Property Case Outline

Red covenants (covenants which run with the land at law) | 4 Law School 8/19/18, 9'28 PM
Red covenants (covenants which

run with the land at law)
Author: Michael A. Paff
School: Rutgers- Newark
Professor: Dean Deutch
Johnson v. M’Intosh p.25 US
Facts: An Indian tribe sold a plot of land to Johnson. Thirty years later, the
U.S. gave M’Intosh the same piece of land. Johnson was thrown off the land.
Johnson sued M’Intosh for a ejectment cause of action.
Issues: Whether the title given by the Indians can be recognized in the
Courts of the US.
Rule: The decree of 1763 stated that no one could purchase land from an
Indian because the land was not theirs, it belonged to the government.
Application: Either because of the state of conquering of the decree of 1763,

the Indian government, could not sell the land to the Johnson therefore it was
like the sale never took place.
Conclusion/Holding: Judgment for Defendant
NOTES:
Ejectment cause for action. (gets trespassers off)
Decree of 1763 gave no right to Indians to sell property
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Tee-Hit-Ton Indians v. United States p.36 US
Facts: The tribe wanted compensation for the taking of certain timber by the
United States from Alaskan lands allegedly belonging to the group.
Issues: Whether the tribe has the right to unrestricted possession,

occupation and use.
Application: There has been no recognition by Congress of any legal rights

in petitioner to the land in question. Indian occupation of land without
government recognition of ownership creates no rights against taking or
extinction by the United States.
Conclusion/Holding: Indian occupancy may be extinguished without

compensation.
Pierson v. Post p.51 NY
Facts: While Post was hunting and pursuing a fox with dogs, Pierson
intercepted the fox, killed it, and carried it off. From a trial court decision for
the plaintiff, the defendant appealed.
Issues: Whether Post, by his pursuit, acquired such a right to, or property in,
the fox.
Rule: Property in such animals is acquired by occupancy only. Pursuit alone

vests no property or right in the huntsman unless the animal is actually
taken.
Application: Mere pursuit gave Post no legal right to the fox.
Conclusion/Holding: Judgment reversed
Dissent: Kill all foxes. If hunted professionally, it should go to pursuer.

NOTES:
Form of action – trespass on the case (deals with personal property with a
specific remedy (money)
Elliff v. Texon Drilling Co. p.56 Tex
Facts: Both parties owned property over a huge gas reservoir in which
drilling rigs were established. The defendant’s rig blow out and destroyed
property of the plaintiff.
Issues: Whether the law of capture absolves respondents of any liability for
the negligent waste or destruction of petitioners’ gas and distillate.
Rule: The landowner is regarded as having absolute title in severalty to the

oil and gas in place beneath his land. Under the law of capture, there is no
liability for reasonable and legitimate drainage from the common pool.
Application: The negligent waste and destruction of petitioners’ gas was

neither a legitimate drainage of the minerals from beneath their lands nor a
lawful or reasonable appropriation of them. Consequently, the petitions did
not lose their right, title, and interest in them under the law of capture
Conclusion/Holding: Judgment reversed
NOTES:
Surface owner is the owner of the land and also the absolute owner of the oil
and gas below.
The law of capture modifies by allowing a producer to become the owner of

the oil; not trespasser.
Can’t use injurious capture/drilling – liable if do so

That rule modified by negligence – must capture – if not – just waste – no

law of capture.
Water: natural situation prevails – surface water system
streams/groundwater – prior appropriation/use – 1st user owns
permit system – state/organizations gives permits
riparian owner
reasonable use – balance rights of all
correlative rights – defined water for each user
free use/absolute ownership – creates conflicts
International News Service v. Associated Press p.66 US
Facts: INS waits for AP to release its stories on a community bulletin board
or a newspaper, then steals the idea and sells it to other newspapers. From a
judgment for AP, INS appeals.
Issues: Whether defendant may lawfully be restrained from appropriating

news taken from or from newspapers published by them, for the purpose of
selling it to defendant’s clients.
Rule: Upon the publication of news, property right is lost and may be
regarded as public knowledge. Each party is under a duty so to conduct its
own business as not unnecessarily or unfairly to injure that of another.
Application: AP remains the owner of the stories after they are published as
far as their competition is concerned. This is unfair competition in business
Conclusion/Holding: Affirmed.
Dissent #1: Property does not arise from value. The defendant should be
enjoined from publishing news obtained from the AP for hours after
publication by the plaintiff unless it gives express credit to the AP.
Dissent #2: An essential element of individual property is the legal right to

exclude others from enjoying it. They are merely using its product without
making compensation. That they have a legal right to do, because the product
is not property. INS should be able to use stories only if they do not credit AP.
Legislatures should deal with this problem and create laws.
Moore v. Regents of the University of California p.82 Cal
Facts: Doctors, who were treating Moore for leukemia, used his blood,
semen, bone marrow, and spleen unknown to Moore to come up with the
lucrative “Mo cell line." Moore found out and now wants compensation.
Issues: Whether it was a breach of fiduciary duty to disclose facts material to

the patient’s consent.
Rule: Conversion.
Application: The complaint does not satisfy the established requirements of

a conversion cause of action. The cell line was new and different from the
plaintiff’s cells.
Conclusion/Holding: Should be left to Legislature.
Dissent: The complaint fully satisfies the established requirements for a

conversion cause of action.
Nome 2000 v. Fagerstrom p.136 Alaska
Facts: From 1944 to 1978 D used, staked, and improved a cabin. From a
denial for P’s directed verdict, P appealed.
Issues: Whether the jury could reasonably conclude that the Fagerstroms
adversely possessed the parcel.
Rule: For the statutory period ‘his use of the land was continuous, open and
notorious, exclusive and hostile to the true owner.’
Application: The defendants cared for the parcel as if they owned it. A quick
investigation of the premises would have been sufficient to place a reasonably
diligent landowner on notice that someone may have been exercising
dominion and control over their property.
Conclusion/Holding: We conclude that the defendants adversely possed

property.
Where, as in the present case, the land is rural, a lesser exercise of dominion
and control may be reasonable.
Where physical visibility is established, community repute is also relevant

evidence that the true owner was put on notice
NOTES:
The requirements:
actual – take and use the property as if it were yours {may be easement if you
just use it}
continuous – be there physically
exclusive – keep trespassers off the land like what a owner would normally do
open and notorious – needs to be sufficient warning to the public that a claim
is being asserted
hostile (intend to deprive the owner)(adverse) /under claim of right (could

have a deed) / under color of title for statutory (have document that intends
to give you the property, may decrease time needed)
One objective test used, or
Two subjective tests used:
Intentional dispossession – the adverse possessor must be aware that she is

occupying
property owned by someone else and must intend to oust the true owner.
Good Faith – those who mistakenly occupied property owned by someone

else.
statutory period (tacking) – 21 years in England and still used in some states.
Western states are easier to get AP (5 years in shortest). NJ is 20 years but
drops the element of permission for 30 years in developed land (60 years in
undeveloped land).
[pay taxes in some states] – some states require that you paid the property
taxes during the AP claim.
Can not gain adverse possession when you are given permission to occupy the
land.
Reasons for AP:
1. Land development
2. Distribution of wealth.
3. Keep land claims alive (Doctrine of repose)
Burden of proof belongs to the AP
Standard of proof is clear and convincing evidence (preponderance of the

evidence is commonly the same but the court distinguishes here)
Community Feed Store, Inc. v. Northeastern Culvert Corp. p.169

