Acquiring Ownership Concurrent & Marital Interests Divided Ownership Interests RAP Common Resources Rights of Owners Land

Use Controls Easements Covenants Zoning Landlord-Tenant Takings Intellectual Property Acquiring Ownership Top of the Document st 1 Possession/Capture: CL rule of first-in-time, first-in right;
person who (1) controls or holds the property, with or without a claim of ownership, (2) w/ intent to possess, is the original possessor w/ greater rights than the world. Johnson; Pierson unless wild animals on private property (ratione soli) o (lockean theory that proprety rts gained by taking thing out of nature/mixing with ones labor) (cr: over-killing, inefficient, tragedy of the commons) o First in Time: limited by fair play norms (Keeble) (may not sabotage neighboring Ps profitable use of land but can compete); where incomplete (or unclear) possession, equitable division (Popov) o Custom: use custom if accepted/makes market work (Ghen) Find: person who (1) takes control over the property (2) with intent to maintain possession of the property; greater rights to the found property than the whole world (exc. Rightful owner) Armory. (But, see South Staffordshire: locus owner constr. possession of objects attached to property, unless he has not made it personal space Hannah) Mislaid goes to property owner (McAvoy). Can only find lost items. Part of body: Cannot own another person b/c of unalienable rt of self-ownrshp so body parts not defined as property (Moore)
By accession: ownership given to somebody who mistakenly takes physical object that belongs to someone else and transforms it through labor into fundamentally diff. object

o Continuous: successive periods tacked only if in privity o Disability (infancy, handicap): Usually requires AP to maintain possession for 10 yrs after the disability is lifted.

Concurrent & Marital Interests

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Tenancy in Common: separate but undivided interest, no survivorship (passes to heirs); dominant form of ownership o Presumption of TIC for conveyance to 2+ unmarried persons Joint Tenancy: right of survivorship (no conveyance after death) o Four unities: time, title (same instrument), identical interests, equal right to possession rd o Destroyed when one JT conveys interest to 3 party (Riddle) o By Agreement partition; results in TIC. Court favors splitting the parcel into smaller parcels by share (kind) rather than sale against parties will. Delfino (partition by sale awarded where division impractical AND sale promotes interest of co-tenants) Tenancy in Entirety: 4 unities + marriage o Severance by one tenant impossible; so long as both parties alive and remain husband and wife, neither can break it. o Court distribute marital property upon divorce; benefit from prof. degrees not property (In Re Marriage of Graham); but see Obrien (earning power increased during marriage; prof degree subject to equitable division)

Divided Ownership Interest

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Possessory Estate: interest in land which may become possessory Fee Simple: Owning estate (freehold), no limitations on inheritability, endures over time, transferrable, ends under escheat Future interest:
Remainder: capable of becoming possessory; follows FT, LE, term of years; vested (in ascertained person/certain to become possessory) vs. contingent (subj. to condition precedent or remainder in unascertained person) Right of entry: follows FSSCS (grantor must exercise right of entry) Reversion: follows LE To A for life (automatically reverts to grantor) Possibility of reverter: follows FSD (in grantor) Executory interest: future interest in grantee that, in order to become possessory, must cut short prior estate OR spring out of the grantor.

Gift: Present transfer of property by one person to another w/o consideration or compensation, where (1) intent to make gift (2) delivery (actual, symbolic, constructive), (3) acceptance (implied if item has value) Gruen o Constructive: allowed only where delivery impracticable (Newman) or if donative intent concrete/undisputed (Scherer)
Ad Coleum: owner of land owns underneath & above the land (to whom land belongs, he owns to the sky and the depths) Accretion: gradual change in banks bordering running water may add or subtract to an owners land b/c boundary line of the property remains at the center of the new stream STB vs. Avulsion

