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PROPERTY I ATTACK OUTLINE

Property: Bundle of rights with respect to an object (not the thing, but legitimate expectation of rights regarding it), endorsed by
the state, including rights to use, enjoy, possess, and exclude. Also includes right to gift, sell, transfer, will, or destroy. Possession
= 9/10ths of the law.
(Limited right to exclude: Ownership grants right to exclude others, but right is not absolute.
State of N.J. v. Shack Govt migrant aid workers denied entry to farm. Court held: One does not have unfettered right to use
property, especially when it may harm others.
Types of property
Tangible: Things you can physically touch (cars, clothes, jewelry)
Intangible: Not material things (copyrights, patents, stock options)
Real: Part of the land or earth & fixed in time and space (land, crops, buildings)

Origins: How to gain title to land


Conquest: Land belongs to the conqueror. Still in effect - boundaries change in war.
Discovery: Gives exclusive right to settle/possess/govern. Also gave title to the soil allowing British to claim
ownership of Native Am. land in the colonies.
Johnson v. MIntosh: J purchased land from Natives; US later granted M same land. M owned land because Natives only had
right of occupancy, not ownership of the land.
Title by occupancy/capture: To gain possession of property thats unowned and on public land via title by
occupancy (ferae naturae), one must have intent to gain possession and either actual or constructive possession
physical dominion & control.
Actual Possession: Physically taking/touching
Pierson v. Post: Post was on a foxhunt on public land, Pierson (bystander) killed and seized the fox first. Court held one must
have ACTUAL possession. Mere pursuit is not enough. Rule for actual possession ensures certainty, peace and order. Helps avoid
disputes. Also holds social value recognizes worthy efforts/encourages competition.
Constructive Possession: actual possession has not occurred, but may.
1. Pursuer does all they can reasonably do; possession must be a substantial certainty
Ghen v Rich: Ghen killed whale. Went to sea bottom. Resurfaced on beach, but Ellis claimed it.
2. Rationi Soli: owner of land has constructive possession of wild animals on the land
Note The landowner does NOT own (have title to the animal) until its killed/captured.

Property Rights
1. Interference with Business: Owner entitled to damages if one intentionally interferes w/ another's business. Keeble v.
Hickeringill: H purposefully fired guns on K's duck pond to interfere with business.
2. Employment & Benefits: Can have a property right in employment (provided that one has a reasonable expectation of
continued employment) or in benefits (such as welfare, FCC or FAA licenses). Govt cant take away that right w/out due
process.
Board of Regents v. Roth: Roth hired to teach for a year. No tenure. Didnt rehire b/c outspoken on war. No reasonable
expectation of continued employment.
Perry v. Sinderman: Perry worked 10 yrs. on 1-yr. contracts. No tenure but long term policy that after 5-years professors would
be rehired. Had reasonable long-term expectations -- entitled to hearing prior to terminating under due process.
3. Intellectual Property Rights (Copyrights & Patents)
Rule: Requires 1st in time & expenditure of labor/money. Copyright and patent holders can exclude (limited monopoly right).
Property rights in ideas are limited, because it raises prices & stifles competition by excluding others. Cheney Bros. v. Doris Silk
Co.: Cheney designed silk fabric pattern, Doris sold cheap knockoff. C could not stop D from imitating idea.
4. Property Rights of One's Likeness (Right of Publicity): Property right of publicity in commercial value of celebrity likeness
(transferable/survives death)
Newsworthy event exception: One can't control all image rights. Factors v. Pro Arts: Factors had rights to market Elvis'
likeness. ProArts sold poster.

Subsequent Possession
I. Adverse Possession
1. Actual Possession: Acts of dominion a typical owner would exercise w/ respect to property of similar nature/location/character
Constructive Possession: Possession of an entire tract of land specified via color of title, even though only a small portion of it is
actually possessed. Remainder = assumed actually possessed.
2. Adverse & Hostile: Possession is as a true owner -- not subservient (renting, with permission, sharing land use must be exclusive).
Having color of title is considered adverse & hostile (much easier to show acting as true owner w/ deed)
(Maine Doctrine: Rejected (Manillo v. Gorski). Rewarded wrongdoer while punishing good faith mistakes. Gilardi v Hallam A&H
doesn't require actual intent to invade; mistaken belief ok).
3. Good Faith Claim of Right: Mistaken belief about true ownership/boundary.
OR Color of Title: Valid instrument that claims to convey title but fails to do so. Reduces statutory period in some states. Can claim
constructive possession of portions of lot not actually occupied.
4. Open & Notorious: Actual owner must have reasonable ability to determine a trespass occurred

Actual notice: actually knows of the possession (5 sense test).

