Assignment 1: Right to Exclude Others (from private property)

 
1. Owner of land owns a bundle of sticks/rights - not absolute
a. May have some distinct rights but not others
i. Right to exclude
ii. Right to transfer
iii. Right to use
iv. Right to possess
2. Possession - the controlling or holding of personal property, with or without a
claim of ownership
a. Two Factors
i. Intent to possess
ii. Actually controlling or holding the property
b. First in time, first in right
i. Chronological first possessor has the better title
ii. A good faith purchaser or adverse possessor can acquire title
superior to those who came into possession earlier
iii. Title from a thief is void title.
c. Actual possession
i. Mortal wounding gives a hunter right to possession (constructive
possession)
ii. Pierson v. Post (NY 1805) Post lost on appeal because he did
not physically seize the animal before another.
d. Constructive Possession - has the same effect in law as actual possession,
although it is not actual possession in fact.
3. The Right to Exclude Others from Private Property (free use and enjoyment of
land)
a. Trespass to land
i. Physical Trespass
i. No harm need be shown - nominal
ii. Intentional and brazen trespass onto private land.
1. Policy: $1 fine does not deter unlawful behavior
(neither does $30 ticket)
a. Protects private property rights
b. Right is hollow if legal system has
insufficient means to protect it
2. Distinguished from Bernard rule (libel): If no actual
harm, no punitive damages
a. Policy: distinguishable because there is
actual harm -- can equal adverse possession
3. Jacque v. Steenberg Homes (Wisc. 1997) Mobile
home trespass, when nominal damages are awarded for an
intentional trespass to land, punitive damages may also be
awarded at the jury's discretion.
iii. Privileged entries cannot be held as trespass
ii. Non-physical Trespass
 i. Nuisance- An unreasonable activity or condition on the
defendant's land that substantially or unreasonably interferes with the
plaintiff's use and enjoyment of his land
ii. "A nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard."
b. Trespass to chattel
i. Must cause harm to be liable for trespass
i. Hamidi v. Intel, emailing employees (Ca. 2003) -Trespass
to chattels does not encompass an electronic communication that
neither damages a recipient computer system nor impairs the
functioning.
ii. Majority: Electronic mail does not constitute harm
iii. Minority: Supports injunction
c. Trespass remedies
i. Injunction: must show actual harm or high probability of future
harm
ii. Damages: actual and punitive
i. Policy: don’t want to bog down judicial system with claims
that have no merit
ii. Punitive damages can be awarded to deter unlawful
behavior
 
4. Principal Problem: Carl leaning on Amanda's car even after being asked not
to. State conclusions as to Amanda's cause of action.
a. Having clean property rules can generally help avoid conflict.
b. Broad or narrow interpretation of holdings
c. Judges have choices… the law doesn't just change with the wind.
d. Where is the line drawn? Most people don’t care if their car is touched
in a non-threatening or non-harmful manner but most people would not have
cared if Steenberg had taken the mobile home across their property either. The
importance of the point of the law is whether it be real or personal property the
state has the obligation to protect it. Carl was fine leaning on her car until she
asked him not to do it anymore. At that point in time Carls leaning upon her
personal property became a trespass upon personal property.
 
 
 
Assignment 2: The Right to Exclude from Semi-Private Property: Free
Speech Rights vs. Property Rights
 
1. Sliding Scale: More it resembles public property, the less owner's exclusive right
to land
a. Policy: Rights of owner v. rights of individual
i. Right to exclude limited if you let people live on your land – you
can't exclude everyone
 i. Property rights serve human values – they are recognized to
that end and limited by it (State of New Jersey v. Shack and
Tejeras (NJ 1971) - Real property rights are not absolute;
and the necessity, private or public, may justify entry upon
the lands of another)
ii. The more private property resembles public property, there is a
counterbalance between expressional and property rights
i. Marsh v. Alabama (1946) - paramount right of citizens to
be informed overrode the rights of the property owners
iii. Owner: right to exclude most valuable in bundle of sticks, loss of
business
iv. Free Speech: have lost public forums, they too are invited on the
property, chilling effects negative, bad to discriminate as to what
the speech is when generally protected
v. Good rule: if there are limitations – one day a year, etc.
vi. Schmid Test - Three prong test to see if free speech is protected ()
i. What is the normal use of the property?
ii. What is the extent of the public’s invitation?
1. Smaller shopping center, not free speech?
iii. What is the nature of the visitors’ activities in relation to
the owner’s use?
1. Cannot be an interference with the landlord's profits
or shoppers enjoyment (reasonable)
2. Time, place and manner restrictions
3. FACE - Free Access to Clinic Entrances
iv. NJ Coalition v. JMB Realty (NJ 1994) - (represents
minority view) The extent of free speech rights on private
property depend on the nature of the use of the property,
the extent of the public invitation to use that property, and
the purpose of the speech activity in relation to the use of
the property.
 
2. Principal Problem: Furnish an opinion that the pro-life people have no right to
remain on the premises of this complex in which Dr. Land, an abortion doctor
and also your client, maintain an office.
a. State an authority that has a strong policy reason behind its decision
b. To what extent does the content of the leaflets and the purposes of the
leafletters in relation to the nature of the business conducted on the private
property influence the holding of NJ Coalition v. JMB Realty?
c. Depends almost completely on the distinction or type of premises. In NJ
it has to be a regional mall or something similar and the courts draw a pretty
bold line there. In most other states the cts. Don’t even make the distinction.
d. Shopping center probably wins in this case on the distinction of
premises argument.
 
Assignment 3: Landlord-Tenant: The Right of Exclusive Physical Possession
 
1. Leasehold Estates
a. Landlord: Reversionary interest
b. Tenant: Present possessory interest
c. Types of common law tenancies
iv. Tenancy (estate, term) for years:
i. Fixed period
ii. Automatically terminates at fixed ending
iii. Death of LL or tenant does not terminate lease (unless in a
JT or TIC of TBE, then majority holds you would need consent of
both/all or your interest would end with death of who gave you the
interest)
v. Periodic tenancy:
i. Automatically renews if no one does anything
ii. Must give notice to terminate
1. Common Law: for year to year, 6 months notice, for
other, a full period notice
2. Less than one year not subject to the statute of
frauds
iii. Death of LL or tenant does not terminate lease (unless JT
or TC or TBE)
vi. Tenancy at will
i. Either party can terminate at any time
ii. Death terminates lease
vii. Tenancy at sufferance
i. When someone is wrongfully on the property and get a
notice before being kicked out
ii. Usually someone who had a lease and overstayed
viii. Policy
i. Death: parties have come to rely on lease for particular time
(time tenancies not terminated w/ death)
2. Lease v. License
a. Lease - a contract and a conveyance
i. Possessory interest in land (+ contract law)
ii. Generally transferable
iii. Lease generally specifies specific area
iv. Sometimes a lease leads to exclusive possession of land, and
sometimes a right to exclusive possession of land leads to a lease (or a
lease has been created)
v. Beckett v. City of Paris Dry Goods (Ca. 1939) - An agreement to
permit the operation of a business in a store in an unspecified area is
a lease where the parties act upon it so as to relate to a specific place
and use the leasehold terminology in the writing
b. License - authorizes the licensee to use land in the possession of another
i. Permission to USE or OCCUPY (w/ consent of owner)
i. Not lease - NO possessory interest in the property
 ii. Football game, hotel room, etc.
ii. Generally not transferable
iii. License generally does not specify particular area
iv. Based on contract law, not property law
i. Indefinite – can end or be kicked out anytime
ii. Liability through breach of contract
v. Practical context (intent) must not be overlooked
i. Look to the language, but not dispositive
ii. Lease/license may be created through intent/rights given
lessee
iii. Lease generally sufficient to lead to exclusive possession
of land, but lack of a lease does not lead to lack of an exclusive
possession of land (reluctance towards license if create injustice)
vi. Policy: want to enforce based off actual terms of the contract,
not what they call it
i. ex: tax: state may want to term a lease so they can tax,
but look to actual use (Wenner)
vii. Wenner & Phoenix v. Dayton-Hudson (Ariz. 1979) - A license
agreement is formed when a tenant does not have exclusive
possession or any interest whatsoever in the premises being leased
Intent
i. Lease v. License when the city of Phoenix imposed a 1%
tax on income derived from profit made by those that held lease
agreements
 
3. Principal Problem - The State Department of Real Estate is attempting to
regulate the Resort on the theory that Resort is leasing real estate. Resort argues that it
is exempt from regulation since it is merely offering licenses, not leases. What is the
difference between a license and a lease?
a. A leasehold, being an estate, gives the right of possession or occupation;
b. Licenses, easement, and profits involve only right of use. (Clayton
County v. City of Atlanta (1982) - Right to operate commissary at airport mere
"usufruct" or license, not leasehold.

Interference with Actual Physical Possession and Quiet Enjoyment

1. Landlord Duties/Liability
a. Interference at the Commencement of the Lease
i. All: Lease = tenant's legal right to physical possession of property
ii. Majority (English rule): LL is required to deliver actual physical
possession
iii. Minority (American rule): LL is not required to deliver actual
physical possession
i. Policy: Since the landlord is not responsible for trespassers
during the lease, they are not responsible for 3rd party before the
lease begins
 ii. Remedy: Tenant is excused from paying rent for the period
in which they are unable to obtain actually physical possession,
though that may not give the right to terminate the lease
b. Interference During the Lease Term
i. Claim?
i. The tenant has a claim against the landlord
1. If the landlord interfered at the commencement of
or during the lease
2. If one with paramount title (over the landlord)
interfered at commencement or during lease
3. If 3rd party (neighbors) interfere and are under
landlord's control
ii. The tenant does not have a claim against the landlord if
1. A wrongdoer interferes during the lease (in the
absence of the landlords negligence)
i. Partial Actual Eviction - occurs when the LL deprives the tenants
of physical possession of some portion of the leased property, including denial
of access to the leased premises
i. Tenant entitled to enjoyment of entire property
ii. Remedy: not likely void lease (rest. against total abatement
for partial actual), reduce (abate) rent, affirmative actions (damages),
injunction to tear down what evicts (not best option)
iii. Smith v. McEnany (Mass. 1897) - The encroachment of a
structure upon a portion of a leasehold constitutes an eviction and a
defense to the entire rental payment otherwise due.
ii. Constructive Eviction - occurs when the LL so deprives the tenant
of the beneficial use or enjoyment of the property that the action is tantamount
to depriving the tenant of physical possession
i. Interference so extreme that reasonable person would not
stay
ii. Leave?
1. Majority: Have to leave to prove "truly evicted"
2. Minority: Some have no other place to go, but
situation is constructive eviction
iii. Remedy: Don't have to pay rent, if true constructive
eviction, break lease
iv. Blackett v. Olanoff (1977) - tenants deprived of quiet use
and enjoyment when LL leased property to a bar or cocktail lounge
iii. Covenant of Quiet Enjoyment - breach occurs when the landlord
substantially interferes with the tenants beneficial use or enjoyment of the
premises.
i. Past Duty: LL, someone under LL's control, or one with
paramount title would not evict
ii. Now Duty: LL substantially interfered with tenants
beneficial use or enjoyment
 iii. Remedy: Not likely void lease, possible reduce rent,
probably damages
iv. RSP § 5 (Carner v. Shapiro) - changes in the physical
condition of the premises which make them unsuitable for the use
contemplated by the parties.
v. Echo Consulting v. North Conway Bank (NH 1995) - The
law implies a covenant of quiet enjoyment, which obligates the
landlord to refrain from interfering with the tenants possession of
the premises during the period of tenancy

2. Principal Problem: Leo leased adjoining land to Theresa and to Tri-State Auto.
Theresa used a small portion of the land for trash storage for several years until
discontinued by the Health Department. The small portion being used was leased to
Tri-State. Theresa negotiated unsuccessfully for more space and then with the
approval of Leo enclosed the said space. Tri-State stopped paying rent. Discuss the
rights of the parties.