Vt
Facts: P sought a prescriptive easement for a parcel of land 60 X 90 feet

owned by the D. Vehicles would use the gravel lot for turning and backing
while delivering goods to both the P and D. Finding for the D, P appealed.
Issues: Whether the court erred in making two findings of fact. First, if the
plaintiff failed to prove the size of the easement, and secondly, the use of the
area was made with the permission of the fee owner.
Rule: Slight deviations from the accustomed route will not defeat an
easement, only substantial changes which break the continuity of the course
to travel.
Application: The traveling of trucks entering the easement had only slight
deviations. Plaintiff met its burden by establishing the general outlines of the
easement with reasonable certainty.
Conclusion/Holding: Judgment reversed.
—–Gravel area in question
Feed
NCC Store
Acquiescence – acting like you have possession as the owner (mindset of

actual owner), different from permissive
The requirements for easements are generally the same but are more lapse in
most states.
Brown v. Gobble p.141 WV
Facts: D purchased their property by deed and were informed that there
property ran up to a fence, when, in actuality, the two-foot-wide tract of land
belonged to the P. The D took care of the P and refused to let the P build on
the property once the truth was known. The P sued and won and the D
appealed based on tacking.
Rule: Where one by mistake occupies land up to a line beyond his actual
boundary, believing it to be the true line, such belief will not defeat his right
to claim that he holds such land adversely or hostility under the doctrine of
AP.
Application: The land appeared to be part of the defendant’s property. They

contend that they have established adverse possession by tacking on the time
periods that their predecessors in title claimed the two-feet-wide tract.
Charrier v. Bell p.115 LA
Facts: P excavated two tons of Indian artifacts. The TC denied relief under
the theory of unjust enrichment. P appealed.
Issues: The adequacy of proof that the Tunica-Biloxi tribe are descendants
of the inhabitants of the burial grounds, the ownership of the artifacts, and
the applicability of the theory of unjust enrichment.
Application: The descendants of former Tunica Indians have adequately

satisfied the proof of descent. The fact that the descendants resolved to bury
certain items along with the bodies of the deceased, does not result in a
conclusion that the goods were abandoned. As for the unjust enrichment;
plaintiff has failed to prove that he has sustained the type of impoverishment
needed.
Conclusion/Holding: Judgment affirmed.
NOTES:
Declamatory relief
Grave robbing case
He claims he dug up buried treasure. The items were not gold and silver or
stolen goods and therefore distinctive.
Mr. Hoshman did not have the authority to allow access to the property,
therefore the defendant was a trespasser.
Items can be either lost, mislaid, or abandoned
State v. Shack N.J. p186
Facts: Tedesco, a farmer who hires migrant workers, called police when
defendants, Tejeras and Shack walked onto his property to check on a injured
worker and a worker who needed legal advise.
Issues: Whether the migrant worker should be deemed to be a tenant and

thus entitled to the tenant’s right to receive visitors or whether his residence
on the employer’s property should be deemed to be merely incidental and in

the aid of his employment.
Rule: Representatives from charities may enter upon the premises to seek
out the worker at his living quarters.
Application: The migrant worker must be allowed to receive visitors there

of his own choice, so long as there is no behavior hurtful to others. The
farmer is entitled to pursue his farming activities without interference but he
cannot assert a right to isolate the migrant worker in any respect significant
for the worker’s well being.
Conclusion/Holding: The defendants did not violate the trespassing

statue. Judgment reversed.
Notes:
$100,000 in attorney’s fee in a NJ appeal.
Property rights serve human values. Human rights are higher than property
rights in NJ. (liberal)
The key is communication to the farmworkers.
Most justices say that property rights have changed over time.
Lloyd Corp., Ltd. V. Tanner U.S. p236
Facts: Lloyd Corp., owner, made the D stop distributing handbills. The DC
found the Center was equivalent to a public business district and that their
rules violated First Amendment rights. The Court of Appeals affirmed.
Issues: Whether respondents, in the exercise of asserted First Amendment

rights, may distribute handbills on Lloyd’s private property contrary to its
wishes and contrary to a policy enforced against all handbilling.
Rule: The Constitution does not require private property to be used for
public use, nor does it lose its private character because the public is invited
to use it.
Application: Marsh v. Alabama involved a company-owned town that had

the full spectrum of powers of a State municipality. There is no such
dedication of Lloyd’s privately owned and operated shopping center to public
use as to entitle respondents to exercise therein the asserted First
Amendment rights.
DISSENTING: In Marsh, “the more an owner, for his advantage, opens up his
property for use by the public in general, the more so his rights of those who
use it". It is a balance we are striking between freedom of speech and freedom
of private property.
N.J. Coalition Against War in the Middle East v. J.M.B. Reality

Group N.J. p243
Facts: The respondent petitioned 10 large malls to hand out anti-war

leaflets. TJ found for Ds and AJ affirmed.
Issues: Whether the defendant regional and community shopping centers

must permit leafleting on social issues.
Rule: Constitution affords no general right to free speech in privately owned

shopping centers.
Application: Regional malls compete with and have displaced downtown

business districts as the gathering point of citizens. The New Jersey
Constitution’s right to free speech is broader than the First Amendment. The
court contended that leafleting would not hurt the business of the mall as it
did not for downtown businesses.
Conclusion/Holding: We decide that the defendant’s rules prohibiting

leafleting violate plaintiff’s free speech rights.
DISSENTING: The primary users of shopping malls are shoppers. It is a

business. Some groups would offend shoppers.
NOTES:
Mall owners wanted to keep it peaceful for shoppers.
Green Party of New Jersey and James Mohn v. Hartz Mountain

Industries, Inc.
Facts: Plaintiff, wanted to leaflet Hartz. The mall wanted him to follow three
regulations. 1. Get a $1,000,000 insurance policy. 2. Sign a “hold harmless"
clause, and 3. Only one day per year. The premium for the insurance policy
was $665 which was cost prohibitive. P filed suit and was allowed to leaflet
one day without insurance. The Chancery Division ruled all three regulations
were invalid. AC held that all three regulations were good faith.
Issues: What legal standard should determine free speech activities at

shopping centers.
Rule: Peaceful leafleting are expressive activities involving “speech"

protected by the First Amendment.
Application: Regional malls compete with and have displaced downtown

business districts as the gathering point of citizens. The court observed that
property rights must yield to the public interests.
Conclusion/Holding: We disagree that the business judgment rule is the

proper standard
DISSENTING: The primary users of shopping malls are shoppers. It is a

business. Some groups would offend shoppers.
NOTES:
Empire State, World Trade Center
Stadium
Home Depot
Matthews v. Bay Head Improvement Association N.J. p.258
Facts: D owned six out of 76 parcels of oceanfront land. They lease the other
parcels from private landowners. D owns the land commencing at the end of
seven of these streets for the width of each street and extending through the
upper dry sand to the mean water line. It charges residents $60 to $90 per
year for membership.
Issues: Whether the public has a right to use the dry sand area owned by a
quasi-public body.
Rule: Land covered by tidal waters belongs to the sovereign, but for the
common use of all people.
Application: The public must be able to have access to the beach as well as
the dry area. The complete pleasure of swimming must be accompanied by
intermittent periods of rest and relaxation beyond the water’s edge. The
Association’s activities paralleled those of a municipality in its operation of
the beachfront. There is no public beach.
Conclusion/Holding: The public must be given both access to and use of

privately-owned dry sand areas
Noone v. Price (W. Va. 1982) p.286
Facts: The Ps purchased a home and four years later they became aware that
the wall under their front porch was giving way and that the living room
plaster had cracked. The defendant owned a retaining wall built on the
bottom of the hill.
Issues: Whether the defendant was negligent in failing to provide lateral

support for their home.
Rule: An adjacent landowner is strictly liable for acts of commission and

omission on his part that result in the withdrawal of lateral support to his
neighbor’s property; however, there is no obligation to support structures
that land cannot naturally support.
Application: One who removes natural lateral support and substitutes

artificial support to replace it, have an obligation to maintain it. The
defendant merely had the obligation to maintain the wall to support the
plaintiff’s land in its natural condition.
Conclusion/Holding: Remanded for further hearing.
NOTES:
case took 14 years (NY average 7 years)
Friendswood Development Co. v. Smith-Southwest Industries, Inc.

