ex: O transfers a sum in trust for A for life, then to As first child to
reach 25. A has no child of 25 or older.
i. Cannot prove that As first child to reach 25 will do so within 21
years of As death
ii. Because contingent remainder is void, instrument leaves life
estate in A, with reversion in O if invalidated, it will be subject
to rule against perpetuities

4. Can future interest holder, with certainty, take possession or vest

within 21 years of the death of the measuring life?
a. Yes = meets the RAP
b. No = conveyance is void
c. Person considered fertile at any age

Interest cannot violate rule if it is vested upon creation

o Interest cannot become possessory for very long time, but this
does not matter if it is vested
Ex: O conveys to A for life, then to As children for their
lives, then to B.
Bs interest is valid because it is vested in interest
now (B has vested interest)
Future interests retained by transferor are not subject to Rule Against
Perpetuities
o Ex: O conveys Blackacre to School Board as long as premises are
used for school purposes.
O has possibility of reverter exempt from Rule because it
can go back to original owner
o Ex: O conveys Blackacre to School Board as long as premises are
used for school purposes, then to A and her heirs.
As executory interest violates Rule it may not become
possessory for centuries
This leaves fee simple determinable in School Board
Exception to Rule:
o Rule does not apply when contingent property interest vests in a
charity when property interest of another charity is divested
Ex: To Yale, but if not used for cinema, then to Harvard.
Rule not invoked because occurring between
charities
39

Reforms
The RAP Today: Reform by Curtailment? 578-92
Symphony Space v. Pergola Properties Inc
Facts: x sold building to P for below-market and P leased back
commercial property for $1/year so X could carry on commercial
operations without tax burden of owning building itself. Deal, however,
included repurchase option, which granted X power to force P to sell
property back to X 1987 1993, 1998, 2003. D replaced X as owner.
Property had appreciated considerably so D sought to exercise option.
P refused on theory that final year specified in option fell beyond 21
year period set forth in Rule
Held: Rule invalidates option
Why: Rule applies against both corporations and individuals.
Repurchase options tent to discourage improvement of property by
current owners, who know the option holder can simply demand
property back at any time. Here, original transaction expressly
provided that option could be exercised at ANY time after 7/1/79 and
provides NO help to D. Mere possibility that Ds interest would vest too
remotely from date of agreement renders that interest void.
Rule: RAP applies to corporations
Co-Ownership and Conflict 594-615 n2
Concurrent and Marital Estates
Tenancy in common each cotenant has separate but undividable
interest in property
o interests of cotenants can be unequal
o interest of each is fully alienable, devisable and descendible
o no right of survivorship; when on dies, his interest passes to his
heirs
o needs unity of possession to create each tenant must have
right to possession of whole property
o creationpresumptive tenancy created by conveyance to more
than one party
o **** when in doubt, court will presume tenants in common
o when cotenant dies interest passes to their estate; tenant in
common gets nothing
Ex. O conveys Blackacre to A and B as TIC
A and B have TIC in fee absolute
If A conveys his interest to C, then B and C are TICs
If B dies intestate, Bs heirs will become tenants in
common with A

40

Joint tenancy have right of survivorship, when on dies, his interest

is immediately equally split and absorbed between surviving tenants
o Not devisable or descendible (unless all agree OR only 1 tenant
is left)
o NOT favored by law; it will be TIC unless Right of Survivorship is
expressly stated
o Creation: 4 Unities
Time tenants must all take interests at the same time;
vest interest simultaneously
Titleacquire title by same instrument; not by intestate
Interestall have equal undivided shared and identical
interests measured by duration; identical or equal interest
in whole property
Possessioneach tenant much have right to possession
of whole property
ex. O conveys Blackacre to A, B and C as JT with
Right of Survivorship
A then conveys his 1/3 interest to D
o B and C each have 1/3 undivided interest as
joint tenants with right of survivorship
o D has undivided interest as Tenant In Common
o IF B dies intestate, leaving H as an heir
C has 2/3 undivided interest as Tenant in
common with D, who has undivided 1/3
interest as tenant in common
H gets nothing because of right of
survivorship

Tenancy by the entirety only in marriage, like JT but with 5th unity
of marriage, includes right of survivorship; no one can act alone, both
owners considered as one person; tenancy by entirety presumed by
any conveyance made jointly to a husband or wife; terminated upon
divorce, cannot be unilaterally severed; immune form creditors of only
one spouse

JT v. TIC
o TIC is favored over JT
o JT requires special language, some states have abolished JTs and any
language that would otherwise create a JT is interpreted as a TIC
Advantages of JT v. TIC
o Probate- judicial supervision of admin of decedents property that
passes to another at death
o At jts deathlike a will but probate of property is avoided; this is
advantage for husband and wife bc probate is costly