 
Assignment 4: Implied Landlord's Duties and Implied Conditions to Tenants
Obligations
1. Introduction
a. Questions
i. What LL covenants, duties and promises are implied under
different circumstances?
ii. When a LL breaches an express or implied covenant, what are the
tenants remedies?
b. Implied Duties - The law is protecting the reasonable expectations of the
parties
i. Custom
ii. Usage
2. Warranty of Habitability (beyond contractual promises)
a. Residential housing
b. Fundamental right: cannot be waived (even by staying on the premises)
i. Policy: Not allowing WoH to be waived causes LLs to raise rent
and abandon cheap housing options (rent $ up); in sum, sometimes will
benefit and sometimes hurt those it's designed to protect
ii. Knight v. Hallsthammar (1981) - A landlord's breach of the
implied warranty of habitability of rented premises constitutes a
defense to an unlawful detainer action even where the tenant
remains in possession of the premises after the alleged breach
c. Maintain property according to reasonable standard of habitability
i. Building code base line
ii. Standard may be higher or lower that building code
i. Ex: standards for rent control and low income housing
differ from base line
 iii. Doesn't include things which are unnecessary (air conditioning
probably not, but heat probably yes)
d. Split: LL liable without notice
i. Policy: Otherwise tenant can bring suit years later for problem LL
didn't know of (Knight dissent)
ii. Split: LL liable if has reasonable time to fix the problem (Knight)
i. Policy approach: least cost avoider – who would be in the
better position to know (discourage frivolous litigation)
e. Retaliatory Eviction: Landlord cannot evict tenant for reporting housing
code violations
f. Remedy: Possibly void lease, temporarily withhold rent, reduction in rent,
repair and deduct, affirmative action (pay and sue LL)
1. Warranty of Suitability
i. Split: Commercial property (Davidow, unfit for a medical office)
ii. Rationale: Cannot assume commercial tenant more knowledgeable
than residential
iii. Increased trend of consumer protection
iv. Can be waived
v. Davidow v. Inwood North ( 1988) - There is an implied
warranty of suitability by the landlord in a commercial lease that the
premises are suitable for their intended commercial purpose.
2. Tenant Remedies (VTRRA)
i. Test for non-expressed promises
1. Was it implied
2. Does failure justify termination of lease
3. If not termination, what remedies for tenant
ii. Policy: Independent v. Dependant Contracts
1. In past: contracts between LL and tenant were
"independent" and thus tenant required to pay regardless of LL's
actions (only remedy was for breach of contract)
2. Present: according to case and good sense, dependant and
thus tenant can offset costs w/rent
i. Void lease
1. If actually evicted or constructively evicted (Majority: and
left)
ii. Temporary withhold rent
1. Encourages LL to fix promptly
2. Some courts suggest tenant pay into escrow account –
shows T good faith (in case court rules for LL)
iii. Reduced (abated) rent
1. Pay long term lower rent and live with problem
2. Amount usually determined by court
i. Ex: LL breached through partial actual eviction (so
don't pay on part you don't use)
iv. Repair and deduct (I fixed it and am taking it out of rent) (Marini,
broken toilet)
 1. Must give LL notice so they have opportunity to fix
2. Could also repair and sue for cost of repair (Fee doesn’t
like)
3. Marini v. Ireland (1970) - Implied covenant of
habitability and livability fitness, LL must maintain leased property
in livable condition. If LL fails after notice then remedies
v. Affirmative Action (type of damage, pay and sue LL – limited by
contract actions)
1. Fair rental value less the fair rental value of the un repaired
condition
i. Contracted rent is only evidence of what fair rental
value is
2. Contracted rent less value in the un repaired condition
i. 1 & 2 require an expert testimony
ii. May compare to similar residences
3. Percentage reduction in rent – reduced by % enjoyment of
the premises has been reduced (Wade, UT)
4. Wade v. Jobe (1991) - There is a common law implied
warranty of habitability in residential leases
3. Types of Common Law Tenancies
i. Tenancy for Years
1. Has a fixed duration
2. Death does not terminate
3. Creation - express agreement between LL and tenant
4. Termination - automatically at the end of the period
specified in the agreement. Notice not necessary.
ii. Periodic Tenancy
1. Continues for successive periods until terminated (week to
week, month to month, year to year)
2. Creation - by express agreement but is most often inferred
from the facts
3. Termination - notice required (6 months for a year to year,
notice equal to the length of the period)
iii. Tenancy at Will
1. Rests on the uncertain foundation of the continuing
agreement of both parties, no designated period of duration
2. Creation - express agreement, but usually inferred from the
circumstances
3. Termination - at the will of either party, or at the death of
either party… modern statutes require notice of intent to terminate.
iv. Tenancy at Sufferance
1. Holdover tenant
 
4. Principal Problem: In May, Ted and Theresa Toro executed a three year
lease for a luxurious country estate @ $3000/month. The pool broke. Repair cost
$5400. They want 1 of 5 remedies:
 i. Pool unrepaired but pay $2400/month (market value)
ii. Repair pool and reduce rent $5400
iii. Abandon the premises for breach of implied promise to repair.
iv. Pay to repair and sue for the $5400 (must be certain)
v. Sue to recover difference between actual rent and fair value rent

 
Assignment 5: Landlord's Tort Liability for Personal Injuries
 
1. Landlord's Tort Liability for Personal Injuries: Who should fix?
1. Old law: Caveat Emptor – LL had no duty to repair and no liability for
personal injury due to lack of repair
i. Lessor not liable for harm caused by a dangerous condition that
existed when lessee took possession or came into existence after
lessee took possession (only duty to disclose latent defects)
ii. Exceptions:
1. If landlord contracted to make repairs, and didn't, but could
have if he had used reasonable care, the landlord was liable
for the plaintiff's injury
2. If knew of a dangerous condition that the lessee did not
know of, and the landlord failed to warn the lessee
3. LL liable for common areas & certain open spaces, but
only if could be discovered through reasonable inspection and
had reasonable time to repair (if not common area, unless
specified in contract & negligent in not repairing, not liable)
2. Present (common/statute):
i. LL has implied duties in "new common law"
1. Majority (over 40 states): Through courts or legislature
(Merrill, WY waited for legislature)
ii. LL may have implied duties other than the warranty of habitability
(if pool part of rent, implied duty)
3. Landlord liable for things which would be disclosed by a "reasonable
inspection"
i. Foreseeability: Degree to which landlord could foresee makes the
more liable
4. Frameworks for determining the landlord's liability
i. Strict Liability for defects
1. Split: If LL participates in the construction of the of the
building
2. LL generally not strictly liable (without negligence)
i. Policy: not continuing relationship with
manufacturer, not expertise, not able to exert
pressure to make product safe
ii. Strict Liability brought by notice
iii. Strict Liability based on the warranty of habitability
1. Some: no notice needed
 iv. Negligence (Merrill, WY reasonable care all circumstances)
v. Negligence with breach of warranty of habitability (Asper, girl
killed in fire) (Trentacost, liable 4 foreseeable robbery
1. Housing Discrimination
1. Common Law
i. Complete freedom in selecting or rejecting tenants
2. Modern Law: FHA (Fair Housing Act)
i. No discrimination (behavior) on the basis of (RCRSFH)
1. Race
2. Color/National Origin
3. Religion
4. Sex
i. M/F, not sexual orientation
ii. Schools can discriminate based on sex because of
Title 9 (education)
5. Familial status
i. Being a child or having a child under age 18
ii. Does not mean marital status
iii. Exception: Some permissible for retirement
communities
6. Handicap
i. Includes AIDS and possibly alcoholism but not
drugs
7. MAJORITY: Cannot disproportionately affect minorities
regardless of intent (Starrett, no quotas)
8. Additional: Unruh Rule for CA – no arbitrary
discrimination (Marina Point, not against children)
9. Exception: Miss Murphy Rule
i. If you have 4 units or less, FHA does not apply
ii. Except: Advertising rule still applies
ii. No discrimination in (Behavior) (STNFH)
1. Sale or rental
2. Terms or privileges
3. Notices, Statements, or Advertising with prejudice (Female
roommate wanted)
4. False representation (saying housing is unavailable when it
isn't)
5. Must reasonably accommodate handicapped
3. Reasonable Restrictions
i. Limiting number of people in unit
ii. Legitimate business reasons that don't violated FHA
iii. Everything not forbidden by FHA okay unless forbidden by state
statute (Unruh)
1. Can for marital status, sexual orientation, occupation
(Kramarsky, lawyer), pets (unless medical)
2. Assignments and Subleases
1. Assignment
i. Liability and relationships
1. Tenant 1 conveys to Tenant 2 leaving no interest or
reversion in the grantor
2. Landlord can go after Tenant 1 under privity of contract,
and possessing tenant for privity of estate
3. New tenant can require LL to fulfill obligations
4. If chain of assignees, assignees in middle not liable to LL
(A.D. Juilliard & Co.)
ii. Decisive factor for an assignment
1. All the rights are transferred (whole term of the lease)
iii. Indicators of an assignment
1. If part of the property is fully transferred (most) courts treat
this as a partial assignment
2. Payment is made directly to the landlord
3. Intent in the contact
4. Same rent
i. Exception: If payments are made from
lessee/assignee to tenant and they are higher than rent (but rest
indicated assignment) most courts treat this as an assignment
5. No right to repossess
2. Sublease
i. Liability and relationships
1. Tenant 1 conveys to Tenant 2 but keeps an interest or
reversion in the grantor
2. LL can only sue Tenant 1 for privity of contract, cannot go
after Tenant unless through equity
3. Sublessee must go through lessee to demand action of
landlord (no legal relationship with LL)
ii. Decisive factor for a sublease
1. If not all the time of the lease is transferred it is a sublease
(reversionary interest)
iii. Indicators of a sublease
1. Less than all the rights are transferred
2. Payment is indirect
3. Intent in the contract matters
4. Different rent
5. Right to repossess
3. Landlord can enforce promises against assignees or sublessees on two
theories
i. Privity of Contact (Contract theory)
1. Exists through those who have contracts: LL and T1, T1
and his assignees/sublessees, and LL and those who expressly enter
into contract with LL
2. Privity of Contract is between the first two parties (LL and
tenant), and further if expressly assumed
 3. Policy: Keeps original lessee from pawning off
responsibility
ii. Privity of Estate: Like a football being passed – the person with it
has the privity of estate
1. With whoever has control of the premises even without
consent of assignee
2. Not for subleases (insulated by lessee) but LL can go for
damages through equitable remedies
4. Tenant's Right to Assign or Sublease
i. If "not transferable" LL may withhold consent, but stronger case if
expressly restrict "for any reason"
ii. If "not transferable without owner's consent" MAJORITY holds
LL cannot arbitrarily withhold consent
1. Cannot withhold for more $
2. Can withhold for pets, financial viability, negative info
from previous LL, number of people
3. Tenant's Breach: Landlord's Remedies
1. Duty to mitigate
i. MAJORITY: Landlord required to mitigate (view is that lease is
commercial transaction rather than estate)
1. Landlord can subtract cost of advertising etc. to attract new
tenant
2. If reasonable effort, and new tenant pays less or needed
alterations to bldg. breaching tenant owes
3. Policy: Get LL back to as close original condition as
possible (reality a lot of effort on LL)
ii. MAJORITY: Tenant has burden of proof to show LL did not make
reasonable effort to mitigate (Isbey, Ruud, both tenant has to prove LL
did not make good faith effort)
1. Reasonable effort: what LL did in past and what other LLs
currently do for similar properties
iii. Policy for traditional rule
1. Doctrine of Surrender: If LL enters premises, "accepted"
tenant's "offer" to surrender the premises
2. Equitable: Not fair to force innocent LL to seek out new
tenants
3. Tradition: long standing conformance with property laws
(rather than "contract")
iv. Policy for duty to mitigate
1. Easy to clarify mitigating conduct is not acceptance of
surrender
2. Equitable: Outweighed by rules requiring only reasonable
mitigation efforts
3. Tradition: Was developed for agricultural land and today,
not complete conveyance as in past
4. Economies benefit because returns land to productive use
 5. Trend disfavors contractual penalties
6. Mitigation is favored in other areas of the law
v. ALL: $ from 3rd party offset from amount defaulting tenant owes
2. Landlord's Remedies
i. Sue at end of lease for all
ii. Sue in middle, collect for past, and new suit for future $
1. Policy: Difficulty of several claims and chance tenant will
leave jurisdiction
iii. Sue in middle, collect for past, retained jurisdiction for future $
(Mutual of Omaha, Utah company too loud)
iv. Sue in middle, collect for past, speculative $ for future
1. Policy: Too uncertain – will favor one side
 
