Professor Bryant Spring 2002

PROPERTY OUTLINE
The central problem in property is: If a person can call this his property, how will that affect another?
What it means to own something:
1) I can transfer it
a. Give it
b. Sell it
c. Rent it
2) Destroy it
a. When property takes on a value that exceeds that of property ownership, we lose the ability to destroy it.
b. In the US, destroying something is pretty much okay.
3) Use it
a. Restrictions on use.
b. Ex: Cant use cell phone in car unless its hands free; my right has been given away to the public
c. Pledge it
i. Hypothecating it.
Underlying property law is belief = each piece of land is inherently special unique irreplaceable limited
resource on planet

FIRST POSSESSION: ACQUISITION OF PROPERTY BY DISCOVERY, CAPTURE, AND

CREATION
A. Acquisition by Discovery
Johnson v. MIntosh (1823), p. 3
Facts: Johnson (P) bought land from the Indians. MIntosh (D) had grant of land from the US. Both justly obtained land,
and P wants to eject D from land. P claim first in time (both land conveyances from Indians) D says that the Indians
never owned the land, US only had authority to sell land (authority of grantor). They had legal occupancy rights, but
no right to buy/sell land. The US govt exclusive right to extinguish Indian title of occupancy, either by purchase or
conquest, and also right of sovereignty. P wants the sale of land enforced because someone is on the land. If he doesnt
do this (ejectment), he might lose his right to the land. Quiet title he is quieting any disputes there may be about
ownership of this property. [lease land of Indians with occupancy rights v. ownership rights [as long as government
feels like it]
Held: The Indians had no entitlement to the land; they had occupancy only. If they arent using it productively, they
have no entitlement. (It is actually whoever has the power to define what productivity is.)
Reasoning: Acquisition by discovery- Indians have right of occupancy, possessory interests; US govt has ultimate
dominion acquisition soil fee title have all ownership rights for future (biggest ownership you can have)
Note: Another reading is that this opinion made it impossible for individuals except the US govt to take advantage of
Native Americans for offering them small amts of money. Purchases by the government would be respected.
Note: Doctrine of discovery has principle of first in time: justified if first in possession, occupancy property law
Note: Law of accession (AP): person adds property of another b/c add labor (must enhance value of land by labor).
Class: Johnson has possessory interest yet difficulty in defining legal entitlement goes with possessory interest v.
ownership of ppty; present v. future owners; co-tenants, possessory v. ownership entitlement; change of title (tracing
train, going back, * in recording title, relativity of title * (strength of title), concept of title not absolute (relative concept
of priorities)
Tee-Hit-Ton v. US, 348 US 272, SCt, 1955 (Prof Bryant just told us about this case)
Facts: Secy of Agriculture sold park to private timber company not withstanding any rights to occupancy claims;
Indians claim is that they are exercising their occupancy rights by utilizing the land land, unlike Johnson v. MIntosh,
therefore can take the land as private property.
B. Acquisition by Capture
Pierson v. Post (1805), p. 19
Facts: Post was chasing a fox with a group of hunting dogs most of the day, and when he was finally about to capture the

fox, Pierson (knowing that Post was pursuing the fox) kills the fox and takes it for himself. Question of: whether Post
had acquired a right to, or property in the fox.
Held: Vague. Might require wounding, circumventing, or ensnaring animal to deprive them of their liberty, and subject
them to the control of the pursuer for have a right of occupancy (acquiring right to wild animals).
Dissent: Need incentive to kill fox (nuisance to society), should use custom instead of arbitrary bright line rules courts
create.
Note: majority held for sake of certainty and preserving peace and order in society, v. (dissent) promote destruction of
pernicious beasts & custom
Class: Sorry, cant solve all problems in the courtroom
C. Acquisition by Creation
1. Copycats
Foundation of proprietary rights is expenditure of labor and money (past effort)
International News Service v. Assted Press (1918)
Facts: Int News Serv was copying news gathered by AP.
Held: Ct said AP had quasi-property interest in the news it had gathered and could prevent competitors from using it
until its commercial value as news had passed away. Seen as unfair business practice, fo sure.
Notice: How is this diff than fabric design? Why didnt INS control Cheney Bros? We want to give incentives to create
several diff news stories. We dont really care if we have several diff clothing designs. The level of protection is based
on how important we think the information is.
Cheney Bros. V. Doris Silk Corp. (1930)
Facts: Fabric designers create several designs. Doris Silk comes out w/ design first. Then, Cheney Bros. comes out w/
same design and undercuts Ps price. P wants protection during first season of sales. No copyrights or law forbidding to
copy it. Removes incentive for fabric designers to create fabric designs.
Held: Ct say that mans ppty limited to chattels which embody his invention. Others can imitate. Tho it sucks, bigger
things in stake. Congress should be only ones to prevent imitation (b/c that gives monopoly to Cheney Bros)
Note: Ct doesnt value fabric designs (at that time, but later values with copyright rules), yet values news (so calls it
quasi-property very arbitrary)
Smith v. Chanel (1968)
Held: Copiers serve public interest by offering comparable for unpatented good at lower price; b/c its unpatentned and
even if trademark (w/ lots of $$ invested), doesnt mean they can monopolize publics desire for unpatented good.
Notice: Greater public good (comparable good at lower price no monopoly, improved product) v. incentives to create
goods (monopoly). Similar to Cheney Bros.
Note: patents (20 yrs), copyrights (expression of ideas), trademarks (words, symbols) ways to give monopoly for
limited time or to incentivize w/o completely disadvantaging public; overall for creativity, diff btw copyright, trademark,
and patent
Note: inventor worse off but competitors and public better off (as long as doesnt destroy incentive for ppl 2 invent)
a.