Adverse possession: Possession which is (1) actual (same

physical use as a rsbl owner) and exclusive (2) open and notorious (see blw) (3) adverse under a claim of right (4) continuous for the length of the SOL o Open/Notorious: Actual N (minor) (Manillo)/Constr N (mjr) o Adverse: Rsbl owner (Manillo); good faith OR bad faith o Actual: AP gives title only to tract used; excptn: color of title (constructive possession of entire tract in deed)

EstateDuration..Alienability.. Language .. FI in Gr FI in Grantee FSA: (perpetuity; !divestable; transferrable, to A & his heirs) F Tail: (Until A & line dies out; reversion; to A & heirs of his body, remainder) LEstate: (measured by one or more specific persons, alienable up to entirety of own interest, To A for life *reversion+, To A for life, then to B *remainder+, To A for life, but if .. to B *exec. Interest+) Construction problems if language unclear, presumption is FSA (White) Life tenant can enjoy land but cannot commit waste (unreasonable impairment of value, affirmative, permissive); ameliorative [increases value] OK. Woodrick FSD: (As long as condition met, To A & his heirs so long as until while, possibility of reverter, executor interest) MUST HAVE DURATIONAL ASPECT; mere statement of purpose not enough to city for purpose of creates FSA. Marenholz FSSCS: (Until happening of named event and reentry, To A & his heirs but if , right of entry) FSSEL: (As long as condition met, then to third party, To A & his heirs for so long as and if not, to B, executor interest)

Rule against perpetuities

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 Interest must vest, if at all, not later than 21 years after some life in being at the creation of the interest. (create, kill, count) For each validating life we identify, determine whether, 21 years after that persons death, we know that the interest will either vest or fail. If we dont know, it violates the rule o Applies to: contingent remainder (e.g. first son to reach 25), contingent exec. Interest, vested remainders subject to open o CL assumes: Any person living capable of children, any person living may subsequently marry someone unborn, anybody can die at any moment o To overcome: assign future interest in the grantor o Reforms: Wait-and-see: wait either 90 yrs/traditional perp. period

Common Resources

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o Tragedy of the Commons: Over-exploitation; individuals overuse resources b/c its in their interest not communitys. Solutions: Socialization, privatization (but cant parcelize everything); cf, anti-cmns problem: needing permission from everyone creates hold-out issues o Social Norms: Members of grps w/ repeat plyrs develop wealth maximizing norms in shadow of law. Shasta County Cows

Reservation: owner of land conveys land to another but reserves for himself an easement; can be reserved in favor of rd 3 person (Willard) o Implied on basis of prior existing use: land severed from common owner, use existed prior to severance (discoverable through reasonable inspection; Van Sandt), easement at least rsnbly necessary to enjoyment of DT; Van Sandt o Easement by necessity: at time of severance; reqs: strict necessity, parcels were under common ownership b4 conveyance, necess. comes into existence b/c of conveyance; see e.g. Othen (landlocked parcel) o Prescriptive: (like AP) open/notorious, non-permissive, continuous/uninterrupted use, exclusive (unauthorized use is distinct) o Rights unspecified in express easement can be created through prescription (bathing not boating rts Miller) Transfers of Easements & Scope: o Cmrcl easements in gross are assignable (Miller) but must be exercised as one-stock (avoid overburdening use by one user) o Easements normally not allowed to extend to additional property owned by him; but see Brown (no injunction since no additional burden) (rejects proxy approach in Miller)

Covenants & Equitable Servitude

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Rights Of Owners

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o Right to Exclude: Inherent right of prop ownership; to protect state can apply punitive dmgs for intl trepass (Jacque) But right not absolute; can be contravened by necessity, public or private (State v. Shack) o Right to Abandon: Must be intent to abandon (expr./impld) and an act of abandonment; must not vest in another prsn, must have no intent to reclaim o Real property cannot be abandoned when still possess deed (Pocono Springs, ownership resides w/ deed) o Right to Destroy: rd o If no harm to 3 parties right to destroy o If externalities, courts conflict on whether theres a right (see Eyerman, cant destroy house where architecturally significant, otherwise against public policy) Cf, Kafka: if we dont follow artists wills, may destroy work in their lifetimes