(Tex. 1978) p.299
Facts: P alleges damage from D’s past and continuing withdraws of vast
quantities of underground water from wells on defendants’ nearby lands.

Plaintiff sues on negligence and nuisance.
Issues: Whether the defendant is liable for subjacent support to the plaintiff.
Rule: Owners have absolute ownership over their property. Law of capture
except when wasteful.
Application: P argue for the reasonable use rule. Only waste and malice are
limitations to the absolute ownership rule.
Conclusion/Holding: Holding against the plaintiff.
Dissent: This is a nuisance case. The plaintiffs assert an absolute right to keep
the surface of their land at its natural horizon. The plaintiff does have a right
to lateral support.
NOTES:
Building codes may not a cause of action to support a law suits. In these
cases, common law is used.
Page County Appliance Center, Inc. v. Honeywell, Inc. (Iowa 1984)

p.325
Facts: P owned and operated an appliance store with radiation leaking

computers next door. P sued Honeywell and ITT for nuisance and tortuous
interference with business relations. J for the plaintiff, defendants appeal.
Issues: Whether the court erred in not addressing the issue of unusually
sensitive areas.
Rule: The plaintiff cannot, by devoting his own land to an unusually

sensitive use…make a nuisance out of conduct of the adjoining defendant
which would otherwise be harmless.
Application: To balance the issue of unusually sensitive area, the trier of

fact needs to look at certain uses. The existence of a nuisance is not affected
by the intention of its creator not to injury anyone.
Conclusion/Holding: The court on retrial should provide more guidance

for the jury. Judgment reversed.
NOTES:
Nuisance per se – Certain businesses in residential areas; funeral homes,

sewer plant
Nuisance in fact (per accident) – certain acts that are a nuisance
Private nuisance – only affects a small number of people
Public nuisance – harm to society in general or large numbers of people
Nuisance – unreasonable use of the land which causes substantial harm
Proper remedy – injunction; damages
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (Fla.

1959) p.336
Facts: P brought suit because D started to build an addition to their hotel

that would have shadowed the P’s resort hotel.
Issues: Plaintiff claims right to negative easement
Rule: The landowner had no legal right, in the absence of an easement, to

unobstructed light and air from the enjoining land.
Application: Where 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,
even though it causes injury to another by cutting off the light and air and
interfering with the view that would otherwise be available.
PLAINTIFF
Proposed Building
Defendant
Prah v. Maretti (Wis. 1982) p.357
Facts: D built his house next door to the P’s solar powered home.
Issues: Whether a construction of a residence interferes with his access to an

unobstructed path for sunlight across the neighbor’s property.
Rule: Private nuisance common law:
1. The right of landowners to use their property as they wished, as long as

they did not cause physical damage to a neighbor.
2. Sunlight was valued only for aesthetic enjoyment or as illumination.
3. Society had a significant interest in not restricting or impeding land

development.
Application: Private nuisance law has the flexibility to protect both a

landowner’s right of access to sunlight and another landowner’s right to
develop land. Recognition of a nuisance claim for unreasonable obstruction of
access to sunlight will not prevent land development or unduly hinder the use
of adjoining land. Access to sunlight has taken on a new significance in recent

years. A landowner’s compliance with zoning laws does not automatically bar
a nuisance claim.
Dissent: A landowner’s right to use his property within the limits of

ordinances, statues, and restrictions of record where such use is necessary to
serve his legitimate needs is a fundamental precept of a free society which
this court should strive to uphold.
Holbrook v. Taylor (Ky. 1976) p.382
Facts: The A gave permission to D to use the road for eight years. The right
to the use of this easement was not established by prescription. The appellee
came to the Taylors and offered the easement for sale for $500. The Taylor
rejected the offer. The appellee then blocked the road to discontinue use to
the appellants.
Issues: Whether an easement by estoppel (Irrevocable License) could be

established.
Application: There is no other location over which a roadway could

reasonably be built to provide an outlet for appellees. D used to road to get to
their home, construction of the residence, and improvement of the road.
Rase v. Castle Mountain Ranch, Inc. (Mont. 1981) p.385
Facts: The P owned homes around lake purchased by D who wants to kick
them out. P had a license agreement with the prior owner. The court entered
judgment for a constructive trust. Both sides appeal.
Issues: Whether the agreement between the cabin owners and Tavenner
entitled the owners to an irrevocable license.
Application: Tavenner misled the cabin owners into believing they did not
have to fear the loss of their investment and so allowed them to act to their
detriment.
Conclusion/Holding: Judgment affirmed. Payment or ingress and egress.
A———–à——B——–à———–C (equitable owner)
title beneift
license coupled with an interest
Irrevocable license terminates when the use terminates
An easement does not terminate from nonuse.
Constructive trusts are not required in writing.
Granite Property Limited Partnership v. Manns (Ill.1987) p.396
Facts: D bought a parcel from the P who maintains two easements for access
purposes. The D admitted that he saw the two easements before he purchased
the property. Form a judgment for the P, D appealed.
Issues: Did the plaintiff acquire an easement by implied reservation over the
driveways of the defendant?
Rule: There are two types of easements – easement by necessity and the
easement implied from a pre-existing use.
An easement implied from pre-existing use has three elements:
1. common ownership of parcel then a transfer separating the ownership
2. before separation, the common owner used part of the parcel for the
benefit of another part, and the use was apparent, obvious, continuous, and
permanent and
3. the claimed easement is necessary and beneficial to the enjoyment of the

parcel conveyed by the grantor.
Application: Easements were apparent, permanent, and subject to

continuous, uninterrupted, and actual use and reasonably necessary for the
beneficial use and enjoyment of the shopping center and the apartment
complex.
Easements – express
prescription
by implication (quasi-easement) (by reservation or by grant)
by necessity
appurtenant
in gross
dominant estate (tenement); servient estate (tenement);
actual notice
inquiry notice
constructive notice
Finn v. Williams (Ill.1941) p.403
Facts: Ps charge that the nearest and only available means of egress from
and ingress to their land to a highway is by means of a right of way over D’s
tract. Ps must now walk, with their livestock, to the nearest road
Issues: Whether P has an easement by necessity over the defendant.
Rule: Where an owner of land conveys a parcel thereof which has no outlet
to a highway except over the remaining lands of the grantor or over the land
of strangers, a way by necessity exists over the remaining lands of the grantor.
Conclusion/Holding: Judgment for the plaintiff.
Green v. Lupo (Wash. Ct. App. 1982) p.415
Facts: The D purchased parcel from Ps. The P agreed to a deed release to a
small section in return for the promise of an easement along the southern
border of their land. P used the easement as a practice runway for their
motorcycles. The court ordered the plaintiff’s use to be limited to ingress and
egress for their own home and prohibited the passage of motorcycles.
Plaintiffs appeal.
Application: In this case the easement was appurtenant. A servient owner is

entitled to impose reasonable restraints on a right of way to avoid a greater
burden on the servient owner’s estate so long as such restraints do not
unreasonably interfere with the dominant owner’s use.
Conclusion/Holding: Reversed and remanded so not to create a

dangerous nuisance.
NOTES:
Express easement – former prop interest created by written document:
Three requirements:
1. written and meet SOF
2. intent
3. notice (actual, inquiry, constructive)
Cox v. Glenbrook Company (Nev. 1962) p.420
Facts: P bought the property to subdivide into 40 – 60 lots with an easement

for ingress and egress. The road was a single lane dirt road and the plaintiff
wanted to expand it.
Issues: Whether P can expand the road to make room for his expansion.
Rule: The owner of an easement may prepare, maintain, improve or repair

the way in a manner and to an extent reasonably calculated to promote the
purposes for which it was created. Where the width of a right-of-way is not
specified in the grant, it is limited to the width as it existed at the time of the
grant.
Conclusion/Holding: Remanded.
Henley v. Continental Cabelvision of St. Louis County, Inc. (Mo. Ct.