General rule: In the absence of some recognized right at common law, or under statutes (copyrights, etc) a mans
property is limited to the chattels which embody his invention. Others may imitate these at their pleasure.

2. Cyberspace
Virtual Works, Inc. v. Volkswagon of America, Inc. (2001), CA, p. 69
Facts: Virtual Works (D) challenged by VW (P) under Anticybersquatting Consumer Protection Act (ACPA) Internet
version of land grab doesnt allow deliberate, bad-faith, abusive registration of Internet domain names in violation of
the rights of trademark owners (register well-known brand names as Internet domains to profit off this).
Held: Ct held D in wrong, b/c bad-faith in obtaining name (intent important). ACPA enacted to prevent expropriation of
protected marks in cyberspace, to stop consumer confusion, and encourage growth of Internet.
Issues: Brand names are important; cybersquatters: taking domain name; parasites: cybersquatters who tarnish image of
trademarks; poachers: register domain names that use names of other organizations to disseminate unfavorable info
about them
Issues: hard to govern (file sharing); privacy: concern on Internet even tho + side is publicity.
Class: why can we have litigation for poaching (anti-cybersquatting protection consumer act)? Whats diff btw

cybersquatting, parasites, and poachers and how can it be applied differently with the ACPA?
3. Property in Ones Persona
Issues: celebritys right to publicity property interest during life including name, likeness, & other aspects of ones self
-rooted in right of privacy; is alienable and inheritable; similar to patent and copyright laws
-economic incentive to make investments in activities valued in public
4. Property in Ones Person
Moore v. Regents of the UC (1990)
Facts: P had hairy-cell leukemia, so spleen and lotsa blood removed. Ps cells unique and of great scientific and
commercial value. Docs used Ps cells to develop cell line, patented it and entered comm agreements w/o telling P they
were even using his cells. P sue for part of the proceeds of the conversion unlawful ownership of rights over the
personal property of another (equivalent is trespassing for real property).
Held: CA SCt think its more breach of fiduciary duty and lack of informed consent instead of conversion bc:
a. P did not expect to retain possession of his cells (no ppty interest in cells b/c lack certain necess ppty interests/rights)
b. Ds patented material the cell line and its derivative line isnt Ps property b/c inventiveness is patented.
c. Balancing of rights of patient and researcher weighs against P (scientific/medical advances)
d. Resolution of this kind of problem is best left to the legislature (too hairy)
e. The tort is not nec to protect patients rights (use breach of fiduciary duty)
f. Gives rise to issues of body as property (organs okay but prostitution, etc.)
Notice: One arg is that Drs added value to cells. We dont want to stand in the way of research. Another arg is that cells
are not unique.
Note: Hecht (about gift of mans sperm to his widow after his death) says Moore is limited to extracting tissue for med
research.
Class: property in ones person and other personal property areas of law (such as chattel, personality, personal property,
moveable property) may not be the same as real ppty rules but can give you guidance [ownership interest and infringing
on it, conversion (taking someones property and making it your own), trespass to chattels (prevents you from using your
ppty), misappropriation (like conversion)
b.
c.

Property interest = requires right to exclude and right to include.

Owner has obligation to exclude. If you dont, can lose it legally (adverse possession).