41

Community property

Partition division of property held by co-owners, granting each sole

ownership of his sharejoint tenant or tenant in common may demand
partition of property at any time for any reason and court will order physical
division of property OR sale and division of sale proceeds
o Partition in kind: court will order partition in kind unless party can
provide either that PHYSICAL partition is impossible/extremely
impractical OR that physical partition is not in best interest of all
parties **preferred methods by courts, BUT not most common
o Partition by sale: generally impractical physically impossible to divide
most real property (i.e. houses, condos) rural, undeveloped land is
most likely candidate for physical division. After partition by sale, net
proceeds are divided among co-owners in proportion to ownership
interests
Partition
Delfino v. Vealencis
Facts: Property was held as tenancy in common. D lived on portion of
property and operated garbage hauling business form there. P wanted
to develop residential housing tract and sought partition by sale even
though property was capable of partition in kind.
Held:
Why: Partition in kind would be difficult, it was possible and a partition
in sale would materially damage D, depriving her of residence and
business
Contribution and Accounting
Gillmoor v. Gillmoor
Facts: 2 brothers owner land in dispute. Upon death, interests passed
in equal shares to children who became co-tenants. P sought to raise
livestock, but D prevented her from doing so because D was grazing
his livestock to max capacity of his property. P sued for accounting
damages for Ds exclusive use of property and partition
Held: When co-tenant makes clear demand to use land that is in
exclusive possession of another cotenant and that cotenant refuses to
accommodate other tenants right to use land, tenant has established
claim for relief
Why: co-tenant may sue for his share of rents and profits
(during ousting) if he has been ousted from possession of
common property. D exercises exclusive use/possession and
excluded P from common properties, but this is NOT sufficienttenant
in common has right to use and occupy entire property held in cotenancy without liability to other co-tenants. BUT when a co-tenant
ousts another co-tenant, he violates co-tenants rights. Co-tenant must
show that other co-tenant used property to exclude himrequires act
42

of exclusion/use that prevents him from exercising rights in property. P

could not graze livestock on land with D because this would have led to
overgrazing and depleted value of land.
Note: ouster = one co-owner precludes other from using. Usually
insufficient to prove that one party has expanded through premises
and left no room for othermust show that other party has taken
affirmative step to keep other out i.e. failure to answer request to be
let in
Accounting = cotenant has been ousted, so state must protect his
property interest and hear grievances. Cannot just sue for accounting,
must have cause preceding accounting.
Severance to destroy joint tenancy, there must be a transfer of title; JT
can be severed if unity is destroyed; a JT can sell or transfer his interest in JT,
which will break the unity of time; severance changes JT to TIC
Harms v. Sprague
Facts: Joint tenants, one mortgages his interest in his property before
his death. Plaintiff cotenant claims ownership through right of
survivorship, defendant claims right as tenant in common through
mortgage lien
Held: Mortgages does not sever joint tenancy and the mortgage does
not survive the joint tenants
Why: a lien on joint tenants property interest will not effectuate a
severance of joint tenant, absent conveyance by a deed; when P died,
mortgage on his interest wasnt collectable because his share of joint
tenant disappeared and was absorbed by remaining cotenant
Mortgages: interest in real property used to secure debt;
o Mortgager home purchases, person who borrows $
o Mortgagee bank, lends $, holds security interest
o Two theories
Title theory: minority, bank has title, not you, but the
bank cant sell title; does destroy JT mortgage is
conveyance of legal estate vesting title in mortgagee and
creating TIC
Lien theory: majority claim on my assets but I retain legal
title, legal claim on property interest.
Lien: right to force sale
______________________________________________________________________________
___________________________
LEASES, COVENANTS, CONDOMINIUMS AND OTHER ENTITY PROPERTY
Is a lease Property or is it a contract? 646-60
Separating Management and Possessory Rights

43

Leases transfer of possessory right, including right to exclude, to a tenant

leases convey property interest and contain a number of promises
independent v. dependent covenants
Independent : property, breach by one party of one covenant does not
relieve the other party from fulfilling his end of the deal
Dependent: contracts, if one party breaches, the other does not have
to fulfill its obligations
o Distinctions among licenses, leases and life estates
o License- allows you to act that otherwise would be a trespass
o Leaselandlord/tenant relationship
o Life estatefreehold interest
look to
intent what did the parties want when the interest
was created?
Exclusivity of possessionthe more exclusive it is,
the more it resembles a lease or a life estate
Degree of control/retain by granting party the more
control by the grantor the more likely it is to be a
license or a lease
Lease types
Terms of years lease for a fixed, predetermined period of time,
which ends automatically and requires no notice by the parties to
terminate usually for one or more years but can be shorter
Periodic tenancy lease for CONTINUOUS, successive intervals that
roll over from period to period (usually year-to-year or month-to
month); lease is not terminated unless tenant or landlord gives notice
prior to termination. A party must notify the other party at least one
period in advance in order to terminate
Tenancy at will a tenancy of uncertain duration normally for some
purpose other than rent either party can terminate at ANY time for
ANY reasonvirtually contract free because it hasnt specified any
terms
Tenancy at sufferance normally arises when a tenant holds over
leaving them better than a trespasser but still subject to ejectment
**normally a lease must state
1. identity of the parties
2. description of the premises
3. statement of the term or duration
4. amount of rent if a lease is more than a year it must be in writing if
not it is invalid (statute of frauds)