App. 1985) p.426
Facts: Ps were expressly granted the right to construct and maintain electric,
telephone, and telegraphic in a subdivision. They granted easements to other
parties to perform these duties. Those parties granted D a license to enter
upon their easements and erect cable. P filed a trespass action.
Issues: Whether the easements in gross are exclusive and therefore

apportionable by the utilities to the defendant.
Rule: One who grants to another the right to use the grantor’s land in a
particular manner for a specified purpose but who retains no interest in
exercising a similar right himself, sustains no loss if the use is shared by the
grantee with others.
Application: The easements granted were exclusive as to the grantors

thereof and therefore apportionable. It is in the public interest to let cable be
installed even if it could not be foreseen 50 years ago when the easement was
granted.
Conclusion/Holding: Holding for the defendant.
ª Real covenants (covenants which run with the land at law)
in writing
notice
intent to run with the land
touch and concern the land (related to use of land, land increased in value)
privity – horizontal – (tenant/landlord, two owners granting easements to

each other, sale
from common ownership (instantaneous privity))
vertical – (same property interests, succeed to the estate)
Only get damages from common law courts in England. Still followed by
some states.
Equitable servitudes (covenants which run with the land at equity,

negative reciprocal easements, implied negative reciprocal easements, etc.)
in writing (not every state)
notice
intent to run
touch and concern
(need common ownership in most states to create)
(use common scheme to replace most elements)
Grants injunctions in equitable courts in England. Ex: NJ
Broad or narrow chain of title search
Evans v. Pollock (Tex. 1990) p.476
Facts: A subdivision was plotted into lots A though G with restrictive

covenants. The dispute occurred when two blocks were sold to D to build a
marina, condos, etc. that violated the covenants. P brought suit seeking relief
and injunction. Trial court stated block F was not intended to have the
restrictions in the general scheme but block G was. Appellant court reversed
stating none of the retained lots were restricted.
Issue: Whether all the tracts in the development must be intended to be

subject to the restrictions
Rule: The doctrine of implied reciprocal negative easements applies when an

owner of real property subdivides it into lots and sells a substantial number of
those lots with restrictive covenants designed to further the owner’s general
plan or scheme of development.
Application: There is a general scheme of development furthered by the

restrictive covenants. It was reasonable for the trial court to conclude that the
restrictions were meant to apply only to the lakefront lots.
Conclusion: Reversed.
NOTES:
Covenants may only cover part of a common land in accordance of a general

scheme.
Sanborn v. McLean (Micah. 1925) p.480
Facts: D was deeded the title from her husband. D wanted to build a gas
station in the back of her lot. Restricted for residential purposes, Ps sue.
From a decree for P, Ds appeal.
Issue: Whether the D was put on notice of the property.
Rule: Three types of notice for covenants: constructive, inquiry, and actual.
Application: No actual notice here, nothing on deed. Common owner only

put restrictions on half of deeds. Inquiry notice was obvious.
Conclusion: Affirmed
NOTES:
Apartment houses are not desirable in a residential area and would defeat a
equitable servitude based on a residential restriction.
Is it a common scheme if only half of the lots are restricted? The court did not
want the exploding gas station.
Riley v. Bear Creek Planning Committee (Cal. 1976) p.483
Facts: P bought the lot without restrictions. Nine months later, the sub-
division created the covenant. P attempted to build a covered walkway
without authorization. P wins, D appeals, affirmed in Court of Appeals,
appealed.
Issue: Whether P is burdened with restriction not on his deed.
Rule: Each deed must be construed at the time it is given. Every material
term of an agreement within the statute of frauds must be reduced to writing.
No essential element of a writing can be supplied by parol evidence.
Dissent: Plaintiffs took the deed with the understanding that the lot was
subject to valid restrictions.
NOTES:
California has strict rules for equitable servitudes. Must be in the deed for
actual notice.
Blevins v. Barry-Lawrence County Association for Retarded

Citizens (Mo. 1986) p.497
Facts: D wanted to start group home of 8 retarded citizens on a lot with

single-family restrictions. From judgment enjoining D from using its property
as a group home, D appeals.
Issue: Whether D violated the covenant and whether the covenant violated
public policy.
Rule: From the covenant restraining D’s property: “The aforesaid real
property shall be used for residential purposes only. No buildings shall be
erected, altered, placed, or permitted to remain on said real property other
than single or double family dwellings."
Application: When there is any ambiguity or substantial doubt in

the meaning, restrictive covenants will be read narrowly in favor
of the free use of property.
The house serves as a surrogate family arrangement. D’s intended use of its
property does not violate the terms of the restrictive covenant.
El Di, Inc. v. Town of Bethany Beach (Del. 1984) p.505
Facts: A restaurant in Bethany Beach wanted to serve alcoholic beverages by

request of brown bagging customers. Restrictive covenants prohibited the
sale of alcohol in the town. From a permanent injunction against P, P
appeals.
Issue: Whether the covenant can be enforced against the sale of alcohol by
D.
Rule: Changed conditions rendered the restrictive convenants unreasonable

and therefore unenforceable. Dispite the current restrictions, commercial
development has developed.
Conclusion: The change of conditions was sufficient to negate the restrictive

covenant. Reversed.
Dissent: The beach remain a quiet, family-oriented resort when no liquor is

sold.
Notes:
Termination – Changed conditions
Relative hardship – benefit too small
Acquiescence – if you have allowed action in the past
Abandonment – give up trying to enforce
Unclean hands – if you violating covenant, you cannot enforce on another
Estoppel – you failed to act
Laches – too much time has past
Language in covenant
Marketable title act – a statute that says you must re-resister
Merger – to common land
Release – all servitudes are given up
Prescription
Blakeley v. Gorin (Mass. 1974) p.518
Facts: P wanted to construct a bridge over alley connecting two hotels. D

own a hotel next door and the claim the building would violate a restrictive
covenant. TC held restrictions are unenforceable and awarded no damages.
Rule: No restriction shall be enforced or declared to be

enforceable unless it is determined that the restriction is, at the
time of the proceeding, of actual and substantial benefit to a
person claiming rights of enforcement.
Even if a restriction is found to be of such benefit, it shall not be

enforced except by award of money damages if any of several
enumerated conditions are found to exist.
Application: Restrictions are unenforceable, however, the bridge will

occupy most of the space between the two buildings for a height of 12 stories.
Conclusion: Damages are to awarded to D for loss of light and air.
William à tenants in chief à tenants à tenants
When tenant dies, it went back to next highest man, no inheredence.