Jacque v. Steenberg Homes, Inc. (1997), p. 100

Background: Previously, Jacque failed to exclude someone and lost land to AP.
Facts: A mobile home was delivered across Ps land despite repeated objections. Going across land w/ permission is
permissive use. The Ps were worried about adverse possession and refused to allow them to use land.
Held: The Cir Ct set aside $100K in punitive damages and allowed only $1 in nominal damages. US SCt recognize
landowners right to exclude others from land as essential sticks in bundle of rights that are commonly characterized as
ppty, therefore, must protect this interest with more than $1 nominal damages to deter people. Society interest to
preserve integrity of legal system.
Class: right to exclude is key feature of property; should we punish people from not taking ppty rights seriously with
punitive damages; intuition: isnt it just neighborly to let someone go over land this one time, yet what is the stopping pt
of being neighborly (bright line rule?)
State v. Shack (1971)
Facts: Owner of land wants to stop people from visiting migrant workers on his property based on right to exclude to
keep the visitors off. Landowner required them to meet in his presence or excluded from ppty. They refused.
Held: Ct held that use of ppty isnt injuring rights of others, necessity justifies entering land and no legitimate need for a
right in the landowner to deny worker the opportunity for aid. Ownership of real ppty does not include right to bar
access to govt svc available to migrant workers (therefore, no trespass if they come on ppty). Unique characteristic of
population (mobile, isolated) creates limit to farmers ppty interest.
Notice: Ppty rights serve human values (cant include dominion over destiny of ppl on premises and law denies
occupants power to contract away what is deemed essential to their health, welfare, or dignity.
The ct says there is a reasonable restraint on a persons rights. Govt officials can enter ppty but can never AP (must
have right of trespass to be able to AP)
Class: must balance right of person (invitees of owner, people providing gov svcs) v. ppty interests. Where are limits
(eg. merchants, relatives visiting?); farmer needs protection for extra liability for people on ppty; is situation like LL-T or
employee-employer? Issue of differentiation of housing v. office area for migrant workers; courts choose framework to
use in courtroom;

d.

e.

Right to exclude - central aspect of property. The right to exclude, reaffirmation of what it means to own ppty, was
completely validated in the Jacques case. In contrast, in State v. Shack, the property owner could not set limits on
access to his property. Still have the question of sometimes we can exclude and other times we cannot. A ct will
look at certain factors to determine whether or not an owner can exclude.
i. One of the factors is what kind of property do we have. In State v. Shack, its where the migrant workers
actually live residential property and Tedesco is saying that its commercial property. Ct says its
residential property. Commercial property owners have more leeway as to what can happen on their
property.
Limitations on right to exclude: civil rights legislation forbidding discrimination; rent controls and limitations on LL
right to evict tenants; law of AP; bodies of doctrine granting public rights of access to private beaches; legislation
protecting homeowners who have defaulted on mortgage payments

Hamidi v. Intel. (2003), CA SCt

Facts: Intel maintains e-mail system; Hamidi (former employee) sends email to current employees criticizing Intel, H
says he didnt breach any security barriers; left when told to leave (by recipient of the e-mail) [took e-mail recipient off
list]; email caused no damage to system; didnt deprive Intel of use/ownership of system
Issue: Is this tort of trespress of chattel? Does Intel have a right to exclude and who is burden on?
Held: S/J in CirCt; divided CtApp; SCt says that trespass to chattel does not encompass electronic communication that
doesnt damage computer system or impairs functioning damage has to occur with trespress to chattel.
Note: Trespass to chattels: must injure/damage ppty
Note: Who has burden of filtering system: email sender or system maintainer? Is intent important? (Unlike the
cybersquatters intent, it is not important in this case.)
Majority: Feels bad for Intel, but cant give relief b/c cant extend trespass of chattels here. Technological relief
available. Rejects cyberspace as ppty, otherwise, infringe on 1st amendment rights (shut down freedom of speech);
Internet is public free exchange of info if email goes into intranet system, will everyone have to read intranet
requirements for every email we send and are we liable? Then internet will fall apart w/ trespass of chattel.
Minority: Time and money spent by Intel. Its like using their closed private system intranet (like putting into private
mailroom of Intel) yet majority says that H must injure/damage system to have cause of action. Intel invest in this yet H
use against company. Discourage people from investing in intranet (and burden to stop H is more efficient with courts
than private)