44

Independent Covenants Model

Paradine v. Jane (medieval case)
Facts: P leased land to D. D unable to pay rent, said that German army
had ejected him from his land making him unable to obtain the land
profits that would allow him to pay rent
Held: D still has to pay rent
Why: at the time the lease was formed, D posed no question as to
contingencies such as army invasion. Given lack of discussion, it must
be assumed that D intended to bear any risk of occupying the land. D
should bear the risk of loss if he is to reap the profits of the
land
Smith v. McEnany
Facts: P sued after D refused to pay rent following construction of a
wall that intruded upon the land that D had rented. Wall was built with
Ps permission and P knew at time it would result in intrusion.
Held: Intrusion fully discharges D from obligation to pay rent even
though intrusion limits access to only part of land
Why: implicit requirement of lease is that it conveys full extent of land
negotiated by parties. If enjoyment of any part of land is interrupted
lease is discharged from obligation to pay. Landlord cannot withdraw
part of leased land and attempt to legitimized withdrawal by reducing
rent proportionally. Encroachment counts as eviction so tenant
does not have to pay! If landlord evicts tenant, tenants covenant to
pay rent is suspended as long as eviction lasts.
o Does not apply to other tenants who may disturb quiet
enjoyment but landlord does have a duty to keep nuisances off
the premises
o Dependent covenants require mutual action by both parties and
are dependent on the execution of the corresponding covenant
by the other party; failure to perform one of the covenants can
break the obligation of the other party to fulfill its duty
______________________________________________________________________________
___________________________
Duties of the tenant
Duty to pay rent (Paradine, McEnamy) unless LL has breached the
implied warranty of habitability, constructively evicted the tenant
from property by breach of quiet enjoyment or actually evicted the
tenant
Duty not to commit waste linked to law of fixtures: removal of chattel
once it becomes a fixture is voluntary waste and not allowed. Addition
of chattels by tenant can be removed when tenant leaves if their
removal does not cause substantial harm to the premises (Stain v
Green)
45

Duty to make minor repairskeep premises in reasonably good repair

Duties of the Landlord

Deliver possession if there are previous tenants still on the premises,
it is the liability of the landlord to make it so that tenant can take
actual physical possession of the premises
Implied covenant of quiet enjoyment landlord must not interfere with
tenants possession of the leased property such that it will affect the
tenants quiet enjoyment of the premises; dependent covenants that
can trigger constructive eviction
Implied warranty of habitability dependent covenantif broken,
tenant is exempted from paying rent, or may sue for specific
performance of repairs. Nothing in common law but has bas in
contract law (warranty of merchantability) Landlord has continuing
duty through the duration of a lease to make repairs and provide
tenant with a habitable living area that would meet the expectations
of the average lease/tenant in the area
Extending the independent covenant model of lease
Blackett v. Olanoff
Facts: D vacated apt. owned by P. Landlord rented nearby property as
bar, noise from bar was loud and disturbed tenants. Landlord warned
bar tenants to keep noise down as they were obligated to do under
lease. Tenants raised constructive eviction defense in action for rent
saying that right to quiet enjoyment was impaired by landlord.
Held: Constructive eviction may be found where landlord permits 3rd
party to substantially impair rights of other tenants
Why: must be some action by landlord himself that causes constructive
evictionintent to deprive tenants of rights is not required. When a
landlord causes substantial interference with the enjoyment and use of
the leased premises, the tenant may claim constructive eviction
Lease v. Buying
- Lease: fixed cost, not fixed income, dont have the credit
- Buying: long term, substantial financial obligation, maintenance (snow
shoveling etc, liability)
Commercial Context
Medico-Dental Building Company of Los Angeles v. Horton and Converse
Facts: dispute arose as to restrictions of the types of tenants that a
landlord can take on. Horton operated pharmacy in building owned by
medico dental. Lease provided that medico would not lease any part of
building to tenant that might set up competing pharmacy. Horton
stopped paying rent

46

Held: (1) the covenants are mutually dependent (2) restrictive

covenant was breached (3) the breach affected a substantial part of
the consideration (4) Horton did not waive his right to use
Why:
Javins v. First National Realty Corp.
Facts: D is tenant of P. D admits to not paying rent, but claimed he was
relieved from doing so because of 1,500 housing code violations that
exist on premises and P has not maintained apartment
Held: Violation of housing regulations may discharge Javins from
obligation to pay rent.
Why: Modern tenant seeks more from lease than outdated common law
conveyance of interest in land seeks well-known package of goods
and services. Modern housing regulations imply into every lease a
warranty of habitability breaching warranty by landlord will justify
suspension of tenants covenant to pay rent. Warranty is co-extensive
with scope to housing regulations. On remand, must determine
whether alleged violations existed during period for which past-due
rent is claimed and what portion if any of tenants obligation to pay rent
was suspended by landlords breach
Note: Baseline to determine implied warrant of habitability is housing
codes in that cannot sell/rent anything below codes
Note: establishes two doctrines for leases
o Leases are contracts with mutually dependent covenants
o Implied warranty of habitability is mutually dependent
covenant
Note: if housing violations, instead of paying rent, tenant should create
escrow account (trust applied to landlord tenant action) then tenant is
still in good standing because is paying rent, but landlord is not
received $$$. If landlord does not make repairs, will not $$ and tenant
will get all $$ back. This is better option than self help/withholding
rent!
Forfeiture clauses, the different covenants and implied warranty of
habitability 665071,677-95 n3 recommended 698-702
Forfeiture clauses: if tenant violates terms of lease they forfeit their
interest in lease v
The consequences of the implied warranty of habitability
Theory
______________________________________________________________________________
___________________________
Common interest communities 743-61 n5
47