Freehold Estates
 
Estate – freehold Language Future Future Interest in Characteristic
other than lease Interest in 3rd Party
Grantor
Fee Simple “To Joe None None Infinite Duration
Absolute (and his
heirs)”
Fee Simple “To Joe as Possibility of Executory interest Potentially Infinite
Determinable long as…” reverter (Fee Simple subject Duration, Condition
(subject to to executory Precedent Attached
condition limitation)
precedent)
Fee Simple subject “To Joe, but Right of entry Executory interest Potentially Infinite
to Condition if…” (Fee Simple subject Duration, Condition
Subsequent to executory Subsequent Attached
limitation)
Life Estate “To Joe for Reversion Remainder (vested Measured by
life” or contingent) someone's life
Determinable Life “To Joe for Reversion, Remainder (vested Measured by
Estate life as long possibility of or contingent), someone's life and
as” reverter Executory Condition Precedent
Limitation is Attached
Life Estate Subject “To Joe for Reversion, Remainder (vested Measured by
to Condition life, but if” right of entry or contingent), someone's life and
Subsequent Executory Condition Subsequent
Limitation is Attached
Lease (leasehold) “To Joe for Reversion Remainder (vested Measured by finite
 10 years” or contingent) period other than
someone's life
 
1. For all estates, don’t forget to list out the present interest, the future interests, and
who the reversion goes to
2. Present Possessory Estates
1. FSA, FSD, FSStCS, FSStEL, LE, DLE (x2)
2. Fee Simple Absolute
i. Language
1. "to A"
2. "to A and his heirs"
3. "to A in a fee simple"
4. If "to A so long as no attempt to sell," or "no marry"
restraint is void and A has a fee simple
i. Policy: courts frown upon restrictions on
alienability (ability to sell)
ii. Duration: Yours forever
iii. Future Interest: None
1. A living person has no heirs, only prospective heirs
2. Heirs only receive what has not been disposed of (no
guarantee)
i. Owner has all the rights to land, but not absolute dominion
(zoning, taxes, etc.)
1. Fee Simple Defeasible
i. Estate with a string attached: FSD, FSSCS, FSSEL
ii. Fee Simple Determinable
1. Language hints: durational language
i. While, during, until, for so long as, during the
time that
2. Condition Precedent
3. Duration: Potentially infinite so long as you don't violate
condition
4. Future Interest: Possibility of Reverter – (Executory
interest if in a 3rd party)
5. Breach: Automatically reverts to grantor
iii. Fee Simple Subject to Condition Subsequent
1. Language hints: the small print
i. "Provided, however" "but, if" "on condition
that" " if, however"
2. Condition Subsequent
3. Duration: Potentially infinite so long as condition does not
occur
4. Future Interest: Right of Entry or Power of Termination
5. Breach: must take affirmative action – not automatic
(executory interest if in a 3rd party)
iv. Fee Simple Subject to Executory Limitation
 1. Language hints: to new person
i. "until...then to" "but if...then to"
2. A FS with a reversion (FSD or FSSCS) in a 3rd party
(rather than original grantor)
3. Duration: potentially infinite so long as
4. Executory Limitation is subject to rule against perpetuities
2. Life Estate
i. Language: (not in years)
1. To A for life,
2. To A for the life of B
3. To A until he dies
ii. Future Interest Retained by Grantor: Reversion
iii. Future Interest Created in 3rd Party Grantee: Remainder
iv. Limited by the law of waste (goes so someone when you die – life
person must not commit waste)
v. Pur Autre Vie: life estate is measured by the lifetime of someone
other than the person with the interest
3. Defeasible Life Estate (can either be determinable life estate or a life
estate subject to a condition subsequent: see language hints under fee simple
divisible)
i. Future Interest Retained by Grantor: Reversion, Right of Entry
ii. Future Interest Created in 3rd Party Grantee: Remainder,
Executory Interest
4. Leasehold Estate (See other sections for more on leases)
i. Future Interest Retained by Grantor: Reversion
ii. Future Interest Created in 3rd Party Grantee: Remainder
iii. Limited by the doctrine of waste
1. Future Estates
1. Possibility or reverter, right of entry (power of termination), reversions,
remainders, executory interest
2. Created in the Grantor
i. Possibility of Reverter (FSD)
1. Automatically goes to grantor when condition is violated
ii. Right of Entry (FSSCS)
1. Gives grantor option to repossess when condition is
violated
iii. Reversion (LE)
3. Created in a 3rd Party
i. Rules
1. Must be created at the same time as the will
2. Never follows a FSD, FSSCS
ii. Remainder Interests (never follow a fee)
1. Absolutely Vested Remainders
i. Generally
i. Ascertained party
ii. Indestructible
 iii. Transferable
ii. Ex: "to A for life, then to B" "to A for life,
remainder to B for life"
iii. No conditions precedent other than the natural
expiration of prior possessory estates
iv. Must be theoretically possible to determine who
will get possession when prior estates end
2. Vested Remainders Subject to Divestment
i. Generally
i. Ascertained party
ii. Condition Subsequent (but, if, however if,
provided that)
ii. If A has right to immediate possession when
preceding estates determine
3. Vested Remainders Subject to Open
i. If additional people may later qualify for
membership in a class
ii. Closes when gift available
iii. Subject to RAP
4. Contingent Remainders
i. General
i. Unascertained party OR
ii. Condition Precedent (if, while, during, so
long as)
iii. Subject to RAP
ii. If must fulfill some condition other than natural
expiration of preceding estates
iii. Executory Interests
1. Cuts a life estate short
2. A 3rd party who has the possibility of reverter or right of
entry
3. Subject to RAP
4. Subsequent OR Precedent
i. Do NOT ask when the condition will apply or occur
ii. Precedent: If, while, during, so long as (durational flavor)
iii. Subsequent: But if, however if, provided that (small print)
iv. Distinction will be in the language!
2. Rule Against Perpetuities
1. Only violated through future interests
i. Executory Interests
ii. Contingent Remainders
iii. Vested Remainders Subject to Open (all or nothing)
1. Vests when someone qualifies and the gift is available for
distribution
iv. Trusts
1. Subject to RAP
 2. Not a separate estate, but a form that divides legal and
equitable interests
3. To A for the use of B (for when women couldn't own
property) – savings clause so long as it vests within 21 years of a
life in being alive at the time when the trust was created
2. Not violated through reversionary interests, absolutely vested, or vested
subject to defeasance
3. Common Law Rule
i. Unless it must VEST or FAIL with 21 YEARS AFTER A LIFE IN
BEING, it is ILLEGAL
1. So, if at the time interest is created there is a possibility it
could remain contingent for over 21 years, then illegal
2. Vest means
i. It becomes possessory OR
ii. Not subject to a condition and it must become
possessory at the end of a set period of time
3. Interest is created by a will when testator dies and created
in a deed when the deed is delivered (unless deed is revocable –
then interest is created when it is irrevocable)
ii. If you can find ANYONE who is alive at the time of the
conveyance at whose death you will know the result, you are ok
1. Rule: Life in being + 21 years
2. Validating life: the life who validates the conveyances (can
be unborn)
iii. Figuring it out
1. Find the questionable conveyances
2. For personal contingencies, identify all relevant people and
kill them off
i. Then see if it will vest in 21 years
3. For non-personal, determine whether the resolution of the
contingency is valid in 21 years
iv. If invalid, strike that section of the will (but prior conveyances are
still valid)
4. Policy
i. Without, gives more control to the unborn and people are not
interested in investing if land is tied up
5. Modern Approaches
i. Cy pres: Reinterpreting a conveyance to avoid invalidity (by judge
deciding meaning)
ii. Wait and See – if don't know at the time it is created if it will vest
or fail (wait the 21 years and life)
iii. Uniform Statutory Rule Against Perpetuities (USRAP)
1. If it is valid under the common law than it is still good
2. If it's not valid under the common law, then the wait and
see is 90 years
 3. Even if it's not valid under 1 or 2, then the judge can revise
it – not likely to need this
iv. Abolishing the Rule (MINORITY, Utah)
3. Life Estates and the Doctrine of Waste (vested life estates and split for contingent
estates – depends on nature of contingency)
1. Life tenant
i. Entitled to rents, interests, and dividends
ii. Responsible for ordinary maintenance expenditures
iii. Not responsible for major improvements
iv. If outside circumstances make property valueless in present
condition, then may be allowed to change property (Melms, surroundings
went industrial so allowed to grade house) but mere increase in value not
enough
2. Remainderman
i. Entitled to proceeds from sale of property
3. Two Types of Waste
i. Permissive (neglect) (Zauner, leased premises, not surrender, but
did fail in repair)
1. Tenant fails to preserve and protect the property by
exercising the ordinary care of a prudent person
2. Payment of taxes and interests on the mortgage (not
required to spend more than property receives)
ii. Commissive
1. When a tenant damages a property in a way that the value
is permanently reduces
4. Remedy (not double relief)
i. Legal relief: damages (more likely if sure to become possessory)
1. Policy: varies on probability land will become possessory
2. Co-tenant can bring action for waste during life of co-
tenancy
ii. Equitable relief: injunction – make them fix (more likely if
contingent)
1. Good idea: If promise to repair, pay into an escrow account
iii. Forfeiture of the estate (more extreme)
1. Must have done something extreme like stop paying taxes,
willful abandonment, or willfully give up the property (McIntyre,
lost because stopped paying taxes)
2. Leasing premises probably not surrender
 