SUBSEQUENT POSSESSION: ADVERSE POSSESSION

Acquisition by Adverse Possession
The obligation to exclude: if you dont exclude people, then they have the ability to take your property. The other person gets quiet
title of your land.
A. The Theory and Elements of Adverse Possession
a. The running of the SoL on the owners action in ejectment not only bars the owners claim to possession, it also
extinguishes the old title of the owners and creates a new title by operation of law in the adverse possessor. An AP
must file a quiet title action against the former owner to record his ownership at the courthouse.
b. Purposes of doctrine:
i.
To protect title: protects ownership b/c title may be difficult to prove.
ii.
To bar stale claims: Another purpose of SoL is to reqr a lawsuit to be brought
to oust a possessor while the witnesses memories are still fresh.
iii.
To reward those who use land productively: By rewarding those who use land
productively and by penalizing those who let land lie unproductively, AP encourages productivity.
iv.
To honor expectations: Giving effect to expectations is a policy running all
though the law of property.
v.
Look at demerit of one out of possession instead of APers merits.
vi.
AP v. first in time!
Elements of AP
1. Actual entry giving exclusive possession
2. Open and notorious
3. Adverse and under a claim of right
4. Continuous for the statutory period
c.

Elements of AP
1. Actual entry
a. Possession must be exclusive and of such a nature that the community would think of the APr as
the true owner
2. Open and notorious
a.
Depends upon the land, its size, condition, and locality. E.g. farming on land is clearly open and
notorious.; (eg. Lutz: improvement of land)
b.
May exist even if occupant does not reside on ppty and doesnt use for long time.
c.
Mind set requirement (CT (doesnt matter) v. Maine doctrine (must be hostile))

Van Valkenburgh v. Lutz (1952), CtApp of NY, p. 129

Facts: State had gotten land b/c others hadnt paid taxes on it, Valkenburghs bought land even tho Lutz used land and
possibly AP-ed it. Lutz entering the lot in 1912 via the route. In 1916, they started farming there. In 1920, they built the
little house.
Held: A party must occupy anothers land under a claim of title in order to acquire title by AP.
The ct found this (1) to be an issue. The ct looks to the utility of the land.
Element (3) is that he originally said he didnt own it. By 1935, he had already acquired it and cannot claim that he
doesnt own it.
1. Under the statute, to acquire by AP one must clearly and convincingly show that at least for 15 yrs there has
been actual occupation of the land (enclosing the land or usually cultivated or improved) under claim of
title.
2. There was no enclosure here. D must show land was cultivated or improved sufficiently to satisfy statute. (Ds
garden was not shown to be substantial, etc.) must cover most of area and be substantial, yet didnt show this.
Failed to show that ppty was improved (essential element of proof for claim of title so couldnt even quiet
title)
3. D, in prior lawsuit, voluntarily admitted P owned the land. Thus, Ds occupation was not under claim of title.
Notice: The Ct says for AP you need the above four elements: (1) actual entry; (2) open and notorious; (3) adverse and
under a claim of right; and (4) continuous for the statutory period.
Dissent: when Lutzs first came, wild and overgrown but turned into substantial farm that was open and notorious
(neighbors). Though didnt claim land, intended to occupy property as their own; acts are enough. Requirement: act as