Constructive notice: a reasonable person would know of possession


5. Continuous: Regularly occupied land for entire statutory period. No abandonment/ouster.

Abandonment: stop possessing as an owner would.

Ouster: Someone taking physical possession of your land as an owner would (acts of dominion &
control) without response from the possessor.

Tacking: Prior A/P can be tacked on to meet Stat. of Limitations


6. Full Statutory Period: Length depends on state (often 10 years). Often shortened for color of title.

Tolling: extension of Stat. of Limits for ppl w/disabilities, insanity, a minor, prisoners, overseas military.

Exclusive: People only allowed to enter property w/ permission of possessor

Krona v. Brett dispute over small 3-foot strip of land between 2 residences.
Marengo Cave Co v. Ross dispute over ownership of a portion of cave.
Manillo v. Gorski dispute over smaller 15 strip of land between residences.
Howard v. Kunto several landowners mistakenly living on one lot too far east.
LE & A/P: LE by defective deed, who meets A/P reqs will gain possession to life estate. Usually cannot A/P remainder holder. Hard to be O&N
to remainder holder.
FSD & A/P: Statute of limits begins the instant the limitation is met.
FS/CS & A/P: Statute of limits for A/P does not start to tick until power is exercised.

II. Acquisition by Derivative Title (Gift)

Inter-Vivos Gifts:

Require: Intent (Donor must intend to make present transfer & delivery of gift; invalid if merely intend to give at death), Delivery (actual or
constructive) & Acceptance (assumed unless rejected).
NOTE: Burden of proof is on donee to show requirements have been met.

Gruen v Gruen: Painting given to son, claimed by step mom at dad's death.

Transfers At Death Can transfer title at death, but only by:

Will

KEY = INTENT!!!!

Court favors alienability (transferability). Will grant broadest estate allowed.

Note: If given a FSD as part of spouses will, one can renounce the will and
automatically claim a share of outright ownership.

Intestacy: Dying w/o a will. Property passes to heirs (A living person has no heirs)

Hierarchy of intestate: Spouse/kids/grandkids > Ancestors (parents) >


Collaterals (all persons related by blood) > Escheat (If dies intestate w/out heirs, decedents real property
reverts to the state)

Actions Between Future Possessory Rights Holders & Life Estate/Leaseholders


Waste: Any material change in the character or condition of property. A cause of action for
damages/injunction brought by the holders of the future possessory rights against life estate holders/leaseholders
for misusing land (doesn't exist for fee owners). All about reasonable interpretation of grantor's intent as to division of
rights & responsibilities.

Permissive Waste Tenant liable to landlord for negligence (omitting to act). Duty to make ordinary repairs, no duty for
big improvements.


Voluntary (Affirmative) Waste: Tenant liable to landlord for intentionally damaging premises, including removing
minerals from property unless previously used for such purposes.

Ameliorative Waste (affirmative waste subset) Change permitted if change increase value of the premises, if there is
change in circumstances, and changes reflects change in nature & character of the neighborhood

Melms v. Pabst Brewing Company: Pabst accidentally buys LE, tears down house in industrial zone to make parking lot.
Remainder holders sue Not actionable waste, ameliorative waste b/c of changed circumstances/increased value of land.
Necessity doctrine: court ordered sale of property by a life estate and other future estate. Two requirements,
must prove BOTH:

Circumstances have changed regarding usefulness or benefit of the land


Best interest of ALL parties to sell

Baker v. Weedon: young widow granted LE with remainder to grandchildren. Interstate soon to be built on the property. Wife
wants to sell now, grandchildren don't. Court ruled although there were changed circumstances it was not best for all parties.
Merger 2 successive estates held by same person merge. If there is an intervening estate no merger occurs.
Destructibility Of Contingent Remainders Doctrine If one party had two estates and the only intervening
estate was a FS/CS then the party with the two estates gained a FSA and the FS/CS was eliminated.
Rule Against Perpetuities No contingent interest is good unless it MUST vest, if at all, not later that 21
years after some life in being at the creation of the interest (is there any chance interest may vest outside life in being
+21 years, if so the interest invalid). Hint If everyone currently alive dies, can interest vest +21 years after? Kill
everyone but class progenitor then kill him Can interests vest more than 21 years after?