COMMON INTEREST COMMUNITIES

Tribulations of Shared Governance
Condos v. Co-Ops
Condos BETTER THAN CO-OPS, command higher price than coops
for otherwise similar units. Right of possession NOT right of
survivorship
o Requirement of board approval for purchase is uncommon and
not demanding, so price is not driven down in the same way as
coop
o Each unit owner has fee simple in unitentire value is subject to
financing in same way as free standing home or other real estate
Typical covenants in condo
Promise respecting your use(s) of your property,
covenant
o What can you keep on patios?
Easements: promise to a third party that they are
allowed to use your property (shared areas) waiving
your right to exclude
Cooperative corporations are typically the ones in co-op, corporation
then leases to individual tenants , the tenants are the share holders in
this corporation, owners create declaration of all rules and regulations
that will apply
o Reason for coops is to provide ownership with range of latitude
not available if renting
o Purchasers obtain separate financing for unit, secured by shares
in associationbut common facilities are often subject to
mortgage for which all shareholders are responsible
o Makes housing a private association can be picky about who
will live in building
Since all residents bear portion of risk of default by any
single shareholder, coops typically impost severe financial
restrictions on who can buy in
Potential purchasers must demonstrate that they have
large amounts of liquid investment assets before allowed
to purchase this limits number of potential purchasers
drives down price
o Difficult to exit because must sell shared (difficult because must
sell to someone who meets criteria and is approved)
Nahrstdet v. Lakeside Village Condominium Association
Facts: P lived in Condo owned by D. Declaration set forth restriction
against pets. P has 3 cats, when D learned of cats, told P to remove
them and charged monthly find for their presence. P sued on theory
that restriction should not be enforced because cats were confined to
condo and did not bother any other residents
48

Held: Covenant was reasonable because it was rationally related to

health, sanitation and noise concerns legitimately held by residents
Why: reasonable or unreasonableness of a condo use restriction is to
be determined not by reference to the facts that are specific to the
objecting homeowner, but by reference to the common interest
development as a whole ***assumed reasonable if in the deed
Note: giving deference to use restrictions protects general
expectations of all condo owners when HOA determines that
homeowner violated use restriction it must do so in good faith not in
arbitrary manner. To determine if term is reasonable, must ask whether
it will make market price go up or down. If it destroys value of house,
term is unreasonable if it makes value go up, term is reasonable.
Restriction was reasonable because it did not violate fundamental
public policy, was not wholly arbitrary, did not impose burden that
outweighed any benefit and P had constructive notice of restrict.
Problem of Shared Governments
Inefficient decisions
o Common interest community
Interests of members will be different, so many members
will not receive what is best for them
o Landlord
Landlord generally makes decisions that will affect
occupants of building as groupmakes decisions that are
efficient and will maximize aggregate rent he may charge
Transaction costs of decision making
o Common interest community
Substantial transaction costs associated with process of
making collective decisions (time devoted to meetings and
other governance activities)
o Landlord
Single individual acting as landlord can collect information
and make decision with less expenditure and effort

Trusts 778-94
Separating Management and Nonpossessory Interests in Property
Trustsa vehicle of wealth; a fiduciary relationship with respect to property
-- separated property interests into ownership and governance; contract
elementremoving sticks form the bundle; trust/lease/licenseduck-billed
platypus

49

Beneficiary/done(s) ultimately has future interest in the trust, but

has no present ownership rights of the trust; only gets what settlor
decides to pass on to him
Settlor/founder/donor grants or conveys the property (in fee
simple) to the trust
Trustee/fiduciary manages and controls the trust (in fee simple) for
the benefit of the beneficiary
Duties of trustees
Avoid conflicts of interest with the estate
Duty of prudent investing act for the benefit of the
trust/beneficiary
Invest money wisely; maximize the income from trust corpus
or principal on periodic basis.