Land Use Controls

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Nuisance: intentional, substantial (unrsbl and injurious) nontrespassory invasion or interfrnc in anothers use of land Intentional: purposeful OR w/ knowledge of (Morgan) Unreasonable: tradl (threshold std.) (Morgan; Jost) vs. balancing of the utilities (harm > utility) [Based on avg. person
reaction]

o bind successors in interest if (i) intent tp bind successors (ii) notice (iii) touches/concerns the land (iv) privity o Horizontal (landlord-tenant, grantor-grantee, cmn grantor) and vertical prvty (covenantar and successor) reqrd for covenants; o but see Neoponsit (vert. prvty established by homeowners assoc., act as agents for owners) (free-rider issue) Equitable Servitudes bind successors in interest if (i) intent tp bind successors (ii) notice (iii) touches/concerns the land (if a covenant fails, court may imply equit. srvtude usually b/c privty) Notice: actual (Tulk), record, imputed, inquiry (Sanborn) Duty of inquiry imposed on purchasers about covenants affecting their land (Sanborn) Touch and Concern: Only negative covenants were recognized under CL; aff. Covenants enforceable by HOA unless violate publ. policy; bigelow test: substantially affect legal relations (Neponsit) Terminating Covenants & Common Interest Communities o Cant be discriminatory; Shelley (racial restrictions) o Changed conditions: look to see radical changes o Abandonment: voluntarily relinqsmnt of title, claim, and possession w/ intention of termnting ownership (Pocono Springs) o Common interest communities: Covenants enforced in common intrst comm. enforceable unless restriction is arbitrary, imposes burdens >>> benefits, or violates pub pol (Nahrstedt); similarly defer to good-faith decisions by directors in cooperative (40 West)

Zoning

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o Ds: (1) consent (2) SoL (3) coming to nuisance o Remedies: Do nothing; Injunction (Morgan); Dmgs to P (Boomer); Compensated ijunction (Spur Industries) Easements: non-possessory privilege to use land of another
o Affirmative: entitles owner to do physical act (e.g., rt to enter); Negative: prevents owner from making certain uses of land o Appurtenant: benefit tied to piece of land (dominant tenement) land burdened (servient tenement) o In Gross: benefit not tied to any particular parcel; attaches to holder o Creation:

o Municipal zoning ordinances constitutional will only be struck down if they are arbitrary, unreasonable, and not connected to health, safety, morals. (Euclid)
o Zoning presumed constitutional; control both common law nuisances + negative externalities (traff, noise, sun, aesthetics) o Constitutionality unquestioned; may challenge reasonableness as

applied (Nectow)
o Non-conforming use (use of land that was lawful prior to ordinance) amortization of the nonconforming use valid unless length unreasonable

o Express: in writing to satisfy SoF; created by a deed or will

(See e.g., PA Northwestern, 90-day grace period unreasonable) Zoning Means & Ends:

o More emphasis today on discretionary, lot-by-lot zoning than Euclideanbased decisions (risk corruption, abuse of power) o Flexibility provided by amendments, variance, special excp. o Amendments: presumed valid; spot zoning forbidden o Spot Zoning: Rezoning confers special bnft on small parcel o Variance: authorize deviation from strict enforcement of zoning ordinance b/c of special hardship (stems from land); not contrary to publc interst o Special exception: use authorized conditioned on specified condt.