if owner and give real owner notice of your hostile claim. Statute doesnt require entire lot to be cultivated, just most of
it.
Note: Cavesyou own property under and above your property. So you own property below (cave if its in your ppty)
and hard to AP b/c you have to be open and notorious.
Note: Claim of title is diff than color of title. Claim of title is one way of expressing the reqt of hostility or claim of
right on the part of the AP. Color of title refers to a claim founded on a written instrument (e.g. will or deed) or a
judgment or decree that is for some reason defective and invalid (not required in England and in most American
jurisdictions). Color of title: have more lenient AP requirements. Constructive adverse possession: actual possession
under color of title of part of the land covered by defective writing is actual possession of all that the writing describes.
(gets all ppty in deed), subj to limitations (look at problems on p. 146)
Note: State of mind required of AP-er:
1. Objective standard -- state of mind irrelevant (England)
-since true owner has cause of action when any entry against true owner, shouldnt SoL run then too?
-also, purpose of AP based on true owner, not AP-er
2. Good-faith standard -- I thought I owned it. (sometimes in US)
-courts take into account of state of mind (b/c dont want to award bad-faith trespasser)
3. Aggressive trespass standard -- I thought I didnt own it, but I intended to make it mine.
-necess that AP starting off, b/c then AP-er wont be inconsistent in purpose (?)
-possibility: require bad-faith AP to pay fair-mkt value of land after AP-ing to deter consciously wrong activity
Note: Should Lutz pay for taxes for AP land?
Note: Lutz moved things around; if used 25% of land, gets only 25% of land unless inclosure b/c you have to show true
owner (open and notorious) your occupation
Note: AP and O both have responsibility yet all states have mixture of rules
Issue: must have claim of right mindset in which demonstrate acting as legal owner (right of exclusivity)
Mannillow v. Gorski (1969), SCt of NJ, p. 147
Facts: D built concrete walk that extended onto Ps lot by 15 inches. P filed a complaint seeking an injunction against
Ds alleged trespass. D counterclaimed seeking a declatory judgment to declare he had AP of the land.
Held: Possession must be exclusive, continuous, uninterrupted, visible, notorious, and against the right and interest of
the true owner.
Doctrines on mistaken belief requirement for requisite hostile possession to sustain AP:
Maine doctrine: AP only if AP-er intented to claim title (hostile), yet if innocently do, cant AP; rewards
premeditated, predesigned hostility.
CT doctrine: intention is irrelevant, as long as nature of act (entry and possession) asserts his title to ppty and
denies others; more responsibility to O.
Cts decide on CT doctrine, and then address issue (2): notice, open and notorious. Small encroachment thats not
noticeable to true owners requires true owner to have actual knowledge of AP for it to be open and notorious. Yet if hard
for AP (who undertook with innocent/mistaken belief), then can pay market value for property.
Note: This case is about mistaken belief of AP, and small encroachments, yet Os awareness is more * than APs mindset.
Does APs action put O on notice?
Note: Mistaken boundaries:
Doctrine of agreed boundaries: if uncertainty btw neighbors as to true boundary line, an oral agreement to settle
the matter is enforceable if the neighbors subsequently accept the line for a long period of time
Doctrine of acquiescence: provides that long acquiescence is evidence of an agreement btw parties fixing
boundaries lines
Doctrine of estoppel: when 1 neighbor makes representations about the location of common boundary and other
nerighbor then changes her position in reliance on the representations or conduct.
Note: Mistaken improvers: early common law harsh: require tearing down, irregardless of good faith. Modern tendency:
force conveyance of market value for innocent APers and if inconvenience of innocent encroachment minor, then no
relief [economically efficient and if land doesnt have lots of value]. O isnt responsible for being vigilant. Diff if O
knew of AP.
Actual knowledge: you definitely know
Inquiry notice: someone told you
Constructive knowledge: if reasonably person can see AP, O should have checked it out.
Issues: 1) did O know of AP; 2) if not, is P obliged to convey disputed tract to D; 3) who should pay for this?
B. The Mechanics of Adverse Possession
Howard v. Kunto (1970)