(Starting in 1100, a fee could be paid to inherit)
Primogeniture – inherited only to oldest son
Inheritable but not devisable (“willable")
Feudal incidents – first taxes (paid to higher land owner)
n aids – paying of captures (ex lionheart)
n shaped modern property system as people tried to aviod payment
n the lord from whom you held has the right to take over the land if you die
and leave a son under 21, and the right to marry off sons or daughters and
collect the money from it.
Transfer of land have to aproved by the lord from whom you held and
generally required a payment.
O to A and his heirs (these words defined who owned the property) – had to
get permission from LWH and heirs to transfer ownership to B. Starting in

13th century, the words defined something different (fee simple absolute),
“and his heirs" did not include heirs in the desicion to sell.
Estate of Coparceny – women inherited fee simple absolute as a group
History of the Transfer of Property
Feoffment with livery of seison (Feoffment – the act of giving the property)
(livery – status of
ownership) (seison -concepts of ownership, possession, and social status as

associated
with land)
Transfer of ownership had to be on the property or within sight of it
n problems with proof
n needed witnesses (no females before 1800) (young boys made a business
out of it) (beat boys so that they would remember the day)
Fee Simple Conditional
n an obsolete FSA since 1300
n X to A and the heirs of his body
n A had life estate
n if A had a male child declared by the church, born alive, and then the child
dies, he had the option of transferring the property in FSA to anyone
n if child was still alive at time of transfer, estate went to child

n if no child or only girls, it goes back to the lord whom you held
Fee tail
n De Donis Conditionalibus (of conditional girfs) 1285
n Abolishes the SFC
n As soon as A makes a male child, the property will transfers to his heirs,
otherwise back to X
n if king took your property interests (fee tail) and kills him, it reverts backs
to X which was probably owned by the same family. Better to keep him alive.
n Life estate in some states in the Midwest.
Defeasible Fees
Fee simple determinable
n possibility of reverter – a future interest of grantor
n under common law, was inheritable but not transferable,
divisible) changed by most states)
n not subject to the rule against perpetuities
n alienable, inheritable, divisible
n most courts do like FSD
n “O to A unless as used for church purposes; if used for non-church purpose,

the property shall automatically revert to O.
n watch for fee simple absolute
n Marketable Title Acts state the possibility of reverter may only last a certain
period of time, ex 50 years
Fee simple subject to condition subsequent
n only if grantor asserts her interest
n right of entry
n fully transferable and divisible in most states (Common law is opposite)
n O to A, but if used for nonresidential purposes, O shall have a right of entry
n statue of limitations on FSSCS runs from date of offense
n Adverse possession does not start until grantor exercises interest
n because is a future interest in grantor, there is no perpetuities
n MTAs define time period
n transferable
Fee simple subject to an executory limitation
n executory interest – future interest in third party
n only by cutting short the present estate
n always transferable and divisible
n O to A so long as used for residential purposes, then to B
n transfers immediately when violated
n some states allow to set up so that a third party must assert the interest
n never vested therefore it is always subject to the rule of perpetuities
Life Estates
n can use it while alive
n all current interests are called “life estate"
n not divisible or inheritable
n reversion – future interest in grantor
n A to B for life (unstated reversion ***test question***)
n never subject to the rule of perpetuities
n A to B for the life of C – life estate for the life of another
n is divisible and inheritable for B
n C is measuring life (must be human being)
n remainders may be subject to the rule of perpetrates
n A to B for life , provided it be used for residential purposes, if not so used,

then to C
n defeasible life estate
n executory interest
n right to invade the corpus
n A to B for life, then to C, however, B shall have right to invade the corpus
n B has the right to sell part or all of the property in fee simple absolute
n power of appointment – can grant a greater property interest than he owns
n C’s remainder can be wiped out
n FUTURE INTERESTS IN THIRD PARTIES
n under common law, one future interest only called a remainder (third party
future interest that meets certain rules)
n use – (modern term – trust) A to B and his heirs for the use of C
n B has fee simple
n C has beneficiary – cestul que use
n B does not have the right of income
n could create chain of interests for C
n alternative for fee tail
ª in 1536, the Statue of Uses said you cannot separate use from ownership
ª C then gets land in fee simple absolute
ª Shifts to common law court
ª still allowed chains
ª no longer had to go onto the property to transfer title
ª the Statue of Enrollment – stated you could only transfer title in the written
document that is recorded.
ª In 1540, the statue of Wills was passed, that stated property could be
transferred by will
ª executory interest – a not a remainder
ª follows a fee simple or springs into existence in the future, or cuts short a
prior estate.
ª subject to the rule of perpetuities
ª X to A in 10 years – springing executory interest
ª anytime future interest comes from grantor, it is a executory

interest
n X to A for life, remainder to B, but if B dies before A, then to C
n shifting executory interest
n C is the executory interest because there may be no remainder
n power of appointment – creates greater interest for grantee
n typical for trustees of wills to determine where the estate goes
n transferable
n remainders
n limited to third parties
n creating in a transferee which can become a present possessary estate only

on the natural expiration on a prior estate created in favor of another
transferee in the same instrument and which does not follow a fee simple
interest.
n VESTED REMAINDERS
n Absolutely vested remainder
n X to A for life, remainder to B
n if A outlives B, it goes to B’s heirs
n must be living to be absolutely vested
n Vested remainder subject to open (partial divestment)
n subject to being reduced by more people entering the category
n O to A for life, then to the children of B
n B has at least one child at the time
n if a child dies before the end of A’s life, benefit is inheritable
n most states close the class when A dies
n in ½ the states, it is subject to the rule of perpetuities
n Vested remainder subject to complete divestment
n O to A for life, then to B, but if B has flunked out of law school, the property
shall then revert to O.
n a vest remainder with a condition
n O to A for life, then to B, but if B does not survive A, then to C (vested

remainder because the condition is separate)
n O to A for life, then to B if she survives A, otherwise to C (contingent

remainder because it is in the statement )
n CONTINGENT REMAINDERS
n a condition precedent (if stated first or it is in the statement of the

remainder)
n in close cases some states prefer vested remainder
n O to A for life, then to B if B has graduated from law school
n person is not known
n moves to VR when person is born
n unascertained person
n don’t know exactly who it is
n all CR subject to rule of perpetuities
n are subject to be destroyed therefore, all are accompanied by an unstated

reversion
n merger can destroy in a state that allows destructibility
n Doctrine of Worthier Title
n O to A for life, remainder in the heirs of O is read O to A for life, reversion

to O
n abolished in he majority states
n Rule in Shelley’s case
n it was more noble to inherit rather than getting it as a gift
n O to A for life, remainder to A’s heirs is the same as O to A and his heirs
therefor leaving a life estate to A
n this rule is not used in most states
Springing interest = coming from grantor
Shifting interest = coming from another party
RULE AGAINST PERPETUITIES:
n any property interest that can last forever on future interests in 3rd parties
n No interest is good unless it must vest, if at all, no later than 21

years after the death of some life in being at the creation of the
interest.
n avoids “dead hand rule"
n invented in late 17th century
n only applies to:
n contingent remainders
n executory interests
n powers of appointment
n vested remainders subject to open (in half of states)
n options to purchase not in leases
n creates equitable conversion (future interest)
n in leases, option must be taken during lease (or up to 21 years after

termination of lease in some states)
n rights of first refusals in condo and co-ops (in half of states)
n does not apply to:
n present estates
n interests of grantors
n can add the gestation period of an unborn child
n Vests when: all conditions precedent have been satisfied
n all people are there and we know what there share is (problem with VRSTO)
n A to B for life, then to the grandchildren of C
n half of states, this is not subject to RAP
n Unborn Widow Rule
n A to B for life, then to B’s widow for life, then to B’s surviving children
n B is not a life being because she might not be alive at A’s death
n if B is not a life being, the children’s interest may not vest in 21 years after
B’s death
n most states have reversed this rule under statute
n Fertile Octogenarian
n A to my children for their lives, then to my surviving grandchildren
n Changes in Interpretation:
n Cy Pres doctrine – reason with common sense
n Wait and See Rule – wait for a perpetuities period
n Uniform Statutory Rule Against Perpetuities – must vest within 90 years of

the date of creation
O to A so long as used for school purposes, then to B.

void under RAP
English rule change – O to A in fee simple absolute
American Rule – O to A so long as used for school purposes,
possibility of reverter to O
New Jersey – abolished RAP
n covers some trust situation
Restraints on Alienation – limits on present estates
n can not remarry clause
n can not sell your interest
n forfeiture restraints – take the property away
n promissory restraints
n disabling restraints
Wood v. Broad of County Commissioners of Fremont County (Wyo.