Concurrent Estates
Concu Require Surviv Transf
rrent ments orship erable
Estate
s
Tenan Default No Yes
 cy in
Com
mon
Joint 4 Yes Yes(bu
Tenan unities t turns
cy with into a
rights Tenanc
of y in
survivo Comm
rship on)
Tenan Marriag Yes No
cy by e + 4
the unities
Entire
ty
 
 
1. Concurrent estate – when two or more people own interest in the same property at
the same time
1. General
i. Equal right to possession and enjoyment of the whole property,
regardless of % share (cannot exclude)
ii. No reimbursements for improvements (except in partition)
iii. Profits split
iv. No rental costs for each other
2. Intent
i. Who drafts the will a factor – if joint by an attorney, taken as joint,
by lawman, maybe not
ii. "Jointly and not as tenants in common" (Kurpiel) – sufficient for
joint tenancy
iii. "For their joint use and benefit" (Weems) – tenancy in common,
jointly not enough for JTs
3. Types of tenancies
i. Tenancy in common
1. "to Alyssa and Ben", "to A & B", B devises to "C&D" (A
1/2, C 1/4, D 1/4)
2. Default if ambiguity (unless marriage) - favored by the law
3. Each owns individual part and each has right to possess the
whole
i. Undivided interest – neither tenant can exclude the
other from any portion (would be ouster)
4. No requirement that interest be equal, but default is equal
i. If unequal interest, different % for earnings (rents)
5. No right of survivorship – Shares pass to heirs
 6. Freely transferable
7. Minority: Special exceptions (not married but close) may
have right of survivorship
ii. Joint Tenancy
1. "to Alyssa and Ben, joint tenants, not tenants in common"
adding not tenants in common gives weight to joint tenancy
(Kurpiel, "jointly, and not as tenants in common")
2. "to A & B as joint tenants", B devises her interest "to C &
D" – doesn't work, all goes to A because right of survivorship and
must pass during life
3. "A, B & C joint tenants", C to D, makes A & B joint
tenants and D tenant in common
4. "For their joint use and benefit" is not enough to determine
a joint tenancy (Weems)
5. Right of survivorship
i. Upon death, shares pass to living tenant as fee
simple absolute
ii. Can sell rights for life of A, but A cannot pass rights
after life
6. Four unities – must be present to form a joint tenancy –
failure of any one creates a tenancy in common (TTIP)
i. Unity of time – must take interest at same time
ii. Unity of title – must take interest from same source
iii. Unity of interest – have equal and identical interest
iv. Unity of possession – have possessory interest in
the whole
7. Equal and undivided interest – creditors may reach
8. Termination and Severance
i. May be terminated by mutual agreement
ii. May be terminated by conduct indicating all parties
view interest as in common
i. Bad to assume party wanted to give up joint
tenancy
ii. Look to intent (lease, probably no intent to
give up JT)
iii. May be terminated by destruction of one of the
unities (ex. outright conveyance)
i. Some states allow tenant to deed/sell to
themselves, breaking the joint tenancy
1. Policy: if can sever through straw
person, why not to self (Minonk)
ii. Some: pledge severs unity of title (mortgage
and pledge only diff. in type of prop.)
1. Policy: lien is right to possess and
retain property until charge paid
(Hutchinson, grandson filed bankruptcy)
 iii. Some (trend towards): mortgage does not
sever unity of title (Harms)
1. Policy: mortgage is a lien rather than
a deed, thus unity of title not severed
iv. Can be converted to a tenancy in common
by the act of just one tenant
1. Permission or awareness of other
joint tenant not required
2. If multiple joint tenants, and one
severs, rest still have joint tenancy (the one
has a tenancy in common)
iv. Other approaches
i. Conditional Severance
1. Joint tenancy severed during term of
lease, but revived upon termination of lease
if both joint tenants still living
ii. Temporary or Partial Severance
1. Joint tenancy survives during lease,
but surviving joint tenant's interest subject to
lease
v. Survive death?
i. Some (trend towards): a
lien/mortgage/interest dies with the joint tenant
ii. Policy: problem, does not protect the
mortgagee's interest
vi. Cannot convert in will, must be during life
iii. Tenancy by Entirety
1. Right of survivorship
2. Four unities + marriage (see above)
3. Equal interest
4. Termination: only by divorce, death of one spouse, or
voluntary partitioning
i. Insulated against conveyances – not broken by
unilateral act of spouse
5. Creditors may not reach the interest of the debtor spouse
i. Some: May reach after death
ii. Policy: Protects non debtor spouse
6. Weird rule: Husband and wife are one unit if reference to
that status (Margarite, "his wife" "2 ands") & (Adamson, "husband
and wife" "2 ands")
i. If three, single gets 1/2 and couple gets 1/2
ii. Language indication
i. Use of "husband and wife" and use of
double ands
 iii. Exception: if not referred to as husband and wife (if
3, 3 1/3s) (Kurpiel, "jointly, and not as tenants in common" –
no reference to marriage)
iv. Some: Default if ambiguity is tenancy by entirety
for marriage
iv. Community Property
1. 10 states
2. Only between husband and wife
3. At least half the community property goes to surviving
spouse
4. Partitioning concurrent estate (tenancy in common and joint tenancy)
i. Voluntary partitioning – if all co-tenants agree
1. Division in kind: physical division – creates possessory
interest
2. Division by sale: co-tenants take chares of the proceeds
ii. Partition by judicial proceeding
1. Joint tenant or tenant in common has right to demand
partition
2. Tenants by the entirety and holders of community property
no right
3. Division in kind: physical division – creates possessory
interest
4. Division by sale: co-tenants take chares of the proceeds
2. Concurrent Estates: Administration
1. Ouster: When one co-tenant claims exclusive possession
i. Exclusive possession can be through excluding the other from
exercising rights to the property (Gillmor, can't graze sheep on Utah
land)
2. Not Ouster
i. The possession of a tenant in common is presumed to be the
possession of all tenants until the one in possession communicates to the
other the knowledge that he/she claims exclusive right or title
ii. Even if one tenant exclusively uses the property, not ouster unless
the other is prevented from use
iii. Some: May offset 1/2 fair rental value if cotenant exclusively uses
iv. Majority: Not liable for own rent (value of possession), but liable
to cotenants if receives rent from 3rd party
3. Liability: Liable to pay for 1/2 the rent to ousted co tenant since ouster
i. If A is in exclusive possession
1. A
i. Not liable to pay rent (majority)
ii. Can charge B 1/2 taxes, interests, carrying charges,
mortgage payments
i. But B may offset rent (majority/some,
Barrow, because divorce)
 iii. Can only charge for maintenance expenses if
negotiate with B first
iv. So, if value of A's use is greater than expenses to B,
B owes nothing (usually the case)
2. B
i. Some: can offset A's fair rental value from what A
charges B (1/2 total)
ii. If A is ouster
1. A
i. can offset rent owed to B by 1/2 taxes, interests,
carrying charges, mortgage payments, & maintenance
expenses
2. B
i. can charge A's fair rental value from what A
charges B (1/2 total)
4. Three different types of expenses
i. Compensatory: If A charges B because A paid these things, but A
was in exclusive physical possession, then B can offset these charges by
the market value of A's rent
1. Taxes, interests, and carrying charges (mortgage) (can
charge based on share)
2. Maintenance expenses (can only offset, never charge)
ii. Not compensatory: but would be considered in a partition action
1. Improvements ("improver" gets full increase or decrease)
5. Remedy: If ousted
i. Marketplace value of the occupancy of the property
ii. Ejectment demanding right to joint possession
1. If don't seek remedy after ouster, then may lose to adverse
possession (if not ouster, cannot adverse)
3. Marital Property
1. Old Common Law
i. Dower: Widow entitled to life estate in 1/3 real estate - problem if
marriage $ not in real estate
1. Applies to all husband's property during marriage, even if
conveyed away – thus, if married, need to buy wife's interest (not
common but important)
ii. Curtesy: Widower gets life estate in all wife's land provided a child
is born alive
iii. Today: Common law not used by any state and gender based
discrimination unconstitutional against females
2. Community Property Jurisdictions
i. Property owned 50-50 regardless of who formally earns it
1. Shared from the moment it is earned (effects management
during marriage)
2. Unless owned before marriage or after marriage through
gift, devise, bequest, or descent
 i. Remain separate if you keep it separate – difficult
burden of proof
ii. Policy against: spouse no ownership, ALI proposes
gradually from separate to community
ii. Upon death, surviving spouse entitled to at least half
iii. Upon divorce, spouses have equal rights in community property
(some equitably, some equally)
iv. Policy for: Both parties contribute equally, although not
necessarily identically
3. Common Law Property Jurisdictions (Statutory)
i. Management of Property Acquired during Marriage
1. Each spouse over their own earnings during marriage
ii. Death of one Spouse
1. Can choose elective share or the will
i. Minimum entitled to usually 1/3-1/2 ("forced")
2. Look to many factors – trusts/interests made close to death
iii. Disposition of Property on Divorce (on equity and fairness)
1. Factors
i. Contribution of each spouse
ii. Needs of each spouse (Minority)
iii. Duration of the marriage
iv. Present and prospective earnings of each spouse
v. Age (Simmons, woman significantly older and
fewer years to earn)
2. Modern trend to consider the nonmonetary contributions of
nonworking spouse (ALI view)
3. Some: Probate – if married 15 years or longer, 50% - fewer
years = entitled to less
4. Community v. Common Law
i. In common law state, if poor spouse dies first, not leave anything
to heirs, but in community, entitled to half
ii. For both, group all assets into marital estate and then divide
iii. No TBE in community property states
iv. JT and TC only by consent of both parties – then converts it from
marital property
1. Upon death, get share of JT/TC and then rest according to
marital property laws
5. Marital Property v. Spousal Maintenance (Alimony)
i. Majority: Emphasis on property division (can be $ for value of
degree, $ for contribution towards degree)
1. Policy: Clean break, permanent, fixed
ii. Minority: Alimony (need based or other factors)
1. Policy: Good when couples have no real or personal
property
6. Degree, Marital Property?
 i. Majority (policy): A degree or license is not marital property
(Simmons)
1. Disposition should not be based on potential earnings -
could injure/die (definition of property is based on present, not
potential existence)
2. Intellectual achievement: terminates on death, not
inheritable, not assigned, sold, or transferred
3. Marriage not business arrangement or economic
partnership
4. Shouldn't force career path and earnings
5. Option of alimony ("wait and see" - could be nominal thus
reflects true value of degree)
ii. Vast Minority (policy, law review supports): A degree or license is
marital property (O'Brien, supported medical license)
1. License is valuable, other spouse should be compensated if
supported spouse in attaining
2. Accounting as marital property allows for clean break vs.
alimony (which may penalize remarriage)
 