Trusts spendthrift trust

Broadway National Bank v. Adams
Facts: Adams was the beneficiary of a trust created by his brother. His
brother specified that Adams was to receive periodic payments
consisting of proceeds from the trust but that the trust res was to
remain inaccessible to creditors. Adams, being something of a
spendthrift, evidently accumulated a considerable debt with
Broadway. Broadway then sued for payment of the debt, contending
that the trust res itself should be used to pay
Tl;dr: man left money for his brother in a trust, creditors wanted access
to the money court held the creditors could not access money in a
trust
Held: Trust res should not be so used (cant access the trust)
Why: Property of donor is not subject to the debts of his beneficiary
until the property is transferred in title to the beneficiary
Rothko v. Reis
Facts: P was settlor who died and left all of his paintings to 3 executors
who were in charge of handling the estate in a reasonable manner for
his beneficiaries. The 3 trustees quickly sold all the artwork below
market value to a company that one trustee owned, which in turn sold
them for a huge profit. The other trustees made no action to stop this
obviously fraudulent act
Held: ct. found that one trust was in breach of his fiduciary duty to
avoid conflicts of interest and all were liable for not intervening to act
in the best interest of the trust;
Why: required to apply diligence and prudence to care and
management of the estate assets and affairs as would prudent persons
of discretion and intelligence

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THE LAW OF NEIGHBORS: EXCLUSION, GOVERNANCE,

RIGHTS & REMEDIES
Nuisance and Trespass: Delineating the Boundary 938-949 n.6 960-966
Nuisance: a substantial, unreasonable and intentional non-tangible/non
physical interference with anothers quiet enjoyment of their land; the last
legal resort when servitudes of zoning do not remedy
- R2d 822 intentional and unreasonable, on unintentional and
otherwise actionable under rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions of activities
o Unreasonableness typically a balancing test between
benefits and harms of an act
o Public nuisance nuisance must be such that it threatens or
interferes with the right of enjoyment of citizens as part of the
public health, safety, and comfort.
Typically must easier to gain injunctive relief
Sue in public nuisance to vindicate RIGHTS IN COMMON
o Private nuisance nuisance only affects an individual or small
number of people, typically making it harder to get injunctive
relief; more likely to get damages
Spillover one person using their property to the detriment of others
Nuisance
Adams v. Cleveland Cliffs Iron Company
Facts: Mine appealed a decision giving townspeople living near and
iron mine damages from action for trespass and nuisance against the
mine for the dust, noise and vibrations from the mine.
Held: Reaffirmed the traditional requirements for a cause of action in a
trespass and held that the law of trespass in MI did not cover airborne
particles
Why: To prevail in nuisance, P must prove (1) significant harm resulting
from Ds (2) unreasonable interference with the use or enjoyments of
the property. Dust particles do not normally occupy the land on which
they settle
*** Test to demarcate nuisance and trespass
o Was intrusion on or off ps land?
o Was harm to land direct or indirect?
o Was invasion by tangible or intangible matter
o Did intrusion deprive p of possession or merely use and
enjoyment of the land

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*****courts are reluctant to find a nuisance where the intrusion

is purely aesthetic however, courts have been more receptive
to depressing effects of funeral homes and graveyards

Property Rules, Liability Rules and Remedies

Calabresi & MelamedComparison of Entitlement Protecting Rules

Property Rule entitlement can only be purchased from owner in a
voluntary transactionCANNOT change hands UNLESS there is a willing
seller
Liability Rule entitlement can be taken or destroyed by force, subject
only to ex post liability
Inalienability transfer forbidden even with a willing buyer and a willing
seller. Less common than property and liability rules
Ex. Sale of organs
Rule 1: Court enjoins defendant as a nuisance/trespass (property right)
Rule 2: court refuses injunction permitting the polluters conduct if the
polluter pays resident damages (liability rule because it allows it so long as
damages are paid)
Rule 3: court finds for polluter and provides resident NO REMEDYnon suit,
plaintiff loses full stop (property rule, mandatory and it is not monetary)
Rule 4: court finds polluters conduct a nuisance/trespass but enjoins only
on condition that resident pays polluters damages lost productivity that
the defendant would have to absorb= damages from residents (Spur v. Del
Webb)

Entitlement goes to
plaintiff/resident

Entitlement goes to
defendant/polluter

Property Rule (two

willing parties)
interference with
possession
Rule 1 Court enjoins
defendant as a
nuisance/trespass
Rule 3court finds for
polluter and provides
resident NO REMEDY,
plaintiff loses full stop

Boomer v. Atlantic Cement Company Inc.

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Liability Rule (one

willing party)
interference with quiet
enjoyment
Rule 2court refuses
injunction, permitting
polluter/ds conduct if
the polluter pays the
resident damages
Rule 4 court finds
polluters conduct a
nuisance/trespass but
enjoins ONLY if resident
pays polluters damage
resident can put a
stop on the polluter if
they are willing to pay a
price.