1988) p. 550
Facts: P conveyed deed to D stating the land had to used for a hospital. After
40 years, D sold the land to a private company who tore the hospital down.
From summary judgment for D, P appeals.
Issue: Whether cessation of D’s hospital operation constituted the

occurrence of an event which divested D of its estate in property conditionally
conveyed by P.
Application: TC found that P retained no interest in the land. The language

does not clearly state that the estate conveyed will expire automatically if the
land is not used for the stated purpose nor does it clearly state an intent of
the grantors to retain a discretionary power to reenter the land if the land
ceased to be used for the stated purpose.
Forsgren v. Sollie (Utah 1983) p.552
Facts: P conveyed property to D to be used as a church but D left the state.

The frontage of the property was sold for taxes and repurchased by the P. X
purchased the remainder of the lot. P poured concrete for footings and X
knocked it over. P sued for quiet title. TC stated a FSSCS with a right of
reentry.
Issue: Whether P could reacquire the property if the deed contained no

words indicating a reversion.
Rule: 4 conditions:
1. The language of the instrument
2. The nature of the event specified in the condition and its

importance to the grantor
3. The amount of consideration paid for transfer in proportion to

the full value of the estate in fee, and
4. The existence of facts showing the grantor’s intent to benefit the

adjacent land by the restriction imposed on the conveyed land.
Application: The grantor exercised her power of termination by reentering

premises and thereby reacquired in FSA.
Conclusion: Affirmed.
Riste v. Eastern Washington Bible Camp, Inc. (Wash. Ct. App. 1980)
p. 561
Facts: D subdivided and lots sold only to people who agreed to subscribe to
the church. D issued the deed to P that contained restrictions on resale. P
tried to sell the property contrary to restrictions.
Issue: Whether the restrictions are against public policy and thus void.
Rule: A clause in a deed prohibiting the grantee from conveying land to

another without the approval of the grantor, when the grantor transferred a
fee simple estate to the grantee, is void as repugnant to the nature of an estate
in fee.
Application/Conclusion: Sellable.
Hankins v. Mathews (Tenn. 1968)
Facts: Hankins leaving property to Grubb who is to keep in his possession

the property for 10 years before sale or the property would go to the heirs of
Hankin (P). Grubb sold to D before 10 years. P brought suit.
Issue: Whether P is entitled to the property
Rule: A condition in a devise in fee that the devisee shall make oath that he
will not dispose of the estate during his life is void.
Application/Conclusion: No
Northwest Real Estate Co. v. Serio (Md. 1929) p.567
Facts: Grantees contracted to sell to D but P rejected the sale based upon
restrictions to the property that the grantee could not sell or rent the land
without P’s consent.
Issue: Whether the restraint to be imposed is void as being repugnant to the

granted estate.
Rule: Restraint on alienation.
Application: On the theory that the quoted covenant is void, the averment
was arbitrary and unreasonable.
Conclusion: Yes
Restraints on Alienation:
Disabling – always void, ex. Cannot sell for a number of years
Forfeiture – have to give something up, ex. if you get married you have to give
it up
n if you have a fee simple, more likely to be unreasonable
Promissory – make a promise, buy options on a fee simple
Horse Pond Fish & Game Club, Inc. v. Cormier (N.H. 1990) p.569
Facts:. P deeded a property to two of its members who conveyed it back the
same day with restrictions stating the parcel shall not be alienated unless a
100% vote from members or the club is dissolved. P conveyed a meeting to
approve a land swap where D voted against it. P filed suit seeking a
declaration that the restriction in the deed was void as an unreasonable
restraint against alienation. P’s motion for summary judgment granted. D
appeals.
Rule: The rule of reasonable restraints however, generally does

not apply in the case of a gift to a charitable trust or charitable
corporation.
Application: The P’s organization was established as a non-profit.
Options to Repurchase
Central Delaware County Authority v. Greyhound Corp. p.602 Pa
Facts: X conveyed to P a option to repurchase for public purposes only. P

used the property for 26 years and ceased operations for public use. P seeks
quiet title stating RAP invalidates it.
Issue: Whether the RAP is invalid because of public policy.
Rule: A option to repurchase is normally subject to the RAP
Application: Public policy does not void the rule of perpetuities.
Conclusion: Reversed
Texaco Refining and Marketing, Inc. p.606 Conn
Facts: P executed a 15 year renewable lease with option to purchase to D.

After 23 years, D exercised his option but P refused.
Issue: Whether the RAP invalidates the option to repurchase.
Rule: RAP does not apply to an option to purchase in a commercial lease.
Application: Does not apply to a commercial lease with these terms. Every
renewal is a new lease.
Conclusion: Enforceable
Cambridge Co. v. East Slope Investment Corp. p.607 Colo
Facts: D gave first notice to purchase for a condo unit but X sold to another
purchaser anyway. D sued condos (P).
Issue: Whether the RAP invalidates the right to purchase clause in the
condo’s declaration.
Rule: The rule does not serve the purpose for which it was designed for
(preventing restraint on alienation or improvements of the property).
Application: ROP does not apply since the sale price is the same as the
biding price
Conclusion: Clause valid.
NOTE: Court have split 50/50 in ROP case such as Cambridge.

1. A person who has a future interest in a property has the right to visit the
property to make sure it is being maintained properly.
2. If waste is found, courts will demand repair.
Voluntary waste (commissive, active) – tenant deliberate caused harm to the

property
Ameliorating waste (ameliorative) – tear down non-profit-making building to

build a profit-making one.
Permissive waste (passive) – failure to keep the property in repair
Moore v. Phillips p.616 Kan
Facts: Claim of waste of heir to a life estate. P waits until mother died before
stating claim. D appeals judgment for P.
Issue: Whether remainder, by waiting 11 years, is barred by laches or

estoppel.
Rule: 1. Permissive waste is the failure of the tenant to exercise the ordinary
care of a prudent man for the
preservation and protection of the estate.
2. Laches is a failure to act to prevent waste
3. Estoppel may involve an affirmative act
Constructive Trusts
Roper v. Edwards p.577 NC

Facts: P’s grandmother conveyed all of a 136 acre tract to D with stipulation
that a one acre piece of the tract would go to the P at her death. D refused to
give it up. Property given in fee simple has no legal duty to convey because of
restraints on alienation. P seek a constructive trust.
Issue: Whether the P is entitled to a constructive trust.
Rule: A constructive trust is a duty imposed by courts of equity to prevent the

unjust enrichment of the holder of title to, or an interest in, property which
such holder acquired through fraud, breach of duty or some other
circumstance making it inequitable for him to retain it against the claim of
the beneficiary of the constructive trust.
Application: The Ds were constructive trustees of the property and must

convey it to the Ps
Anticompetitive Covenants
Dunafon v. Delaware McDonald’s Corp. p.581 Mo
– Taco Bell wanted to open up a store in D’s mall that had a covenant not to
compete. Court held P could open up a store in many other places.
Adult, single women
n Could not testify in court and were in a disadvantage.
n Coparceny – if there were sons to inherit property, all the daughters would
inherit the property until they married.
n The title then became a tenancy by the entirety where the husband would
control the property. The surviving spouse would own the property in FSA
and would be passed to the heirs.
n It they did not marry, it passed to the lord whom held the property.
Married women
n As soon as a woman married, all her property belong to the husband.
n All her real property was in jure uxoris.
n Once a child was born alive, the property became curtesy (husband had life
estate as long as they are married).
n Wife is not the legal heir of her husband.
n Could not earn money or file lawsuit.
n Dower rights – Widow was entitled to 1/3 of the income from all the
property ever owned while they were married. Waiveable.
n if husband created an active use with himself as beneficiary (A to T for the

use of A), the dower rights would not arrive because the trustee owns it. Until
1834, only a man could do this.
Prenuptial agreements were allowed by equity courts.
Husband and wife could enter into agreement to let wife run the land.
Equity courts would allow trusts for wives. (wording – “separate use")
Equity courts would allow trustee to sue on the behalf of the wife.
In US, the equity courts were not as strong.
Women often ran the land because the men traveled.
In 1834, US and Britain adopted the Married Women’s’ Acts
NY passed three acts
1848 – assured woman could retain the property she had before marriage.
abolished the need for trustee
1849 – women had the right to convey her own property with her husband’s
permission
1860 – authorized women to open up her own business with no interference