Servitudes and Rights of Neighbors
Non Possessory Interests
 
1. Servitudes
1. Generally: Non-possessory interests – land owned by one party "serves"
another party
2. Easements, real covenants, equitable servitudes, profits, and licenses
2. Express Easements: Classification and Creation
1. Generally
i. In writing
ii. Limited to use or enjoyment of interest in land
iii. Protection against 3rd persons and will of LL
iv. Like a license to use the land, but irrevocable by LL
v. Dominate estate is benefited and servient grants the benefit
2. Affirmative v. Negative
i. Affirmative: Grants rights would not otherwise have
ii. Negative: Prevents possessor from doing something would
otherwise be allowed (restrictive covenant)
3. Appurtenant (land) or In Gross (person)
i. Appurtenant: Rights automatically pass with land (easement and
land cannot be split)
1. Presumption of appurtenant for 3 reasons
i. More easements intended to be appurtenant
ii. Since it passes automatically, protects grantee from
failure to create a separate grant with fee
iii. Any detriment to servient estate usually offset by
benefit to dominate estate
 ii. In Gross
1. Benefit not attached to particular parcel of land
4. Grant, Reservation, Exception
i. Grant is creation of a new easement
1. Traditional rule (only 3 states have eliminated): cannot
create right for 3rd party
i. Could give easement then sell
ii. Policy against: Does not allow grantors intention
ii. Reservation retains for the grantor a newly created property right
iii. Exception retains for grantor a pre-existing interest
3. Is it an easement or fee, and if so, what is the scope of the easement (express
or through adverse use (prescriptive easement))
1. Factors to determine rights and obligations of easement (PI-LEAST)
i. Scope: Prior use of the land
1. May suggest continuation of that use was intended
ii. Intentions
1. In favor of the grantee – fee simple assumed unless it
appears from grant a lesser estate was intended
2. If intent cannot be shown otherwise, holder of easement
entitles to use servient estate in manner reasonably necessary for
convenient enjoyment
3. Granted v. Reserved
i. Reserved is interpreted more restrictively than grant
iii. Language of document
1. Easement/Fee: Terms in support of easement (from original
deed): "right of way" (Greaves, "right of way") (Northwest Realty,
"right of way", "over", "across") (Hurst, land conveyed in fee, road
"also")
i. Terms for fee: "granted, bargained, sold, conveyed"
ii. "for x purpose only" is conditional estate, fee
subject to condition subsequent, not easement
2. Scope: If language has space defined: width, length, and
location, then clear (Northwest Realty, "not exceeding 40 feet" –
easement language) (Greaves, road moved x times – easement)
3. If ambiguous, look to intentions and reasonable
expectations
i. If not specific measurements and right of way
"over" land, generally only what is reasonably necessary for
purpose of easement
iv. Reasonable Expectations
1. What best serves the interests of the parties –
discouragement from splitting land
2. Use/limitation in land & purpose of the interest – road
usually easement (Hurst, road had no limitation of use)
v. Amount of Consideration
1. More money probably greater rights intended
 vi. Subsequent conduct of the parties
1. What happened immediately after implies parties intent
vii. Easement/Fee: To whom property assessed and who pays Taxes
2. Rights and Obligations
i. Servient Rights & Obligations
1. Majority: If servient estate wants to relocate (road), need
dominate consent & servient pays change
2. Servient owns property, so can use it to extent does not
interfere with easement
3. Servient may be obligated to provide "private way of
necessity", or allow right of way if benefit to dominate and no
damage to servient (Brown, access to C no additional burden but
provided benefit)
ii. Dominate Rights & Obligations
1. Dominate estate cannot grant others easement and cannot
use easement for other parcels (Brown, cannot use easement for
additional lot), but servient can grant if not interfering with 1st
easement
2. Duty to repair and not impose unreasonable additional
burdens on servient estate (clean up)
3. Normal increase in degree of burden in use of easement
okay, but no appreciable additional burden on servient estate
(Hayes, increase in boat slips okay)
i. Burden on proving additional burden on servient
estate
ii. Minority/trend: Allow new uses of easement if not
appreciably increase burden (telephone easement allows
cable)
iii. Unilaterally Relocate Easement?
1. Majority: Neither dominate nor servient estate may
unilaterally relocate an easement once fixed
2. Minority & Restatement: Servient can relocate if dominate
estate benefits substantially similar – may want a declaratory
judgment before change (MPM, could change easement according
to Restatement)
i. May relocate if (M.P.M., relocate road)
i. Not lessen utility of easement
ii. Not increase burden on dominate use
iii. Not frustrate purpose for whish easement
was created
iv. Servient shall pay for cost of relocating
ii. Policy
i. For: Merely a right of way, created to serve
a particular objective, nonpossessory right,
encourages use of easements, permits servient to
 develop land without unreasonably interfering with
easement rights
ii. Against: Favors economic interest of only
servient party
iv. Ingress & Egress
1. The right to enter and leave
3. Termination of Easements (ALMA EEO-FER)
i. Adverse possession (of owner or other)
ii. Loss of purpose of easement (canal with no water)
iii. Merger of dominate and servient estate
iv. Abandonment (need clear abandonment)
v. Express terms
vi. Estoppel
1. If A says won't use easement, and B relies on that, may lose
easement
vii. Other Ways to lose property
1. Foreclosure
2. Eminent Domain
3. Recording Acts
4. Non-express Easements (4 non express - implied, by necessity, adverse
possession, Estoppel exception, + express)
1. Generally
i. Purpose: Give effect to the intentions of the parties
1. Not implied in face of evidence proving no such intent
2. Cannot look to writing to determine intent
ii. Go back to when land was owned by one owner and look to
original needs and actions
iii. New use permitted if from reasonable development that does not
unduly burden servient estate
2. Factors considered for determining if an easement is implied (PASTA
– BEN)
i. Prior use
ii. To what extent was the easement was apparent to parties
iii. Subsequent conduct of the parties
iv. What are the terms of the conveyance
v. Amount paid
vi. Does the easement create benefits for the conveyor and/or
conveyee?
1. Requirements for implied easement must be met at time of
conveyance
vii. What results best meet expectations of parties and arrive at fair
results?
viii. How necessary is the easement for the claimed dominate estate?
SPILT
1. Strict necessity (Ward, driveway could be through alley)
 2. Necessity element in balancing test (Hillside, Restatement
view)
3. No necessity (Epstein)
ix. What allows full utilization of the land
x. Public policy: avoidance of economic waste
3. 4 types of non-express easements
i. Easement by prior use/quasi-implied easement/visible easement
(low standard)
1. Original unity of ownership
2. Was the easement apparent
3. Was the use continuous (at the time of severance and still)
4. Is the easement necessary for the enjoyment of the claimed
dominate estate
5. Did the parties address easements in the agreement? If did,
but did not grant easement, not implied
6. Minority: Was the right of use intended to be permanent?
(Epstein, sign not permanent)
ii. Easements by necessity (high standard)
1. Requirements for an easement by necessity
i. Original unity of ownership of claimed dominate
and servient estate
ii. Existence of necessity at the time of severance
(implied generally not strict necessity)
2. Policy: for easement by necessity unless affirmative
evidence against
iii. Easement by Prescription/Adverse Use
1. Continuous: as the owner would use it
2. Statute of limitations begin using the land in such a way
that the owner would have a cause of action
iv. Easement by Estoppel/Irrevocable License
1. If owner A gives permission for B to use land in certain
way, if B relies on that permission (usually spends money to build
road etc.), owner A cannot revoke permission
2. Becomes an irrevocable license – like an easement except
i. It only lasts as long as necessary to recoup the value
of the investment
ii. SOME: not transferable
iii. Scope is narrowly construed
5. Promissory Servitudes: Enforceability of Covenants
1. Names (kind of same thing): Covenants that run with the land, equitable
servitudes, negative easements, Covenants, Conditions and Restrictions (CC&Rs)
2. Most Important: Make sure covenant is recorded in a way that gives notice
to all future owners
3. Real Covenants v. Equitable Servitudes
Restatement and others eliminate this distinction
1. Real Covenants (covenants running with the land)
 1. Generally affirmative (promise to do something)
2. Remedy: Damages
2. Equitable Servitudes
1. Negative covenant (promise to not do something)
i. Court will only enforce if party had notice
2. Remedy: Injunction
4. Requirements to create a covenant (trend away from technical requirements)
1. Agreement to be bound
2. Intention that promise run with the land
3. Promise must touch and concern the land
4. Must not violate public policy
5. SOME: Traditional legal requirement that promisor and promissee have
some form of privity of estate
i. Idea: two neighbors cannot just enter into covenant
6. SOME: Doctrine of Implied Covenants: if part of same community, and
marketed same way, maybe implied
5. Is a covenant enforceable?
1. Generally
i. Only the owners of the beneficial interest can enforce covenants
ii. Can be in gross or appurtenant (most)
iii. Subject to constitutional rules (can do certain things govt. cannot,
but still subject)
iv. Can enforce against anyone who acquires burdened estate and has
notice (not actual, but proper)
v. Horizontal Privity (MINORITY – archaic, may not last)
1. Relationship between promisor and promissee
2. LL tenant, party who owns easement, and when covenant is
created at conveyance
2. Standards of enforceability: vary according to the covenant
i. Generally: There is a strong presumption against alienation (not
being able to sell/rent), so default to free enjoyment for that and less
for "cats"/lesser owner rights
ii. Rent/Sell: Enforceable if (Franklin, one may only own two or
fewer apartments)
1. If the one imposing has some interest in the land
2. If restraint is limited in duration (counts if assoc. can vote
and change covenant)
3. If for a worthwhile purpose
4. Number affects is relatively small
5. If unclear, in favor of free enjoyment – interpret reasonably
(Hill, AIDS okay as family)
iii. Lesser owner rights: Courts enforce covenants unless
unreasonable (burden on party challenging covenant) (Nahrstedt,
cannot have cats)
1. Unreasonable if
i. Burdens substantially outweigh the benefits
 ii. Violated public policy
iii. Wholly arbitrary
2. Policy:
i. Provides assurance and confidence to prospective
buyers
ii. Protects owners from feels due to legal challenges
3. Reasonable standard for individual or group? (Nahrstedt)
i. Cannot look to reasonableness for individual
ii. Would conflict with presumption that covenant is reasonable
iii. Policy: discourages lawsuits by individuals seeking personal
exemptions
6. Defenses to the Enforcement of Covenants
1. Based on contract (not property) law
i. May waive enforcement, be estopped from enforcing it, or be
barred by doctrine of laches (undue delay in enforcing one's rights)
2. For enforcement
i. Courts default to upholding covenants unless a strong reason
against
ii. Exception: presumption of invalidity for alienation (limitation on
selling/renting) unless very low restriction (Franklin, reasonable
limitation to only owning 2 apartments)
iii. Policy: Takes away responsibility from government, gives stability
to the community, people have notice and have promised to comply
3. Defenses
i. Was there sufficient evidence to establish a uniform development
plan?
1. If part of general scheme, runs with the land ("heirs",
"mediately")
ii. Have the circumstances changed so dramatically that the purpose
no longer exists? – only applies to the dominate estate, not the servient
(Chevy Chase, wanted Dr.'s office despite covenant – not dramatic
change)
iii. May lose right to enforce due to laches/adverse possession
iv. Should court decline to enforce due to comparative hardship?
1. May refuse enforcement if hardship disproportionate to
benefit (very great v. very minor)
2. If land rendered wholly useless, disproportionate (Philwold
Estates, only hydroelectric plant)
i. Policy: Would have liability for land but no benefit
3. If court declines covenant, may be entitled to damages
v. Was there a good faith mistake? Would have to not create much
harm (ex. mis measuring a porch)
7. Common Interest Communities
1. Generally
i. Covenants are legal devices used to create common-interest
communities
 ii. Recorded by developer a.k.a. declarant in a document called the
declaration of covenants, conditions & restrictions (CC&R)
iii. Commonly mandate membership with dues
iv. Terminated or disassociated by super-majority vote
v. Policy: CIC good because takes burden from government
2. Factors for determining standing of association (Westmoreland Assoc)
i. Capacity of organization to assume an adversarial position
ii. If size and composition reflect a position fairly representative of
the community interest
iii. Adverse effect of the decision sought
iv. If full participating membership is available to all
3. Association rights/requirements for enforcement (if good standing of
assoc)
i. Procedural requirements for enforcement
1. Provide constructive or actual notice of covenant
2. Reasonable demand for compliance after breach occurred
(policy: courts don't want case if owner willing to comply but didn't
know)
3. Due process considerations
4. If value of covenant not affected, need not enforce
uniformly (Raintree, not enforce against all trucks)
i. If affected substantially, waive right to enforce
5. Policy: make use of dues (ex. parks)
ii. Rights (if notice)
1. Create/modify covenants
i. Split: mostly based on extent of new covenant –
bigger change = less chance of validity
2. Impose dues – not excessive though
3. Require all owners to be members
4. Court's standards of review for board action – courts vary or mix
i. Business judgment rule of corporation law: Not second-guess
unless showing of bad faith
ii. Reasonableness standard
iii. If ambiguity, rights towards free use of property (Evergreen)
8. Nuisance
1. Generally
i. Public Nuisance: offense against public and generally only public
official can sue
ii. Private Nuisance: bring action for self if "different in kind" from
public nuisance
iii. Zoning v. Nuisance: could use zoning code to prove nuisance –
zoning more predictive and proactive
2. Factors
i. Spite: courts less likely to support actions done out of spite
ii. Surrounding circumstances: if most neighbors agricultural, less
likely to find that a nuisance
 iii. Who was there first: coming to nuisance problem
1. If a person buys and nuisance is present, is thought to have
received compensation through lower cost
iv. Public Policy: who to support - social value judgment
1. What sort of land use do you want to promote
2. Maximum use used to be viewed as better but trend
towards preservation
i. Ex: sunlight (Prah, solar panels)
3. Traditional (SPLIT): First restatement
i. Interference must constitute nuisance for legal remedy
ii. If nuisance, entitled to an injunction
iii. Could win big or lose big (all or nothing) because courts are
hesitant to let residents win over big companies because that would equal
an injunction which would be a big loss to society
4. New Trend (SPLIT): Second restatement
i. Two steps (Rabin excerpts)
1. Who is morally blameworthy?
i. The person at fault pays (Spur Industries, cattle
violate public health, developer pays)
2. How can this be resolved with the least expense?
i. Resolved by least-cost-avoider, but not necessarily
at his expense
ii. Separate fault from efficiency (Spur and Boomer
landmark cases for this)
ii. Remedies
1. Generally
i. Value of cause of nuisance must be greater than
damages to justify continuing
ii. Must compensate if harm greater than other should
bear without compensation
iii. If can change for less cost than damages, do that
2. Grant injunction but postpone effect until future date to
give chance to fix
3. Injunction cancelable upon payment of damages for past
and future injuries – permanent damages for total economic loss
(Boomer, cement plant - "balancing of conveniences")
iii. Policy: Damages can be more fair and more efficient than an
injunction
1. Courts are more likely to find for π than with 1st
restatement because remedy is less extreme
iv. If there first, but becomes nuisance through other's actions (no
fault)
1. May enjoin operations if remedy is beyond damages BUT
may not be at fault (Spur)
 