Facts: Cement plant, vibrations, smoke, dust etc that is blowing off
plant, P brought nuisance action against D claiming damages and
injunction due to dirt and smoke interfering with property rights.
Procedural Posture: At trial court, nuisance found, temporary damages
were allowed but injunction denied
Held: Trial court was wrong in not granting injunction
Why: growing public concern for the control of air pollution but court
should not make public policy decision
**Court balances the equities between the two parties, refusing to
close down a large cement plant even though it creates a nuisance but
allowing neighbors to recover present and future damages created by
the nuisance.
Spur Industries, Inc. v. Del Webb Development Co.
Facts: Spur has been operating feedlot for cattle. Webb began
developing residential area. Stench and flies surrounding feedlot
eventually interfered with the marketability of Webbs homes to such
an extent that an appreciable part of the development became
unsellableresidents complained of nuisance generated by the
feedlots
Tl;dr: Web sued Spur to enjoin spur from operating a feed lot because
they said it was a nuisance
Held: Spur should be stopped from having feedlot (enjoined). Webb
should indemnify Spur (Webb should pay Spur cuz they have to move)
Why: Relevant statute specifically states that the presence of flies
constitutes nuisance feed lots are a nuisance BUT Webb KNEW the
feedlots were there and developed anyways so they should have to
pay Spur for making them move
Campbell v. Seaman
Facts: Ds brick kiln when burning coal emits sulfur dioxide that kills
most downwind vegetation, injures those that inhale it. Using wood
instead of coal produces inferior bricks. Ps dwelling house was costly,
ornate and built long after brick yard was in operation
Held: Injunction for P
Why: COULD say rule 2 or rule 4 dont want to end up forcing poor
people into areas with shitty conditions

R2d Torts 822

o One is subject to liability for a private nuisance if, BUT ONLY IF,
his conduct is a legal cause of an invasion of anothers interest
in the private use and enjoyment of land and the invasion is
either intentional and unreasonable
R2d Torts 827 Gravity v. Utility

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o In determining the gravity of the harm from an intention

invasion of anothers interest in the use and enjoyment of land,
the following factors are important
Extent of the harm involved
Character of the harm involved
The social value that the law attaches to the type or use or
enjoyment invaded
The suitability of the particular use or enjoyment invaded
to the character of the locality
AND the burden on the person harmed of avoiding the
harm
Default standard for injunctive relief in federal court
Plaintiff must demonstrate
o That it has suffered an irreparable injury
o That remedies available at law, such as monetary damages are
inadequate to compensate for that injury
o That considering the balance of hardships between the plaintiff
and defendant a remedy in equity is warranted
o That the public interest would not be disserved by a permanent
injunction
***** the decision to grant or deny permanent injunctive relief is an act of
equitable discretion by the district court, reviewable on appeal for abuse of
discretion

Easements and other Servitudes 982-90, 1013-21

Servitudes: contracts that run with the land; current and subsequent
landowners must abide by servitude; servitudes are supposed to work out
conflicts ahead of time
- Competitor to nuisance law
- R3d 3.1 Creation of servitudes: servitude is created as provided in
restatement is valid unless its illegal or unconstitutional or violates
public policy; servitudes that are invalid because they violate public
policyincluding but not limited to
o servitude that is arbitrary, spiteful or capricious
o one that unreasonably burdens a fundamental constitutional
right
o one that imposes an unreasonable restraint on alienation
- variations of servitudes
o easements contract in which owner agrees to waive his/her
right to exclude certain kinds of intrusion by another
conveys right to a particular USE of land, not to possession
of land
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one stick of the bundle

ALWAYS runs with the land
type of property right, even though they convey only
delimited use rights
in rem effect 3rd parties may not interfere with the
performance of rights under an easement; valid easement
gives rise to general duty on part of all the world not to
interfere with the easement
irrevocable
attached to the property; alienable with the property but
NOT independent of it
vest a rightexclusive right and privilege to maintain
AFFIRMATIVE EASEMENT permits the easement
holder to perform some affirmative action on the
land of another that would ordinarily be a trespass or
nuisance
NEGATIVE EASEMENT permits the easement holder
to demand that the owner of the burdened land
desist from performing certain actions (interfering
with airflow, blocking sunlight)
o Fountainebleau Hotel v. Forty-Five Twenty Five
EASEMENT IN GROSS easement flowing to a person
and not to a dominant estate
o A grants B easement in gross to fish on As
land; benefit of the easement belongs to B
personally; if B sells land, he retains the right
to fish but the purchases has no right to fish
unless she establishes new easement
EASEMENT APPURTENANT easement that belongs
to another parcel of land
o ex. Whiteacre and Blackacre are adjacent
properties; whiteacre owned by A, Blackacre
owned by B; A grants B easement appurtenant
for B to walk through whiteacre to get to
Blackacre; thus easement appurtenant belongs
to Blackacre and is carved out of white acre
benefit of easement belongs to B
because he owns Blackacre
benefit of easement belongs to a
because she owns white acre
Blackacre is dominant tract; whiteacre is
serviant tract