Facts: Everyone was pretty much living on the wrong property. There was a survey done by the Millers, the Kuntos
predecessors, which said that everything is fine. Another company later does a survey and realized that there was a
problem, and Howard has actual deed to Kuntos property and want it. Kunto wants to AP land, by tacking on Millers
time.
Held: The ct starts off by saying that the surveyors arent always accurate. Ct rejects the lower cts conclusion that there
was no contous use, uninterrupted b/c the nature of the property was summer home property. Ct looks at nature and
condition of ppty similar to true owner. The tacking problem in this case is that we have several transfers during the yrs.
They were innocent APs. The tacking principle is that you add up AP1, AP2, if you can do that for the entire
statutory period. That counts as if you have one AP for ten yrs. The subsequent transfers do not mean that each
AP starts a new SoL. Permitted with privity (color in title) b/c legitimate and innocent (so squatter wont profit
from his trespass) Strong public policy favoring privity APs.
-exact determination of land (surveying difficult) so understandable that deeds messed up (surveying not reasonable
or customary)
Note: purpose of AP to utilize land b/c O not using ppty and slept on her rights.
Note: AP rules favor economic exploitation of wild lands
Tacking: tack SoL you get through color of title that X unknowingly AP-ed and X intended to convey to buyer.
-can tack many different parties together but require privity (legal reasonable transaction btw people)
Color of Title: refers to a claim founded on a written instrument (a deed, a will) or a judgment or decree that is for some
reason defective and invalid.
Disabilities: if person disable (age of minority, of unsound mind, or imprisoned) at the time of the cause thereof accrues,
after the SoL from the time the cause of action accrues, they may have 10 extra yrs after such disability is removed. A
disability is immaterial unless it exists at time when cause of action accrued (when AP started)
Note: arg of actual time of entry and if open and notorious
Note: Os legal status at point of entry is only relevant
Note: if O dies right before SoL, and minor inherits land, then disabilities works.
AP against the Govt: Common law: AP doesnt run against govt b/c stat owns its land in trust for all people so cant
lose land b/c of negligence of state employees. Sometimes, period longer, permit AP of govt land for only proprietary
capacity.
AP
Actual entry implications for SOL
Open, notorious occupation (start SOL if constructive notice to owner of record)
Adverse to owners legal interest (exclusive) & under claim of right (Lutz case?)
Continuous for the statutory period tacking of APs? (predecessors and successors need to meet all requirements, AP2 have
burden of proof hard w/o privity
Need privity to continue SOL for tacking.
If all elements are met by entire statutory period, still issue of:
1) Abandonment by AP1 (SOL ends)
2) Hostile take-over from AP1 to AP2 (AP1 attempts to get but not sure)
Disability section:
Only disability at point of entry matters.
For severe cases when SOL ends, 10 yrs longer
Court uses which ever one is longer of the two SOL.
Only owner at magic moment (time of entry) is relevant other disability dont matter
Jurisdiction hesitant to allow hostile adverse possession
(1) AP voluntarily gets transferred property by previous AP with privity
(2) appears to have been violent take-over, someone forced someone else off land
(3) AP1 abandons time frame that AP1 has acquired
intra-equity, impact on scenario on SOL against owner
IMPLICATION OF MAGIC MOMENT: what has happened over timeline at magic moment (who owned it and disability) cant
tack on time, etc, disability for ownership
PROBLEMS FOR ADVERSE POSSESSION
Constructive Adverse Possession, p. 146;

1) O owns and has been in possession of 100-acre farm since 75. In 90 A entered the back 40 acres under color of a invalid
deed from Z (who has no claim to the land) for the entire 100 acres. Since her entry, A has occupied/improved back 40 acres in
usual manner for period required by SoL. A brings suit to evict O from farm, claiming title by constructive AP.
Ans. O only uses front 60 acre, so A gets 40 and O gets 60 acres. Reward front 60 to O b/c O hasnt given it up both didnt
exclude each other with the land they used now, so should get title (so no confusion later on) ownership doesnt have to have
quiet title. If fulfill AP requirements, then quiet title is only court recognition.
2) Situation 1: Z sells invalid deed for lots 1 and 2 to A. A enters lot 1 as owner, but doesnt use lot 2. A sues X and Y to get
both lot 1 and 2. A should only get lot 1 (if fulfill AP requirements for lot 1) b/c A didnt give Y notice (open and notorious).
Situation 2: if X executes transaction to A to sell both lot 1 and lot 2 to X even tho X only owns lot 1, then A still hasnt given Y
(owner of lot 2) notice, so A only gets lot 1.
Situation 3: If X executes transaction to A for lot 1 and 2, and A enters lot 2. Then A gets both lot 1 and 2, as long as no one APs
lot 1 while A was on lot 2.
Trend: AP used as title cleaning function. So adverse possession used to make A AP O. SoL getting shorter.
Adverse Possession Tacking, p. 160;
(1) Q: Can AP2 kick off AP2 and then AP land?
A: Since AP2 doesnt have privity with AP1 and hostilely take, then SoL starts up again with AP2.
General Rule: relative claims to entitlement AP1 has right over AP2 but O has rights over AP1 and AP2 before SoL runs out.
Rule: For most part, unless big rule changes, AP has cause of action against B, so feel better about saying that if you cared
enough about land to acquire land, then you should have come to court.
Time during litigation: Tacking depends on whether B was open and notorious during litigation to give O notice. (Compromise:
AP tack on time of litigation to SoL from first time of entry)
What is enough to prevent AP: Whatever it takes to keep AP off land.
(2) A enters Blackacre adversely and O is owner. O dies and leaves to B for life and remainder to C. After SoL, who owns land?
Ans: A.
Subsequent changes on ownership doesnt change anything b/c SOL starts running. C has cause of action b/c B is wasting
property and their property interest. Ct might say that C doesnt have claim b/c no possessory interest in ppty. So some say that
C should go after A directly.
(3) O dies, leaving Blackacre to B for life, ,remainder to C. With 10 yo SoL, A enters in 87 and B dies in 01. Who owns land?
Ans: C.
B has life possessory interest and C has a future possessory interest when A comes onto land. Therefore, when in 97, A gets Bs
life possessory interest, but not Cs future possessory interest. A must AP in both possessory periods to quiet title in FSA in land.
Adverse Possession Disabilities, p. 161;
O owner and A adversely enters on 76, age of majority is 18, SOL = 21 yrs. After disability, have 10 yrs of break.
A disability is immaterial unless it existed at the time when the cause of action accrued.
1) Os insane in 76; O dies insane and intestate in 99 (w/o disability provision, A APs in 97)
(a) Os heir, H is under no disability in 99
Since O was insane at entry and until 99, O has 10 yrs til SoL runs out. Ans: H
(b) Os heir, H, is 6 yo in 99.
A SoL runs out in 2009. H will not be in age of minority in (12+99 = 2011). Ans: A
2) O is w/o disability in 76. O dies intestate in 94. Os heir, H, is 2 yo in 94.
76+21 = 97, H can get land in 94+16 = 2010. Ans. A
BRIGHT LINE RULE Only disability at magic moment count.
3) O is 5 yrs old, turns legal in 89, and gets 10 more years after that, which is 99. Os other disability is legally irrelevant,
and Hs disability irrelevant. Ans. O gets land in 99 b/c O dies in 01.
4) A adversely enters in 76, and then in 89 O disappears. 76 + 21 = 97 B wishes to buy from A.
Ans. A will accept huge discounted price from B b/c potential of O coming back before SOL. A can selling to B with privity
(tacking). Or ask A to quiet title, (to show B that O isnt around) and A indicates yet didnt complete statutes.
Ans. If SoL has passed, then (1) get A to quiet title, after accomplishing all AP. Then A can sell property to become new
owner and sell at full price, or (2) can get privity from A and then attempt to quiet title by AP and get a discounted price.
1.