Government Use of Land
 
9. Eminent Domain
1. 5th Amendment: “nor shall private property be taken for public use
without just compensation”
i. Taking
ii. For public use
iii. Just compensation
1. Fair market value
i. Problem: “to me it’s worth a million dollars”
2. Policy: Fee thinks should up this to make govt. think more
before taking
10. Public Use
1. Question: Flat out taking, but is it for public use?
2. Reasons taking may meet public use requirement (Wayne, 3 questions)
i. Is taking vital to commerce (highways, railroads, canals, etc.)?
ii. If transferred to private entity, is taking devoted to use of the
public (independent of will of private entity)?
1. Support: if private beneficiaries are unknown at time plans
are formulated (fee thinks unreasonable)
iii. Is condemned land chosen due to a public concern?
1. Does act of taking serve public good (Poletown, public
health, safety, welfare –GM Cadillac plant)
3. Transfer to Private Entities?
i. If attack perceived evils of concentrated property ownership, for
legitimate public purpose (Midkiff)
ii. If transfer to private entities must be devoted to use of the public
(Wayne, Michigan, not to take for business park because private entity
not open to public use – overrules Poletown by interpreting the state
constitution)
iii. Must be selected due to public interest, not interests of private
entity
4. Policy For Taking (trend and majority)
i. Decline to second guess what the legislature deems best for public
1. Acceptable: Redistribution of fees simple to correct
extreme deficiencies in the market determined by the state
legislature (Midkiff v. Hawaii Housing Authority, people couldn't
buy land they lived on)
2. Legislature, state or federal, must determine substantial
reasons for exercise of the taking of power
ii. Necessity because likelihood people will hold out and prevent
what is necessary for public and commerce
iii. Court rejected literal requirement that condemned property be put
into use for general public (Kelo, Strickley)
iv. Carefully thought out economic plan that should benefit the
community (Kelo, Fee for Kelo)
5. Policy Against Taking (Kelo, O'Connor dissent)
 i. Argument: Midkiff was about preventing harm – should be the
requirement – not who most $ benefit
ii. Tend to benefit the wealthy and displace the poor
iii. Must have meaningful limit on power of eminent domain
1. If can transfer for private use, is there is a limit
iv. Thomas dissent: only allow eminent domain if govt. owns domain
or private that is required to serve the public
11. Regulatory Takings
1. Question: Is it a taking?
2. Generally
i. When are government imposed restrictions enough that it
constitutes a taking?
ii. Different than nuisance – nuisance is minimal restrictions
iii. Zoning laws are a legislative exercise of police power for public
welfare
iv. Regulations Test
1. Sensible?
i. If practical use/advances public welfare, then
sensible
ii. If doesn't advance public welfare and injures the
landowner, not sensible
2. Will always affect landowners – what extent allowed?
3. 2 Bright Line Rules
i. Permanent Physical Occupation by 3rd party/government is a
taking (Loretto, small cable box)
1. Compensation must be given
2. The right to exclude is greater than the right to use (so
small cable box still a taking)
3. Taking per se
4. Exception/not a taking
i. If temporary, may not be taking (Tahoe Sierra)
ii. Not physical taking if not for third party
i. Fire extinguishers, fire sprinklers, and other
required physical objects
iii. YEE v. Escondido, trailer park rent control
i. LL can chose to change the use of the
building if they don't want to comply
ii. Although limited ability to select tenants, up
rent, and tenants can renew indefinitely, tenants
voluntarily invited (box not), can up rent with
permission
ii. When all viable economic use is eliminated (Lucas v. SC
Coastal)
1. Is a taking
2. What is all economic use?
i. If any use is left, it is enough
 ii. Exception: if land use restrictions merely reiterates
common law/background principals of state law (ie. nuisance
common law)
i. Example: law allowing access to beach
merely statute for common law
4. Balancing Test (Penn Central, RR station wants to build a skyscraper)
(CRIES)
i. Character of government's action
1. Govt. has right to police health, safety, welfare & morals
(Penn Coal)
ii. Reciprocity of advantage
1. Sometimes means general laws are valid because they are
helping out everyone (Penn Central)
2. Sometimes means when a regulation applies to more than
one owner and benefits all owners, it is justifiable (Justice Holmes)
3. Reciprocal advantages should match or at least equal the
loss
iii. Interference with reasonable investment backed exceptions
iv. Economic effect on the owner
1. Diminution in value or use
2. Reasonable self interested seller, not subjective
3. Over 95% the owner sometimes wins
4. Is it capable of earning a reasonable return? (Penn Central
Transportation)
v. State interest
1. Is it reasonably necessary to affect a public
purpose/interest?
5. Transfer of Title (Palazzolo)
i. Plurality, but main holding does not consider awareness of
regulatory taking
ii. Not an automatic bar, but still a consideration because awareness
of regulations "helps to shape a reasonableness of those expectations"
(Palazzolo O'Connor plurality concur)
6. Owners will be unequally burdened – okay
i. Government hardly could go on if to some extent values incident
to property could not be diminished without paying for every such
change in the general law (Penn Coal)
1. Holmes rejects both extremes of govt/private
ii. If not singled out, and others benefit, less likely a taking
7. Parcel is a whole, not okay to claim 100% loss of part of land (Penn
Central)
i. Look to timing of purchase to see if same parcel
ii. Temporary takings
1. Cannot divide in time (Tahoe Sierra)
2. If owner has multi lots, may be combined as single parcel –
large owners easier for govt. to regulate
 3. Policy: Where to draw the line – what if taken for a day –
but rule is more than 1 year is suspect
8. Transferable Development Rights
i. Diminishes the harm – A had govt. imposed height restrictions, B
lives in target zone, and A sells development rights to B
1. Policy: gives only part compensation, but that makes it not
a taking (good for government because they do not have to pay
100%)
9. Estoppel Doctrine
i. City gives an approval and owner invests money, city may not be
able to change (permit would be evidence)
10. Damages
i. §1983 allows for recovery of attorney's fees
ii. First English allows for recovery if delay is found to be a taking,
but does not show something is a taking – Tahoe Sierra distinguished
12. Exaction Takings
1. Nolan - Dolan Test (Dolan, exchange free space and bike path for building
expansion)
i. When does it apply?
1. Government permits a certain use of property on condition
that the owner gives up other interest
ii. Would it be a taking?
1. Government must have a legitimate interest in restricting
owner's use of property
2. Nolan - Dolan Test
i. Reasonable relationship between government
interest AND property interest
i. Nexus between government interest and
property interest
ii. Proportionality (Dolan added second prong to
Nolan test)
i. The giving and getting is roughly
proportionate
ii. Is the impact of what owner wants to do
proportionate to what city asks for
1. Ex: for each additional sq. foot
proportionate to new need for housing
3. Left unanswered (split): can govt. exact money – only 2
cases in Supreme Court & those ask for land
4. CA: if generally applicable law, then not subject to Nolan –
Dolan cause more like a tax
13. The Public Trust Doctrine
1. Two steps
i. Is this subject to public trust?
ii. If so, what other public interests must be balanced?
2. What is certainly subject to public trust?
 i. Tidelands at high-tide mark (subject to ebb and flow of the tide)
ii. Non-tidal lands under navigable freshwater lakes
3. What public uses may be subject to public trust?
i. Places that the public has come to use and value over time – come
to expect as theirs
ii. Fish, hunt, bathe, swim, use bottom of water for anchoring, and
possibly, to preserve natural state of land
iii. (National Audubon Society, diversion of non-navigable streams
subject to extent harm navigable waters)
iv. Beaches because must use those to access the beach waters – like
background state law, so not compensate because never had right
(Matthews, N.J. must allow access to dry sand)
4. Duty
i. To act in best interest of the public
ii. May need to balance other needs of the public
1. As far as feasible, must minimize harm to public trust
2. (National A.S., Public need to divert water to LA must be
balanced with public trust consideration)
5. Private Conveyances/Sales
i. If granted right, that right is subject to what is best for the public
ii. May make revocable conveyance to private if for use of the public
1. If revoke, must compensate for improvements
iii. State cannot convey all interest to private party and avoid
responsibility of trust
6. Policy
i. Probably not a taking if under the public trust doctrine
ii. Eminent domain vs. public trust: there is a problem – some justices
think public trust must be limited so not transforming private property
into public property without just compensation
iii. Judges, not legislature, is deciding what's best – anti-democratic
iv. Effect on private property – property purchased may be valueless
and no compensation under PT
 