Waiver & Estoppel


Prevents enforcement of right of entry (FS/CS) NOT possibility of reverter (FSD). Courts may stretch to find waivers b/c
they hate FS/CSs.
Waiver: Acts showing intent to waive enforcement of the condition in FSSCS. Requires:

General express or implied intent to waive (waived in other similar situations) coupled with an inequitable outcome.
Knowledge of breach & failure to take action within a reasonable time

Estoppel: Detrimental reliance by the holder of the FSSCS, which requires:

A representation by the holder of the Right of Entry,


Reasonable & detrimental reliance by the fee owner
Knowledge of the reliance by the holder of the Right of Entry

Injustice.

Concurrent Ownership
Tenants In Common: Concurrent rights to use, enjoy & possess the ENTIRE property. Each party has an undivided interest in
whole property. Share costs & profits based on percentage of the property they each own. Each can convey their interest freely.
JTWROS: Same as T/C except will substitute. Requires four unities! Partition allowed.
Four Unities: (time, title, interest, possession) interest must vest at same time, must be gained via same document, interests
must be same (not an LE & Remainder), same rights of possession.
Severance of Four Unities: Automatically causes the JT to revert to a T/C. Easily done by temporarily transferring title to a
straw man who transfers it back, breaking four unities. In CA, can be done simply by transferring land to yourself in a new deed.
Ex: Riddle v Harmon: Wife conveyed interest to herself, inter vivos transfer enough to sever JT.
Note: If more than two JTs, one JT's transfer of property only breaks JT for them, not for remaining JT's.
Mortgages, Liens & Severance of JT Whether mortgage severs JT depends on Lien State/Title State. Lien Statedeed stays
w/ borrower, lender places lien on prop using mortgage instrument/doesn't sever JT. Title State lending institution holds title to
prop in name of borrower through Deed of Trust/severs the JT
Harms v Sprague: Harms brothers co-owned land. Brother mortgaged to pay for other property
Tenancies By The Entireties Similar to JT, except only for married people. Cant be unilaterally severed, only by dissolution
or joint conveyance. No partitions allowed.
Sawada v. Endo: Endo struck another with his car, owned a home in T/E with wife.
Community Property - Property acquired by time, skill & effort during marriage becomes community property.
Gifts/Inheritances/Pre-Marital Property not included. Equal rights to use, enjoy possess. Each have 50% undivided share in the
whole. Neither party can convey their interest independently. Non-partitionable unless both parties agree. Joint consent needed
to transfer real property, however either party can transfer all personal property. Each is liable for the community obligation of
their spouse. Can only be dissolved by joint consent/dissolution of marriage. Can change separate property to community
property and vice versa (with both party's consent).

Equitable Distribution In states that dont have community property, property acquired during the marital partnership
equitably distributed between the couple. Most states this is 50/50 split. Some courts evaluate factors of the relationship and
make a determination as to proportions (fault may play a role).