Adverse and under a claim of right

a.
Must have a claim to the land adverse to the owner. If possessor has owners permission to be on
the land, then not there adversely.
b.
Majority view: what is adverse depends on actions of possessor, not her subjective intent.
Possessors act must look like claims of ownership.

c.
d.

2.

Minority view: the possessor must have a good faith belief that she has title to the property.
Color of title: a minority of jurisdictions also reqr possessor claim title via written instrument.
The written instrument can be something like a gorged deed, a deed from a Gor who did not own
land, etc.
e.
Boundary disputes: most cts will apply the objective test to determine if one of the parties has
acquired title to the disputed strip of land by AP. Thus, by putting up a fence and using the land for
the nec number of yrs, the one party can acquire title to the land.
Continuous for the statutory period
a.
This reqt will be met when possessor maintains possession for SoL.
b.
Tacking: some cts allow AP to tack time in possession onto that of his predecessor in interests
period of AP. In order to tack there must be privity of estate b/w the two APs.

b. Adverse possession might require you to have land that you dont want (works the other way as well)
c. One possibility subjective test: good faith; its mine. Some people say that basing it on a written instrument and
color of title would be a good faith belief that its yours. Another good faith std is the aggressive trespassing its
not mine, but if no one kicks me off, then its mine.
d. Another std is the objective std: Your state of mind doesnt matter. Looks like mine to a reasonable person.
d. Our primary position of adverse possession was to create incentives for development.
e. The std is that you have to exclude trespassers. You dont have to put it to its most efficient use.
f. What we generally have is people who generally believe they own the land investing in and improving the land.
g. What does society get from having an adverse possession rule?
i. You go to buy land from somebody. They claim to have owned the land for 20 yrs. It ends up that the deed
it not authentic. They bought the wrong lot. The owner says he can quiet title the land. Then, land stays in
commerce. Whatever defects there are in a title, adverse possession cleans these up. Three diff
perspectives: (1) owners perspective; (2) adverse possession std; (3) the rest of us who want some
assurance that the land we are buying is the land. If you believe that we should only leave adverse
possession in good faith, then you would only allow the color of title defense.
h. Policy considerations:
AP pros and cons:
Efficiency
Fairness concerns
Administrative ease
Human nature
Adverse Possession (against):
1. Efficiency
a. How efficient is it for a legal rule to exist that requires people to run around to monitor their property and
kick people off their land?
b. Why shouldnt just owning the land and having a permit for the land be enough (act of buying properly and
recording it why isnt that enough of a level of activity to prevent AP)?
c. The inefficiencies of owning property that requires such upkeep.
2. Fairness concerns
a. If property was acquired with all fairness (honestly), that should be enough to acquire the property.
(efficiency and fairness overlap)
b. Shouldnt owner be able to decide what to do with his land let it lie fallow if he wants. Why should we
substitute reasonable persons judgment for owners judgment?
c. If the owner is unable to protect his interest (e.g. child gets land from grandparents).
d. Property taxes almost all western states good faith mindset; it also goes to fairness mindset. Not all
states reqr that b/c the fact that you could have AP you have to pay property taxes
3. Administrative Ease
a. Are they there because they want to take it away from actual owner or are they there by mistake? We are
trying to find out whats going on in someone elses mind why cant the record just be the record? .
b. You must go to the property itself to see who else is there. Would someone else have thought someone else
lives there?
4. Human Nature
a. Its not a good idea for a legal system to fight against what a person would naturally do.
b. AP can cause fighting and violence. You must do what it takes to keep that person off your land. All of
this means that if we have an AP rule, we are opening up the door the self help (violence)