Aesthetic Zoning: o If not arbitrary (i.e. general welfare and happiness of community), and prop. value stabilization, ordinances are permissible for aesthetics. Stoyanoff. o But, cannot be so vague that ordinary person cant meet. Anderson. (Stoy looks around; no notice in Anderson) Exclusionary Zoning Distinction b/w excluding uses (residential-only) and ppl; zoning must further general welfare. Limits on Zoning: th o Takings Clause (5 Am.): no deprivation of all econ. viable uses o Exclusionary Zoning: use of z-laws to excl minorities/poor o Equal Protection: Min. lot size; floor space reqs; town acts w/ P to discriminate (strict scrutiny std.) o FHA: bars discrim. in rental/sale of dwelling b/upon race, color, rlgn, ntl orig., sex, familial status (#kids) OR handicap (See City of Edmonds, cap on total # of ppl OK; cap on composition of households not exempt must make rsbl accommodatins) o State Case Law: city needs to affirmatively provide variety of lowand moderate- income housing to satisfy fair share of regional need (Mt Laurel 1) Mt Laurel 2: every region must provide for its poor except where poor disproportionate % of pop. o Proving Discrimination: Disparate impact on group; Disparate treatment on individual (Soules)

(1) leave tenancy vacant: sue tenant later for accrued rent (2) Mitigate dmgs: reletting premises to new tnant and sue orig. tnant for unpaid balances a. Mdrn: most states require landlord to make rsbl effort to mitigate dmgs caused by abandonment (Sommers) b. Incentive: if l-lord makes rsbl effort to relet and unsucc. gets full balance of broken lease c. Mechanics of Mitigation: same effort any commercially rsbl llord would undertake (effort advertising, showing, etc.) (3) Terminate the lease Eviction: summary eviction (simplified lit.) vs. retake w/ self-help (peaceable methods, still risk of violence/unjust evic.) Implied Warranties: Quiet Enjoyment/Habitability Quiet Enjoyment: Lease voided if constructively evicted Substantial Interf.: fundamentally incompatible w/ use Must vacate (Old CL) vs. can stay (RST) Must arise from fault of landlord not another tnant Habitability: impld cvnant of initial and contng habitability If landlord breaches t-nant relieved of obligation to pay d/n need to vacate (unlike quiet enjoyment) Obj. std: uninhabitable to rsbl person Policy: For leasehold is a package of goods (incl repair); Against affordable housing (see Chicago Board Realtors, duty on landlord ++rents to cover upgraded housing) Remedies: o Remain in possession w/hold rent (breach of impld wrrnty is defense to summary eviction/collect back rent) o Repair and deduct repairs o Remain in possession and sue for dmgs: value as wrrnted as is (Hilder) o Terminate leasehold on reasonable notice

Landlord-Tenant

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Takings

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o Leasehold lack ownership; still have right to exclusive poss. o Tenancy For years: last for some fixed period of time, To A for 10 years, ends at stated period w/o A or B acting o Periodic Ten: Tenancy for some fixed period that continues for succeeding period until A or B terminate; To A from month to month; ends with notice from 1 prty at least = to length of time period (1 full mo. for m-t-m) (for 1 yr, 6 mos.) o Tenancy at will: Tenancy of no stated duration that lasts as long as both parties desire; To T for and during the pleasure of X (T/X may terminate); usually ends after 1 prty displays intention that intention should end. o Tenancy at Sufferance: tenant wrongfully holds over after termination of the tenancy; Bs lease expires but continues to occupy premises; terminates when l-lord evicts Landlords Duty to Deliver Possession o L-lord obligated to deliver legal right of poss. (not actual poss.) to tenant (i.e. if l-lord double leases, violates duty to dlvr legal poss. so lease may terminate and lessor recover dmgs) (American Rule) See Hannan: landlord has no duty to oust trespasser o English Rule: duty to deliver actual/right to possession. (carries out intent of prtys; bargain for property, not suit) Termination of Tenancy: (how does tenancy end? How to retake?) Surrender: l-lord ends lease early; l-lord and tenant both agree to terminate lease Abandonment: tenant may abandon property; requires: Vacation of prop; lacks intent to return; defaults on rent Remedies for abandonment:

Public Use: th Eminent domain governed by 5 Amd. Takings Clause: Nor shall private property be taken for publ. use, w/o just compensation. Public use = public purpose test; Economic development a valid justification for eminent domain (Kelo); [? whether govt can identify best use.] Just compensation = fair market value (not sentimental attachment) Categorical Takings Per Se Takings: Permanent physical occupation is taking regardless of objectives (Loretto); Distinguish b/w temporary and permanent occup. Penn Central balancing test applies for cases of physical invasion short of perm. appropriation (Loretto) o Cf, When a city regulates to prevent a nuisance/noxious use no taking, no compensation. (Hadacheck) Chattels: Per se (Loretto) rule applies to personal as well as real property (Nixon) o Regulatory Takings Govt can take land by changing how people are allowed to use it. If the regulation denies owner all economically viable uses of land Taking (Lucas); deprivation = 100% (see Palazzolo, where a 94% DiV was not held to be a taking.) Regulations that do not fall under per se rule are subject to four factor test: (Penn Central) (1) economic impact/burden of regulation (2) nature of govt action (regultry interfnce or physcl taking?) (3) interference w/ DIBE (aimed towards problems of proof)

 (4) Extent of nuisance/harm prevention (Forcing benefits taking, preventing harms, less likely) Regulations that impose temporary moratoriums or otherwise affect time slice conceptual severance may trigger a Lucas analysis but that does not mean they trigger a Lucas taking. (Tahoe Sierra) Unclear if a judicial decision can constitute a taking (Stop The Beach)

(4) Non-obviousness- nontrivial extension of what was known before Statutory Bar: No patent if in public domain for more than 12 mos (patented, described, or in public use) No obligation to use patent (Continental Paper Bag)

Intellectual Property

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US Cont. art. I 8 authorizes Congress to promote the progress of science and useful arts, by securing exclusive right to respective writings/discoveries to authors/inventors. Copyright: must be original, work of authorship, and fixation. (not facts, ideas) Original: Compilations and derivative works i.e. which use preexisting data or material may be copyright if they are sufficiently creative. (sufficient originality test Feist) Authorship: Ideas cannot be copyrighted. (Baker) [idea-expression distinction protects the ideas expression, not the idea itself. Copying: C-right protection d/n prevent imitation (Cheney), just reproduction, deriviative works, and distribution. 17 USC 106 Except for news which has quasi-copyright of facts in relation to other providers (but not general public) (INS v. AP) Infringement; reqrs showing: (1) ownrshp of valid (2) D copied work (3) improper appropriation (ie, subst. simlrty) Copying governed by sliding scale; where more access, less similarity reqrd (inverse true, too) Arnstein Fair Use: rsbl use of material w/o owners consent. Test: Purpose/Character of use Nature of d work Substantiality of the portion used **Effect on the potential market o Fair use guards against transformative uses ones that rely on d work as raw material to create new and diffrnt works. o See Harper: Magazine publishes unpublished excerpts of Fords memoir; not fair use b/c (b) copyrighted work was unpublished and (d) publisher cancelled the contract. Commercial Parody: a fair use even though substantial components of the original o Acuff-Rose: rap parody allowed regardless of whether in good or bad taste. Most important factor is the effect on the market; see if parody gets more notoriety, generates more sales might be a synergistic effect on the original Term Extension: Congress has authority to extend so long as there is a rational basis for the extension. Eldred (extension to life +75 yrs alright since it incentivizes creativity and distribution of works)

Patents
Four Necessary Elements (Interpreting USC 101) (1) patentable subj. matter Involves human ingenuity; see Diamond (bacterium nonnaturally occurring, product of human ingenuity; patentable) Non-naturally occurring d/n mean biologically exceptional (Moore) (2) Provides a benefit: invention must have been reduced to a production (Brenner) (3) Novel: No patent if invention (1) known or used by others in US OR (2) patented/published anywhere