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If b sells Blackacre, whoever buys it now

has the right to easement; b retains no
right if it is sold

o license with a grant

o profit a prendre profit similar to an easement in gross; right to
enter on land of another in order to extract something of value
wood as timber, fruit from trees or natural gas; used to permit
extraction of surface minerals; English common law; governed by
same rules as easement appurtenant
o covenants legal obligation imposed in a deed to real property
to do or not to do something
a contract in which owner agrees to abide by certain
restrictions on use of his/her land for the benefit of one or
more others
governance mechanisms
only sometimes run with land
less property; more promises to use the land in a certain
way
does not give right to rights against third parties
in personam more of a contract right
*****must be in writing
termination
can be released or extinguished by deed/statute of
fraud writing
can be merged out of existence when all burdened
estates come under common ownership
abandoned by prolonged and/or regular nonenforcement
o equitable servitudes
- - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------Easements easements contract in which owner agrees to waive his/her
right to exclude certain kinds of intrusion by another
o conveys right to a particular USE of land, not to possession of
land
o one stick of the bundle
o ALWAYS runs with the land
o type of property right, even though they convey only delimited
use rights
o in rem effect 3rd parties may not interfere with the
performance of rights under an easement; valid easement gives

56

rise to general duty on part of all the world not to interfere with
the easement
o irrevocable
o attached to the property; alienable with the property but NOT
independent of it
o vest a rightexclusive right and privilege to maintain
AFFIRMATIVE EASEMENT permits the easement holder to
perform some affirmative action on the land of another
that would ordinarily be a trespass or nuisance
Right NOT to cross
NEGATIVE EASEMENT permits the easement holder to
demand that the owner of the burdened land desist from
performing certain actions (interfering with airflow,
blocking sunlight)
Right TO cross
Fountainebleau Hotel v. Forty-Five Twenty Five
EASEMENT IN GROSS easement flowing to a person and
not to a dominant estate
A grants B easement in gross to fish on As land;
benefit of the easement belongs to B personally; if B
sells land, he retains the right to fish but the
purchases has no right to fish unless she establishes
new easement
EASEMENT APPURTENANT easement that belongs to
another parcel of land
ex. Whiteacre and Blackacre are adjacent properties;
whiteacre owned by A, Blackacre owned by B; A
grants B easement appurtenant for B to walk through
whiteacre to get to Blackacre; thus easement
appurtenant belongs to Blackacre and is carved out
of white acre
o benefit of easement belongs to B because he
owns Blackacre
o benefit of easement belongs to a because she
owns white acre
o Blackacre is dominant tract; whiteacre is
serviant tract
o If b sells Blackacre, whoever buys it now has
the right to easement; b retains no right if it is
sold
EASEMENT IN ESTOPPEL like in contract terms, an
easement user relies on servient owners permission to use
land for access; once user has made improvements and
invested time and money, the license is no longer

57

revocable and becomes easement to keep the user from

suffering unjustly
So licenses can turn into easements if theres been
detrimental reliance
Runs with land like a normal easement
Creation of easements
o Prescription by satisfying the elements of adverse possession
Continuous, open, actual and hostile use, but not entirely
exclusive (ex. Shared driveway); much like adverse
possession but easements not possessory
o Implication (reservation) implied from previous or existing
use; reserved by grantor who withholds it (expressly or impliedly)
as an interest carved out of granted deed
Use must be apparent at the time tract was divided
Parties must expect the easement to continue any division
because of its reasonably necessity (based on cost and
difficulty of alternatives) to the dominant lands use and
enjoyment
o Necessity implied easement for the LAND LOCKED property
with absolutely NO other means of access to public roads or
utilities ***strict necessity
o Grant (conveyance) if agreed for more than one year, must
be in writing to meet statute of frauds
Baseball publishing
Termination of easements
o Released can be released or extinguished by deed
holder of easement releases it back to burdened party
o Merged can be merged out of existence when dominant and
serviant estate come under common ownership
o Adversely possess/foreclosedcan be adversely possessed
/foreclosed by exclusion
Owner of burdened estate can adversely possess to get it
back
o Abandonedcan be abandoned by prolonged non use
has to be intentional conduct that leads to alienation of
interest
relinquish call claim of title
abandonment of servitudes are non-enforceable

Baseball Publishing Co. v. Bruton

Facts: D gave permission through a letter signed but not sealed to
post a sign on a building for $25 a year. P sent $25 to d for 3 years.
After 3 years D had sign removed, P sued for specific performance

58

Held: That the agreement was an easement and specific performance

was appropriate
Why: wasnt a license because it wasnt inherently revocable, wasnt a
lease because it wasnt possessory, was a grant of an easement.
o Grant of easement v. license an oral agreement (neighbors
talking by the fence) for a neighbor to have a right-of-way on
anothers property creates a revocable license, not an easement,
because latter must be in writing; easement is non-possessory
interest, whereas with license, no interest is conveyed
Creation of easements
Fontainbleau Hotel Corp. v. Forty-Five Twenty Five (negative easementspite
wall)
Facts: P hotel sues neighboring D hotel who is in the process of building
a 14 story addition for a negative easement (burdened land requesting
person to desist) by implication or prescription for the sunlight and
airflow (claiming that wall will block sunlight and airflow)
Held: recognized duty of neighbors not to take actions that will injure
the lawful rights of another, but found that P had no legal right to force
a negative easement on D to maintain sunlight and airflow
Why: when a structure serves a useful and beneficial purpose, it does
not give rise to a cause of action, either for damages or for an
injunction under the maxim even though it causes injury by cutting
off lightregardless of the fact that the structure may have been
erected partly for spite.
-------------------------------------------------------------------------------------------------------------------Land Use Planning: Private 1025-46; recommended 1046-54
COVENANTS
Covenants, Conditions and Restrictions (CCRs)
- Owner sovereign bundle of sticks and the CCRs severely limit the
number of sticks
- Fee simple sorta fee simple absolute CCRs=Fee Simple Sorta
- Definition legal obligation imposed in a deed to real property to do or
not to do something; covenants that run with the land are enforceable
on all subsequent owners; often deal with age restrictions, appearance
of dwelling, commercial uses
- Rule CCRs are presumed to be reasonable (presumption of validity)
and will be enforced by courts; only where the CCRs are extremely
unreasonable will a court render them void.
o EXCEPTIONS TO PRESUMPTION OF REASONABILITY