Partitions
Proceedings between co-owners who cant agree as to use of property/market-based sale. Partition is always an option and it cant
be contracted away.
ONLY allowed for: Tenants in Common or JTWROS. Partitions are NOT allowed for Tenants by the Entireties or Community
Property!
Partition-In-Kind: Court simply subdivides land amongst owners. Very unusual now, used to be default.
Delfino v Vealencis: Co-owned lot, part of which used for refuse business.
Partition-By-Sale: Forced sale of property/proceeds divided among owners. Modern preference. Owners who make
improvements reimbursed ONLY for increased value of land/cost of contribution (whichever less). Johnson v Hendrickson: Six
owners, one is living in the house and also owns adjacent land.
Co-Owners Accounting: Co-owners entitled to share of the net profits from rental. If ouster, then the co-owners are entitled
to portion of FMRV rent. Must be actual ouster (change locks & refuse to give key, etc.)
Spiller v. Mackerath: Co-owner uses entire building & changes the lock (never asked about key).
Swartzbaugh v Sampson: Co-owning couple. Husband leases walnut grove to boxing promoter.
Lease by one party is valid, even without the consent of the other party. However it does not abridge the rights of the abstaining
party to use, enjoy, etc, the property. Co-owners cant take their % of minerals from prop. Any profits from resources must be
share with other owners. Co-ownership a partnership, with certain fiduciary duties. Co-owners must disclose. If a co-owner has
knowledge their land will soon raise in value and buys-out the other co-owners w/o disclosure, that co-owner is required to share
the profits realized.
Co-Owners Contributions: Generally parties are not required to split the costs of repairs/improvements which are difficult to
determine (and the parties may not wish to make such repairs/improvements). If a co-owner is in full possession of the property,
they are required to pay for all ordinary expenses.
Court Actions for Accounting & Contributions Courts generally dislike. If parties can't agree should simply sell/partition. If action for
accounting of profits, then maintenance & improvement costs can be used to offset profits. Direct actions for expenses/repairs are rare &
generally wont be allowed as other owners may not have wanted em. Repayment only if improve INCREASE value of property (payment of
taxes/mortgage). Repayment for cap improve ONLY for increased value of land/cost of contribution (whichever less).

Easements: Limited right to use land of another for specific purposes. Not permission, the LEGAL right.
Servient Land: Land that is burdened/encumbered. Sale doesnt terminate easement.
Dominant Land: land benefited by the easement. Usually transfers with the dominant property.
Appurtenant: Easement created to benefit/enhance another prop at expense of burden upon servient land. If
easement beneficial to nearby/adjacent parcel, usually interpreted as appurtenant easement, unless specific language to
the contrary. Law construes in favor of appurtenant easements.
In Gross: Easement created to specifically benefit another owner/group of owners. May be either alienable or
inalienable depending upon the intent of the grant. Absent specific language, generally not transferable (i.e. to X
grants an easement to A and his successors).
Note: Commercial personal easements are usually transferable but limited to the scope of the grant.
Licenses: Revocable permission to use land of another in way that would normally be trespass.
License coupled w/ an Interest (unrevokable) license to enter property for interest of chopping trees.
Estoppel (unrevokable) Licensee reasonably relied upon license to detriment, & licensor knew.
Positive Easement: Right to do something on the servient parcel. Use a road, lay utility lines.
Negative Easement: Right to prohibit uses of another's land. Common law concepts limited the types of negative easements to
Light, Air, Support. No easements for land use planning (only residential purposes).
Easements vs. Fees No magic words, granting a right of way not enough to show intent of easement. Determination based
upon INTENT, and circumstances. Did grantee pay a high price for it? (prolly a fee then), did owner act as a Fee owner after
grant. If completely ambiguous, interpreted as easement and not a fee.

Easement by Express Grant: Deed by fee owner granting an easement to another/parcel.