by her husband and she
kept the profits
It took until 1977 to give a woman the right to sell her property in all 50 states
Required share – the surviving spouse has a right to a certain percentage of

the estate
Restrictions based on Discrimination
Shelley v Kraemer US 622
Facts: Black Ps bought land that D neighbors claimed had a restrictive

covenant for whites only. TC invalidated covenant. State Supreme Court
reversed and title go back to seller.
Issue: Whether the covenant was valid and did it violate Ps 14th amendment
rights.
Rule: Covenant is valid only if action is taken by private party and NOT by
government.
Application: There was no common ownership here.
Today, it is illegal to discriminate privately AND publicly.
Evans v. Abney US 629
Facts: Senator willed a property to town as trustee to a white-only park.
Issue:
Rule:
Application:
Conclusion: Trust failed and can go back to estate.
DISENT: The closing of the park is unfair
His seven grandchildren were declared owners of property who sold the
property to developers who shut the park down and build commercial and
residential buildings.
Joint Tenancy (time, title, interest, possession)
Each tenant has the right to possess the land
Required to possess equal fractional interests
Has right of Survivorship – upon death, the interests transfer to other joint
tenants
Formalities of Creation
Time
Title
Interest
Possession
Some states have abolished these formalities
Severance
When a joint tenant transfers his interest, the right of survivorship is

destroyed and the
property is held as a tenancy in common
If A sells her one-half undivided interest to C, however, the joint tenancy is

severed, and
B’s right of survivorship is destroyed
A joint tenant who wishes to destroy the right of survivorship while retaining
her life
interest can convey her interest to another who conveys it back
Joint tenancy versus dual life estates with alternative contingent remainders
O to A and B as life tenants, with a remainder in A if A survives B, and a

remainder in B if
B survives A.
Tenancy in Common
Each tenant has the right to possess the land
Undivided interest
The current practice is to interpret the conveyance as a tenancy in common
Divisible in a will
Tenancy in Common with right of survivorship (tenancy in common with

alternate contingent remainders)
Tenancy by the Entirety –
– abolished in most states
– similar to joint tenancy except
– co-owners must be legally married
– property cannot be partitioned except through divorce
– interest cannot be sold, transferred, mortgaged without consent
– right of survivorship cannot be destroyed
– creditors cannot attach property
Condominium
Cooperative
Benefits – possession, use, rent, proceeds, etc.
Survivorship
Burdens – mortgage – share
taxes – share
repairs – If a co-tenant makes repairs with notice, the other co-tenants are
generally
responsible to contribute. Without notice, states are split.
capital improvements – must get agreement from other co-tenants before

making such
improvements
– if no permission is granted before building, some states treat
it as a gift, some states grant ownership of building to the
single co-owner
Ouster – any act which interferes with the free use of the property by the co-
owners
– changing locks, letter, pulling a gun
– generates the duty to pay rent and other charges
– actual –
– constructive – (ex house is too small and court creates an ouster)
Partition –physical partition – splitting the property up so each co-owner

owns a piece in FSA
– partitioned by size or value
– more desirable when the value of the property does not change
– 4-sale partition – done by court in a sheriff’s sale
– losses much of the value
Adverse Possession – the actions one each co-tenant is done for the benefit of
the group, however
– a super-ouster is when a co-tenant may notify the other co-tenants that he

is
beginning adverse possession. (fly the flag high)
– can be broken by filing suit or going on property
– adverse possessor must pay rent up to statute of limitations
– some states deny any adverse possession
Olivas v. Olivas N.M 715
Facts: Couple got divorced. Husband wanted court to say he was ousted so
he could collect rent.
Issue: Whether they was an constructive ouster
Rule: The character of the property must be such as to make such joint
occupancy impossible or impracticable.
Application: Husband voluntarily moved out to live with his girlfriend.
Conclusion: No ouster
Notes: Constructive ouster recognized with divorces when it would be

unreasonable to the couple to live together.
Carr v. Deking Wash 719
Facts: Two tenants-in-common. One co-tenant (father) made a lease without

the other co-tenant’s (son) consent. When the former co-tenant died, the son
brought suit against D to break lease because he now owned in FSA.
Issue: Is the lease valid
Application: The lease is valid and P cannot be ejected. The proper remedy
is partition.
Tenhet v. Boswell Cali 721
Facts: Joint tenant leases his interests with an option to purchase and then
dies. Other joint tenant looking for sole possession.
Issue: Whether the lessee’s interest in the property effected a severance of

the joint tenancy
Rule: 5 options: 1. Lease valid – no severance for life of lesser/term

whichever is shorter
2. lease valid for term – severs JT
3. lease invalid – no severance
4. lease temporarily severs – if JT dies during lease, lease continues, tenants-

in-common
5. lease is valid for its term – no severance
Application: Lease is not so inconsistent with joint tenancy as to create a

severance. The lease of the joint tenancy property also expires when the
lessor dies. You need an express statement to destroy a joint tenancy.
Conclusion:
Kresha v. Kresha Neb 725
Facts: Co-owner leased property without consent from the other co-owner
(P). Latter brought suit. Dissolution decree awarded the land to P and P
brought forcible entry and detainer action.
Issue: Whether P’s land was subject to the D’s leasehold interest
Rule: One of several tenants in common can lease his own interest to third
persons
Conclusion: P acquires the property subject to the lease
Sawada v. Endo Haw 728
Facts: After P was injured by an uninsured motorist (D), D transferred his

and his wife’s tenancy by the entireties interests to their son. P brought suit to
set aside the conveyance.
Issue: Whether P could attack a tenancy by the entireties.
Rule: The interest of a husband or a wife in a estate by the entireties is not

subject to the claims of his or her individual creditors during the joint lives of
the spouses.
Conclusion: Conveyance was not fraudulent.
Notes: In most states with tenancy by the entireties, the interests of P would
be held until the wife dies first. P was an involuntary creditor. Most property
in Hawaii is owned by four trusts.
Condominiums and Cooperatives
Condo
– Buying the cube of air – do not have the right to have the building repaired
in case of destruction.
– tenant in common for the common areas
– cannot sell or rent your share of common areas separately
Co-op
– tenants are shareholders in a corporation that owns the building
– % of ownership depends on size of apartment
– single mortgage on entire mortgage
– rent paid goes to mortgage and common area
– fewer than 10 co-op survived the depression in NYC b/c you pay the portion
of the rent of anyone
that leaves
– today it is now possible to get a mortgage on the co-op rented interest so

the buyer does not have to pay
cash up front
Restraint on Alienation
Wolinsky v. Kadison Ill 738
Facts: P who already owns a unit, wants to move into another unit. Condo D
exercises right of
first refusal. P yells invalid restraint on alienation, a vote of less than 2/3, and
discrimination
Application: The board owns a duty to the members to act in a reasonable

manner
Conclusion: The ordinance may have been violated
Aquarian Foundation, Inc. v Sholom House, Inc. Fl 741
Facts: Member sold her condo unit without obtaining consent from
association (D) and thus
triggered a reverter clause that stated she lost her condo. D also wants
damages. TC found for D.
Application: Imposes no obligation upon the association to compensate the

unit owner for the ability to
reject offers. Not the same as a right of first purchase.
NOTES: Florida condo owners have the most rights in the US
Breene v. Plaza Tower Association N.D. 745
Facts: Condo adopted provision with a ¾ vote that prohibited rental units. P
requested permission to rent his unit and was denied.
Application: Any drastic changes that the board makes are only applicable
to future buyers
NOTES: NOT THE NORM!
Reasonable limits on Condos
O’Buck v. Cottonwood Village Condos Alaska 750
Facts: $155,000 in roof damages to condo which adopting a rule prohibiting