Real Property Transfers
1. Adverse Possession (ACE-HO)
1. Elements
i. Actual possession
1. Physical presence on property
2. Absent color of title, must occupy entire space
i. Color of title: an invalid document purporting to
give title
ii. Only applies to extend boundary, must still meet
other AP elements
3. CA: actual possession of one lot does not give right to other
lots
ii. Continuity for Statutory Period
 1. All other 4 must exist the whole time
2. Tacking
i. Successive adverse possessors must generally be in
privity (agreement between successors)
ii. Need some evidence that owner had intent to
convey to you
3. Tolling
i. Statute of limitations does not start if owner has
certain disabilities (military, under age)
4. From 5-60 years; Utah 7
5. No significant gap in possession
iii. Exclusivity
1. Possession must be type that would be expected of an
owner (not necessarily "exclusive")
2. Others must not also occupy or claim the land
iv. Hostility/Claim of right
1. You must behave like the owner
i. Acted in way that gives owner cause of action for
ejectment (generally not "hostile") (Tioga)
ii. Wrongful against proper owner but rightful against
rest of the world
2. Good faith v. bad faith
i. Objective (majority)
i. Does not matter if you believe land is yours
– subjective irrelevant (ITT Rayonier)
ii. Policy: messy to get into state of possessors
mind
ii. Good faith claim (minority)
i. Subjective: must believe land is yours
(Halpern)
iii. Bad faith claim (Maine – vast minority)
i. You must think the property is not yours
otherwise not "hostile"
3. No claim of right
i. Asking permission to be on the land
ii. Temporary occupancy
iii. Limited purpose of use
v. Openness and notoriety
1. So conspicuous that it is generally known to the public
i. Ex: fences, eject trespassers, pay taxes
2. Owner has knowledge or reason to have knowledge
(Marengo Cave, owner can't see, so not AP)
vi. Some: must pay taxes, others a positive factor for adverse
possession
2. Federal land and most state law not subject to AP
3. Policy
 i. For adverse possession
1. The property owner relies belief that land in theirs
i. Puts property in hands of who values it the most
2. Tends to clear up administrative problems: mistakes, lost
deeds, longer time = less accurate for sorting out property
ii. Against adverse possession (especially bad faith)
1. Encourages trespassers
2. Undercuts recording acts
4. Burden of Proof on π
5. Title of AP
i. Can be transferred like any other property
ii. Cannot be recorded because does not arise from a recordable
document but an action of law
6. Easements by adverse possession
i. Same requirements to gain an easement
ii. Simply not using easement does not trigger loss by adverse
possession, would need to be denied use (ouster)
2. The Requirement of a Written Instrument (Required by the Statute of Frauds)
1. Estate (lease, trust, any interest) in real property requires a written
instrument
i. Exception: Estate at will or term not exceeding one year
2. Informal documents for conveyance (deeds)
i. Requirements
1. Be in writing and be signed by grantor
2. Deed must be delivered (see 3 below)
3. Clear who the grantor and grantee are
4. Description of the property
i. Minority: don’t require clear description if can be
reasonable deduced
5. Statement of an intent to convey a present conveyance
i. Might be clear enough for grantor and grantee but
not to put purchaser on notice
ii. Mere invitation to stay on land not conveyance (In
re O’Neil’s Will)
ii. Not required/optional
1. Considerations (payment)
2. Lawyer
3. Notary (Majority)
4. Government involvement
3. Contracts for the sale of real estate
i. Written requirements
1. Description of the real estate – must make identification
possible
2. State price or method of fixing price
3. Reasonable certainty of an intent to convey
ii. Sufficient (for specific performance)
 1. In writing or
2. When one party’s reasonable detrimental reliance on the
contract would make it inequitable to not enforce it (// promissory
estoppel)
i. Must appear that failure to enforce would amount to
fraud
ii. Consider availability of other remedies
3. Buyer has accepted a deed from the seller
4. Party against whom enforcement is sought admits in court
that contract for conveyance was made
5. Majority: If the buyer has take possession and paid all or
part of the contract price
i. Minority of states do not recognize past
performance
iii. Insufficient (for specific performance)
1. Payment of purchase
i. Policy: can be repaid
2. Collateral change of position (not specifically on promise)
3. Statute of Frauds: If action not meant to be carried out
within an year
iv. Burden of Proof
1. Clear and convincing evidence (not mere preponderance)
v. Remedy: if cannot demand specific performance, then can award
damages
vi. Policy:
1. Encourage the writing and recording of conveyances (not
open up oral contract floodgates)
i. Consequences: Will hurt those who did really want
to enter into an agreement
ii. Since can write agreement, if don’t do that, then
shows indication not to sell
2. Protect against fraud (especially when someone has died)
3. Balance against counter fraud when someone has relied on
a oral contract
3. Deed Must be Delivered
1. Requirements
i. Must show present intent to impart irrevocable
1. Present intent to impart makes different than a will
i. “A is now the owner”
2. Must give outright (constructive or actual) ownership at
that time (gift is given inter vivos)
3. With death escrows, must still how intent to part
irrevocably
i. If irrevocable, deemed delivered on day it is
delivered to escrow
2. Sufficient (if irrevocable)
 i. Death escrow
ii. Delivering deed to third party
iii. Recording (if not fraudulent (Lenhart v. Desmond, daughter takes
from safety deposit box and records))
3. Possible supporting factors (show intent to impart irrevocably)
i. Putting in safety deposit box with exclusive access for joint tenants
ii. Showing deed/handing it over (should get on video)
4. Insufficient
i. If unrecorded and in the grantor’s possession
4. Deed Covenants
1. Types of Deeds
i. Full Warranty
1. Includes all 5 covenants listed below
2. Grantor liable to remote grantee for breach of future
covenants
ii. Special Warranty Deed
1. Includes some of the 5 covenants
2. Grantor usually covenants only concerning interests created
by grantor (not liable for past owners)
3. Grantor’s liability to remote grantees depends on the statute
iii. Quit-Claim Deed
1. No covenants – “as is”
2. No cause of action against the grantor
3. Grantor promises nothing
4. Grantor conveys everything it has (susceptible to surprise
of grantor’s true rights)
2. Present Covenants (at the time of conveyance) (SERF-Q)
i. Generally
1. Breached only if title is defective or encumbered at time of
conveyances
2. Majority: can only be brought by the original grantee to
whom the covenant was made
3. Does not run with the land for future grantees
4. Fee: present covenants are more similar to contract law and
future covenants are more similar to property law – fee thinks there
isn’t a good reason you shouldn’t be able to convey your cause of
action for the present covenants to future grantee’s – puts in worse
position (limited to SOL)
ii. Covenant of seisin
1. Grantor if peaceably in possession under a freehold title
i. If grantee has notice of another interest, not relevant
ii. If grantee has actual knowledge of another interest,
then no cause of action against grantor
i. Doctrine that grantee is estopped from
bringing claim
iii. Covenant against encumbrances
 1. No other rights or interest in the property has been
conveyed
2. Feed from servitudes, liens, dowers, etc.
3. If aware/actual knowledge of encumbrances, may be
estopped from suit (Babb, actual knowledge)
iv. Covenant of the right to convey
1. Grantor has the power and authority to make the
conveyance
3. Future Covenants
i. Generally
1. Breached when 3rd party successfully asserts a higher title
against the beneficiary of the covenant
2. Runs with the land
i. Benefits immediate and future grantees
ii. Covenant of further assurance
1. Anything else a person warrants to do to perfect the title
iii. Covenants of quiet enjoyment and warranty
1. Someone with paramount title will not evict, and if evicted,
grantee has a cause of action
2. Breached only in the event of actual or constructive
eviction of the grantee
4. Damages
i. Damages are the amount x needs to pay to keep the property
ii. Want to put
iii. Limited to consideration except for Further Assurance
iv. If no consideration (gift), then only nominal damages, and 0
compensatory
 