Easement by Express Reservation: D owns lot 1 & 2. D conveys lot 1 to Sal and in the deed states Reserving for benefit of lot
2, and easement over lot 1. Usually used if person sells land to another, while RESERVING right of easement in themselves.
One can also reserve the right in another if intent is clear.
Willard v First Church of Christ Scientist: Land sold contained easement to a third party church.
Easement by Implication (From Previous Use): Implied on the basis of apparent & continuous use of a portion of the tract
when the tract is divided (quasi-easement). Even though the parties didn't sign an easement agreement, the circumstances are
such that they unequivocally intended to do so.
Requirements: Unity of title (easement intended to be created at the time of severance), Pre-existing use, Apparent (Visible)
actual knowledge or info a reasonable landowner would discover on prudent investigation, Continuous & Permanent, Necessity
(some courts allow reasonably necessity if it was implied in a grant to another party, generally always strict necessity if it is an
implied reservation). INTENT!
Van Sandt v. Royster: Three contiguous lots sold in fee actually had easement for sewer.
Easement By Necessity: Strictly necessary to enjoyment of claimants land & necessity arose when dominant parcel was severed
from servient parcel. Requirements: Unity of title, Strictly Necessary (must be essential to use/enjoyment of prop). Intent
meaningless. Necessity must be present AT TIME prop severed. Only exists when necessary (if landlocked estate finds alternate
way of egress, then easement terminates). Burden of proof upon party seeking easement to show easement a necessity at time
parcels were severed. If servient & dominant lands merged, implied easement terminated and won't be automatically assumed if
property divided again, but circumstances may again give rise to easement by necessity.
Othen v Rosier: Disputed Easement to get to the highway through another's land. Gates built.
Easement by Estoppel: A license that cannot be revoked because the dominant user has reasonably and seriously relied upon the
license to his detriment, and the licensor knew of this reliance. Requires:
License (representation by the licensor indicating intent that license won't be revoked), Foreseeable reasonable reliance on the
fact that the license won't be revoked, actual detrimental reliance (time, $$$, effort), licensor has knowledge of reliance and
detriment, and balance of equities (i.e. injustice).
Typically requires considerable long term expectations (improvements on dominant land/easement) Note granted as limited
easement as possible while still protecting their interests (limited in scope & duration). Holbrook v Taylor Taylors allowed
Holbrooks to use & improve road to get to their home.
Easement by Prescription: Easement may be gained by using the easement (as opposed to the fee) in the way an easement
holder would. Very similar to adverse possession. Must meet the other requirements for adverse possession too A&H, O&N,
Continuous, Statutory Period, Claim of Right, Exclusive (does not mean exclusive to others, rather that one's right to use of land
doesnt depend upon a like right of others, not public though).
Gilardi v Hallam: deed of land misplaces the property boundaries by 15'. No taxes paid. Note If a gate exists on shared
pathway, and servient landowner built gate, then the dominant landowner is A&H. By acquiescing to gate, the dominant
landowner is showing their access is permissive.
Othen v Rosier: Disputed Easement to get to the highway through another's land. Gates built.
Scope: Always decided by grantors intent. If grantors intent ambiguous use rule of reason. What would reasonable grantor
have intended under the circumstances? Not about whats reasonable today. What would reasonable grantors have intended at
the time of easement creation about future changes in quality & quantity of perpetual easement. A grantor will foresee changes in
quality/quantity of usage of easement as long as use does not DIMINISH VALUE of the servient parcel. Appurtenant easements
can't be extended to use of another parcel. Intent, if expressly stated, controls the scope can only be used for residential purposes
by no more than two households. Fee owner of the servient land can use the road for any purpose, & convey such uses to
others, so long as the use does not interfere with the easement rights granted to easement holder. No changes in scope allowed for
Easement by necessity. Only bare minimum of what was essential at time of severance.
Exclusive v. Non-Exclusive INTENT! Any indication in document/surrounding circumstances that indicate the easement to
was intended to be exclusive? railroad easement (clearly intended to be exclusive).
Moving Easements Traditionally: No. If original location is fixed, it cannot be moved without the consent of the servient (the
RIGHT to USE the easement, as intended at the time of the creation). Some Modern: If it is paid for by servient & causes no
harm, and if not moving it causes devaluation or inconvenience to the dominant, why not allow the servient parcel to be more
fully utilized.
Express Termination: instrument creating easement may expressly provide for its termination (easement shall terminate in the
year 2050, easement shall terminate if dominant parcel not used for residential purposes.)
Express Release: Released by dominant via written instrument that meets the reqs for an effective deed.

Implied Release (Abandonment): facts show owner of dominant parcel unequivocally intended to release rights to easement;
Difficult to prove; Must establish equivalent of express release. Finding abandonment occur only upon most compelling
circumstances; (RR company comes tears up all tracks and sells the iron, etc)
Estoppel: Representation by the easement owner; Im no longer going to use the easement, go ahead, build your house where the
driveway is . . . ; Reasonable Detrimental Reliance (the fee owner builds the house); Knowledge of the Reliance, the dominant
knows he is going to build the house; Balance the Equities, is it fair?
Prescription: Use by fee owner that is A&H, GFCR/CT, openly & notoriously, continuously for statutory period.
Merger: If fee interest in both the dominant & servient parcels are acquired by same owner, the easement/covenant terminates by
"merger" of the easement into the larger estate.