antennas. P had four TVs and
antennas and did not want to pay for cable.
Application: In order to preserve a uniform exterior appearance and

enhance marketability, the board was justified in prohibiting antenna.
LANDLORD – TENANT RELATIONS
4 TYPES
Term for years lease – any lease with a definite starting date and a definite
ending date (SOF limitations)
– no notice is required to terminate after term, must re-contract for new term
– 99 year leases are often named a fee simple with a reversion
Periodic lease – defined period that automatically renews unless broken by

leasee or leaser.
– had to give notice on first or last day of period in common law
– to raise rent, had to notify and stop old lease then notify and start new one
a day later
At-will lease – no defined dates or periods
– requires no notice
– terminate upon death of tenant or landowner
– terminates if land is sold
– Uniform Landlord-Tenant Act – states there must be a 30-day notice to

terminate and tenant must
pay rent. (Adopted by some states)
– NJ has three month notice
At-sufferance – held over after the termination of a lease
– tenant may be bound for a new term or treated as a month-to-month tenant
RULES
– courts are looking at leases more as contracts than property conveniences
– American rule – landlord only has to give the legal right to possess
– English rule – landlord must give actual possession
– Common Law rule – landlord has no obligation to protect tenant against

third parties
– landlord gives Covenant for Quiet Title – stating landlord, agent of

landlord, or anyone with superior title
cannot bother tenant
– Common Law rule stated there was no Covenant for Fitness
– no obligation to repair in commercial leases
– Eviction: a violation of a covenant of a lease by a landlord dependent on

the obligation of the tenant
Actual – physical, changing of locks, force
Total – tenant physically barred from property, eliminates future duty from
tenant
– may have tort against landlord (forcibly entry or detained)
Partial – landlord has taken a part of the property
– no duty to pay rent
– some states proportion the rent
Constructive – taking action which causes the tenant to feel insecure but no
physical act
– letting band or dynamite factory rent one of the landlord’s apartment
– tenant is free from all future obligations
– Common Law states tenant must move out VERY promptly
Total – as above
Partial – NY leads the way
– air conditioner that leaked green goo
Remedy for Landlords:
Summary Eviction Procedure – shorter time frame
Common Law states you could fail to renew lease for any reason
Offer to surrender: Landlord can:
1. Accept – tenant has no obligation
2. Refuse, Sit and do nothing – most states say there is duty to mitigate
3. Refuse, Seek replacement
– tenant pays any decrease in rental income
Vasquez v. Glassboro Service Association, Inc. NJ 767
Facts: P was recruited to work on farm, was fired, and kicked out of housing.
Application: A farmworker who possesses a mattress and locker in a

barracks is different from a
superintendent or janitor residing with his family in a apartment building.
Sommer v. Kridel NJ 787
Facts:
Issue:
Minjak Co. v. Randolph NY 832
Facts:
Issue:
Rule:
Implied Warranty of Habitability
– property must be livable; including means for heat, electricity, hot water,
no infestations, plumbing, fire
safety, crime safety, waterproof, structural integrity with a minimum number

of windows, sanitation;
lighting, stairs, sometimes telephone lines, stove
– renting rooms generally not applicable to rule
– covers tenants, others who live in the apartment, others who live in the
building, social guests who were
harmed because of the condition, business invitees harmed, tresspassers

harmed (split in states), neighbors
harmed through damage from landlord violation (minority view), passers by

(rape victim dragged into
unlocked apartment building) (minority view)
– tenant can use act as
Defenses
– an affirmative defense in an eviction
– reason to terminate the lease and move out without being bound
– tenant must notify the landlord unless the listed violations are fixed in 14 or
21 days
– abatement (reduction) of rent, remainder to a escrow account

– repair and deduct (some states say no more than one months rent per year)
Offenses
– order to repair
– suit for damages to recover rent
– physical injury and emotional distress
– property damages
– criminal injuries (half of states)
– 20 states say the warrenty is waivable on a separate agreement
– landlord defenses:
– ignorant of situation, no notice, or not enough time after notifacation (most

states)
– not a violation
– violation was caused by the tenant unless it affects other tenants
– repair is under way
– no such condition
Javins court says landlord is provider of goods and services
Retaliatory Eviction
If tenant complains on good faith:
– can’t refuse to renew lease
– can’t raise rent more than others
– can’t take away services
However, in some states the complaint must be vaild. If not, there is no

retaliation claim
Tenant can complain to: government agency, landlord, tenant organization,

court
6-month period from complaint (some states 1-year)
There are several defenses

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Red covenants (covenants which run with the land at law) | 4 Law School 8/19/18, 9'28 PM

Red covenants (covenants which

Professor: Dean Deutch

Johnson v. M’Intosh p.25 US

Application: Either because of the state of conquering of the decree of 1763,

Conclusion/Holding: Judgment for Defendant

Ejectment cause for action. (gets trespassers off)

Decree of 1763 gave no right to Indians to sell property

Tee-Hit-Ton Indians v. United States p.36 US

Issues: Whether the tribe has the right to unrestricted possession,

Application: There has been no recognition by Congress of any legal rights

Conclusion/Holding: Indian occupancy may be extinguished without

Pierson v. Post p.51 NY

Rule: Property in such animals is acquired by occupancy only. Pursuit alone

Application: Mere pursuit gave Post no legal right to the fox.

Conclusion/Holding: Judgment reversed

Dissent: Kill all foxes. If hunted professionally, it should go to pursuer.

Elliff v. Texon Drilling Co. p.56 Tex

Rule: The landowner is regarded as having absolute title in severalty to the

Application: The negligent waste and destruction of petitioners’ gas was

Conclusion/Holding: Judgment reversed

The law of capture modifies by allowing a producer to become the owner of

Can’t use injurious capture/drilling – liable if do so

That rule modified by negligence – must capture – if not – just waste – no

Water: natural situation prevails – surface water system

streams/groundwater – prior appropriation/use – 1st user owns

permit system – state/organizations gives permits

reasonable use – balance rights of all

correlative rights – defined water for each user

free use/absolute ownership – creates conflicts

International News Service v. Associated Press p.66 US

Issues: Whether defendant may lawfully be restrained from appropriating

Dissent #2: An essential element of individual property is the legal right to

Moore v. Regents of the University of California p.82 Cal

Issues: Whether it was a breach of fiduciary duty to disclose facts material to

Application: The complaint does not satisfy the established requirements of

Conclusion/Holding: Should be left to Legislature.

Dissent: The complaint fully satisfies the established requirements for a

Nome 2000 v. Fagerstrom p.136 Alaska

Conclusion/Holding: We conclude that the defendants adversely possed

Where physical visibility is established, community repute is also relevant

continuous – be there physically

hostile (intend to deprive the owner)(adverse) /under claim of right (could

One objective test used, or

Two subjective tests used:

Intentional dispossession – the adverse possessor must be aware that she is

Good Faith – those who mistakenly occupied property owned by someone

Reasons for AP:

3. Keep land claims alive (Doctrine of repose)

Burden of proof belongs to the AP

Standard of proof is clear and convincing evidence (preponderance of the

Community Feed Store, Inc. v. Northeastern Culvert Corp. p.169

Facts: P sought a prescriptive easement for a parcel of land 60 X 90 feet

Conclusion/Holding: Judgment reversed.

—–Gravel area in question

Acquiescence – acting like you have possession as the owner (mindset of

Brown v. Gobble p.141 WV

Application: The land appeared to be part of the defendant’s property. They

Conclusion/Holding: Judgment reversed.

Charrier v. Bell p.115 LA

Application: The descendants of former Tunica Indians have adequately

Conclusion/Holding: Judgment affirmed.

Grave robbing case

Items can be either lost, mislaid, or abandoned