59

Arbitrary difficult to show since most covenants were put

in place for a reason; typical financial
The burdens imposed on land substantially outweigh the
benefits of the restrictions to the community as a whole
also very difficult to prove
Violate statute/public policy (Shelley v. kraemer)
covenant was unreasonable and unenforceable when it
sought to keep a neighborhoods owners as whites-only;
by seeking to avail themselves of the judicial process,
white owners had brought the power of the state to
discriminate on race triggering 14a
Restrict alienability (lauderbaugh v. Williams) covenant on
land was invalid because it was unreasonable and too
broad for restricting alienation of property unless voted on
by the entire neighborhood property owners association

Equitable Servitudes
Tulk v. Moxhay (London square, houses surrounding square)
Facts: P sued D for attempting to violate a restrictive covenant on land
that D had purchase. P owned plot of land in Leicester square as well
as several houses surrounding sq. At some point he sold the land to a
third party on condition that they would leave the square in its existing
condition. 3rd party sold to D whos deed contained no copy of the
restrictive covenant created by P BUT D knew of restriction before
buying land.
Held: D should be enjoined from building in the square
Why: just because land passed through the hands of multiple owners
does not mean that restrictions imposed by original seller becomes
unenforceable by virtue of having gone through multiple transactions
*** because it runs with the land it means it goes with the land, it
doesnt matter if they have a contract with the original person or not
Real Covenants
Neponsit Property Owners Association v. Emigrant Industrial Savings Bank
Facts: D acquired house in neighborhood developed by PP had
attachments in each deed-requiring buyer to pay certain fees for the
upkeep of the common areas of the neighborhood and houses that
didnt pay would result in lien on the owners house. Ds deed had this
attachment
Tl:dr: P sued D over a lien on a house
Held: Association may sue for its enforcement because the covenant
attached to the land.
Why: in order for a covenant to run with the land, covenant must show
that :
o (1) grantor and grantee intended that it should run with the land
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o (2) the covenant touches and concerns the land

o (3) there is privity of estate between the party suing for the
benefits of the covenants and the party that would have to
perform any obligations specified by the covenant
Real covenant Theory
Equitable Servitude Theory 1040
Eagle Enterprises Inc v. Gross
Facts: P owned land that had a covenant attached to it that baum
(predecessor to Gross) would pay annual fee in exchange for water
supplied fro, a well operated by Orchard (predecessor to P). Land
transferred a couple of time before going to gross, no contract
explicitly stated the covenant. Gross refused to pay because he was
already getting water from his own well.
Tl;dr: P sued D for breaching covenant to buy water
Held: covenant should not be enforced
Why: Covenant does not run with land because it doesnt meet the 3
requirements of a covenant that runs with the land.
Land Use Planning: Public 1062-74, 1085-88
Zoning and Other Land- Use regulation
Village of Euclid v. Ambler Realty Co.
Facts: Amber realty owned plot of land in village of Euclid and intended
to develop it for various industrial uses. Zoning laws however restricted
industrial uses over portion of Amber realtys land so land was less
appealing to prospective tenants. Amber realty sued to enjoin
enforcement of zoning laws.
Held: ct found for village of Euclid
Why: enforcement of zoning laws should not be enjoinedlegit policy
interest in zoning. Zones are legitimate exercise of states police power
and are to be upheld unless clearly arbitrary. While it is valid concern
that restrictions imposed by zoning might prohibit certain uses that are
actually harmless to neighborhoods in which they would occur, concern
does not apply here because amber realty has not argued any
particular instance of enforcement infringing on its rights.
Zoning statutory protection on property rights which is subject to change
per the government which typically follows a type of plan based on districts
and intensity levels
- Rational:

61

o Provide comprehensive and efficient plans for development of

areas instead of allowing private litigation (through nuisance
laws) to sort out usage
o Reduces neighbor conflict because certain types of use are kept
segregated from others (residential v. industrial v. commercial
etc.)
o Gives security and certainty to home owners protecting them
from the fear of unwanted types of neighbors and encourages
owners to treat their property as an investment
Comprehensive plan explains and justifies different districts and
designations on map
Ordinance describes permitted uses, exceptions, variances and their
availability

62