Recording Acts
 
1. Purpose
1. Provide notice to the whole world
2. Protect owners
3. Protect buyers
4. Statutory creation
2. Who Gets It?
1. Common Law: First in time gets it
i. Policy Problem: to way to know what you’re truly getting
2. Modern Law, 3 types
i. Race
1. First in time to record
2. No need to record
i. Leases under three years
i. But must record options to purchase –
possible defense of inquiry notice
ii. Adverse possession
 iii. Easements created by necessity
iv. Easements created by implication or prescription
v. Dower and curtsey rights
vi. Beneficial interest in constructive or resulting trust
ii. Notice
1. Subsequent good faith (without notice) purchaser for value
wins
2. No recording is needed
3. What is notice?
i. Actual
i. Knowledge
ii. Constructive
i. Recording (judicial records, bankruptcy,
probate, tax assessments, etc.)
iii. Inquiry (depending on jurisdiction)
i. Something less than knowledge
ii. Enough information to make it reasonable to
inquire
1. Road (Jefferson County), fence
around property, footpath, etc.
2. If purchasing property, may be
required to ask tenants of their interests (can
be through writing)
3. So, do a visual inspection of the
property and follow up – if it reveals nothing,
at least covered on inquiry
iii. Race-Notice
1. Same as notice IF they record first, otherwise the real
owner wins
2. Requires a bona fide purchaser
3. Recording Acts Analysis (O to A, O to B)
i. What type of jurisdiction are we in?
ii. Is A’s interest the type that can be recorded?
1. If it is not subject to the Recording Acts, under the common
law, whoever got it first
iii. Is B a bona fide good faith purchaser for VALUE?
1. Recording act doesn’t work for inheritance, gift, etc.
i. Even if record, purchaser would trump gift unless
shelter rule
ii. Can give more than possess if A to B as a gift (does
not record), A sells to C (not record), the B sells to D – if D
good faith purchaser, gets even though B wouldn’t
2. Did B take without notice?
3. Who recorded first?
4. Did A, assuming he had to record, record within B’s chain
of title?
 i. If A did not record in B’s chain of title, B can still
prevail
iv. To the extent there are inconsistencies, and multiple rights granted,
first in time prevails if properly recorded
4. Recoding Indexes and Title Searching
i. Grantor Index and Grantee Index (majority of states)
1. Conveyances filed alphabetically by both names
2. Start with the grantee
3. So a title search by going back in time through the chain of
title
4. Keep going until you find the root
5. Go forward in the grantor index to find any suspicious
conveyances
i. Public documents, tax records, probate records, etc.
6. Could face wild deed problem
ii. Tract Indexes
1. Indexed by a piece of land
2. Cannot claim a wild deed
5. Doctrine of Estoppel (Estopped by Deed)
i. O has property; A to B, then O to A
1. B originally has only an EQUITABLE INTEREST, not
legal interest
i. Equitable interest is what purchaser has prior to
legal interest
2. As the moment A gets the property from O, B gets it and A
has no claim
3. As between A and B, A is estopped from asserting an
adverse claim
6. Shelter Rule
i. O to A (not recorded), O to B (recorded), the B to C (C has notice)
1. If B records and is a bona fide purchaser, C gets it even
with notice of A because C is sheltered by B
2. C wins because B’s win shelters her
i. Otherwise B couldn’t be a full purchaser because
couldn’t grant gifts
3. B won the land as soon as he recorded the land (if he was
without notice)
7. Wild Deeds (Deed recorded too early, or gap in deeds)
i. O to A (O does not have legal possession yet), N to O, A to B
1. Wild because O transferred before having legal possession,
and thus subsequent purchasers cannot look up title
ii. O to A (not recorded), A to B (recorded), O to C (recorded)
1. Literal reading is that B recorded before C
2. Problem is that B’s duty is to record in all of O’s chains of
title including C;s
3. There is no way C could have found B’s deed
 4. Solution: B needs to go record in O’s name
8. Deed recorded too late, thus outside the chain of title
i. O to A (no record), O to B (record), then A records, B to C
1. Split courts on if to A or C
Intellectual Property
 
1. Policy
1. Balance: reward creators for enriching public welfare without unduly
sacrificing public’s interest in enjoying the work
2. Encourage development of new ideas
2. Trademark Law
1. Generally
i. Source of authority: federal statute (from the commerce clause)
ii. Purpose: protect ownership rights which encourages development
of new ideas (no fixed supply)
iii. Balance: rights of the trademark owners with others who wish to
use the same or similar trademark
1. Only granted the right to prevent other trademark uses that
are likely to cause consumer confusion
iv. Unlike property law, trademark law sets time limits to owner’s
rights
v. Considered abandoned if non use and no intent to resume use
within the reasonably foreseeable future
1. Rebuttable prima facia evidence: three years of more of
non-use (according to GATT) (Silverman v. CBS, “Amos ‘n’
Andy”)
i. If can show likelihood of use in reasonably
foreseeable future, years of non-use rebutted (e.g. Ginger
Spice audition, reason for non use)
2. May also lose/abandonment through loss of distinctiveness
(becomes too common)
vi. Fair use: defense to infringement (Packman, “joy of six” not used
in same way – descriptive, not secondary)
2. Lanham Act 15 U.S.C. §§ 1051-1127
i. “Any word, name, symbol, or device, or any combination thereof”
used “to identify and distinguish one’s goods or services from those of
others “and to indicate the source” of those goods or services
ii. Protects registered marks if
1. Mark is protectable and
2. ∆’s use is likely to cause confusion
3. Trademark Requirements
i. Actual use as a signal
ii. In commerce – as a way of identifying (Marketing activities)
iii. In interstate commerce (federal requirement to meet commerce
clause)
 1. If mark is senior, even if not registered, still protected in its
geographic area (but must be registered to receive federal
protection)
2. Being registered is prima facia evidence of a valid
trademark
4. Principal v. Supplemental Registers
i. Principal Register
1. Provides constructive notice that mark is in use and actual
notice of marks that have been taken
2. Register through applying to Patent and Trademark Office
(PTO)
i. Must show when mark first used (to show priority)
i. Priority only extends to markets you’re in or
are very likely to expand to
ii. Have 30 days to oppose another’s registration
3. Then, after registration, must verify mark is used in
commerce – then put on Principal Registrar
i. No rights until actually in use and actually
registered (not just applied)
4. Registered 10 years but can renew
ii. Supplemental Register
1. If examiner does not consider mark registrable, than can
appeal through courts or do Supplemental R
2. Does not enjoy full protection
3. Purposes
i. Gives notice of marks in use
ii. Can use ®
iii. Can use to assert state rights
iv. Can usually be transferred to Principal after 5 years
iii. Additional state and international requirements
5. Polaroid Test (used in Jordache v. Levi) (sophisticated degree holders
have good faith in the actual strength and quality of proximate bridges)
i. Strength of the defendant’s mark (weakest to strongest) (weak can
be a fair use defense)
1. Generic
i. Kleenex, Xerox, Aspirin
ii. Can never be registered
iii. Describes not distinguishable characteristic
2. Descriptive
i. Kentucky Fried Chicken
ii. At the beginning is not a trademark, but when
acquires a secondary meaning then registrable
i. Secondary meaning is mental assoc. in
buyer’s mind between mark & single source
3. Suggestive, Arbitrary, Fanciful (from more descriptive to
arbitrary)
 i. Can all be registered
ii. Degree of Similarity between the two marks
iii. Proximity of the Products
1. Will consumers be confused as to the source?
iv. Likelihood that the prior owner will bridge the gap
1. If there is only a subtle difference, then senior mark has
right to move into that market
v. Actual confusion
1. Confusion at purchase, confusion of consumers who see
product and are led to other product
2. Not necessary, but could use surveys
vi. Defendant’s good faith
vii. Quality of the defendant’s product
1. Will it bring down value of senior product or
2. Are they of the same quality and thus seem to have the
same source
viii. Sophistication of the consumers
1. Levis: argument to sophistication increased likelihood of
confusion
3. Copyright Law
1. Generally
i. Includes literary, musical, dramatic works; pictorial, graphic, &
sculptural works; motion pictures, sounds, etc
ii. Source of authority: Clause 8 of the federal constitution
1. Codified in 17 U.S.C.
iii. Purpose: promotion of the arts and sciences
iv. Protected upon creation, but cannot sue for infringement unless
copyrighted
v. Merger doctrine: if only limited number of ways to describe
something (rules, recipe), then cannot copyright
vi. Duration: life of author + 70 years
2. Test
i. Is there a valid copyright and what is its scope?
1. Creative or factual? (original)
ii. What of that has been copied?
iii. Who has what interest?
1. Joint or individual as to their contributions?
2. Is it a work for hire?
iv. Is there a fair use?
3. Requirement to Recover
i. Ownership of a valid copyright
ii. Unauthorized copying of constituent elements of the work that are
original
4. Originality Requirement
i. Just has to be original, not new (just not copied)
 ii. No valid copyright for facts because not original (Feist
Publications, phonebook info not original)
1. Creative coordination and arrangement of facts could be
protectable
iii. Policy: Primary objective of copyright is not to reward labor of
authors, but to promote the progress of science and arts
5. Infringement and Fair Use Test (§ 107) (Religious Technology Center,
Scientology) (PANE)
i. The purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes
1. More acceptable: criticism, comment, news reporting,
scholarship
2. If use of the work was for commercial gain
ii. The nature of the copyrighted work
1. Factual less protected than novel/fantasy because less need
for novel work
2. Narrower allowance if unpublished
iii. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole
1. Quantitative and qualitative components
iv. The effect of the use upon the potential market for or value of the
copyrighted work
6. Damages Factors
i. To what degree do the relevant postings infringe
1. See Infringement and Fair Use Test
ii. How many acts of infringement occurred
1. One infringement per copyrighted work
iii. To what extent was the infringement willful
1. Did ∆ represent that he owned the copyrighted work?
2. Not less than $500 or more than $20,000; if willful then up
to $100,000; if unaware than $200
7. “Work made for hire”
i. Def: “work prepared by an employee within the scope of his or her
employment” or a “work specially ordered or commissioned” through
express written agreement
ii. Possible factors (no one is determinative)
1. *Control of end products and means to that end
2. Source of instruments and tools
3. Location of the work
4. Duration of the relationship between the parties
5. Whether the hiring party has the right to assign additional
projects to the hired party
6. The extent of the hired party’s discretion over when and
how long to work
7. The method of payment
8. The hired party’s role in hiring and paying assistants
 9. Whether the work is part of the regular business of the
hiring party
10. Whether the hiring party is in business
11. The provision of employee benefits
12. The tax treatment of the hired party
iii. If not work for hire, is it a joint work?
1. With intention of merger into a unitary whole
2. If joint, each over the whole, if individual, then over what
you created
4. Publicity
1. Misappropriation of Information – don’t need copyright (according to
Motorola, “hot-news” exception only survives preemption for narrow scope)
i. “Hot news” test – protected
1. Plaintiff gathers information at a cost
2. The information is time-sensitive
3. A defendant’s use of the information if free-riding
4. The defendant is in direct competition with a product or
service offered by the plaintiffs
5. The ability of others to free-ride would so reduce the
incentive to produce the product or service that its extensive or
quality would be substantially threatened
ii. Problem is when ∆ free rides off π with a directly competitive
product because lower costs
2. Publicity
i. Split:
ii. Split (some recognize by statute, some common law, some not):
right of publicity may be descendible (Elvis)
iii. For publicity: celebrities have plenty of incentives to pursue fame,
a mere image not a trademark if not identified with particular source
(Tiger Woods painting) (Vanna White)
iv. For right to exclude: encourages people to reach celebrity status
because creating valuable capital for heirs, individuals right of
testamentary distribution, discourage deception with regard to
sponsorship
v. (Vanna White) Okay for advertisers to remind public of celebrity
1. Right to actual image, but not to control our thoughts
Reducing too much to private property dangerous – stifles creative forc