c.
d.

It doesnt pay to be a nice neighbor under this rule. You have to imply that they are going to quiet title
what isnt there. Or you have to worry that you are going to teach them the rule, and now they are going to
try to go to ct and try to take your land. Is it reasonable to have such a rule that will result in conflict?
How about people who are incapable of monitoring their lands- sick, kids, etc..

All of the above says that AP causes unnecessary conflict.

Adverse Possession (benefits):
1. Efficiency
a. Land is out there, and there is one less factor affecting its value.
b. Cleaning title gives us title certainty. Assurance that your title is good, and someone cannot swoop down
from the past and assert that the land is hers. We need some SoL on owner. Cleaning title raises value of land.
c. The need to have staled claims close out. Wealthy people go for shorter statutory periods because they are
buying land with the intention of putting it back on the mkt for a profit turnover with assurance.
d. Want ability to transact with our land.
2. Fairness concerns
a. Mindset was really important if you are worried about fairness.
b. Acquiring property by capture of by good faith. Less social utility from acquiring the land violently than
acquiring land to utilize it effectively.
c. Once you set the rules in motion you are getting a reduced cost. Getting reduced cost in purchase of land in
exchange for that you pay a small amt to monitor the land.
d. Wont waste a valuable asset. Satellite example you have to show that you value your space enough that you
want to use it. Underlying property law is belief = each piece of land is inherently special unique
irreplaceable limited resource on planet
3. Administrative Ease
a. Underlying belief that every single tract of land is unique and potentially more valuable to one person rather
than another.
4. Human Nature
a. Having worked to get the property and the idea that people gain reliance interest in their work product. The
static in society if we decided that it doesnt matter how much you put into the land.
i.

Most common problem in AP is boundary disputes. Someone puts up a land without putting up a fence or puts up
fence wrong way.
j. Property taxes: Sometimes reqd for AP b/c: (1) Goes to good faith element- whether you actually think you own
the land, and (2) Fairness- if youve been paying taxes then should own it.
k. Constructive AP = legal consequence of what youve done is as if youd satisfied the elements of AP; have privity
i. Majority states Dont need color of title doesnt show your activities to get that deed. You could have a
good faith belief that own land w/out the deed.
ii. Reach of color of title for AP:
l. Notice: The rules of AP are inconsistent in the prospective they take. It seems that sometimes all you are caring
about is the actual owner and other times it seems that all that you are caring about is the APs rights.
m. Color of title is limited by a respect for the owners prior in time failing to get in the space. You are equally
blameworthy, so we are going to leave the property titles where they lay.
Disabilities
Disability is wrt to age of minority, of unsound mind, or imprisoned. Statutory limitations on how long until action can
be brought against the disabled person - # of yrs before action can be brought after the disability is removed.
Notice: A disability is immaterial unless it existed at the time when the cause of action accrued.
AT MAGIC MOMENT
AP Against the Govt
Notice: You cant have AP against the govt, but the govt can gain AP over your land. Double std problem.
AP Remedies for encroachment:
A = owner of record
B = encroacher = AP
A

B
Bs encroachment

10

There are three remedies that cts have chosen:

1. B must tear out encroachment
a. Bad faith B took land intentionally
2. B can keep encroachment w/o any payment (B can quiet title encroachment)
a. Substantial burden to B to tear it out; good faith/innocent
b. What are the circumstances that this can be chosen?
i. B has met all the reqts of AP.
ii. In casebook under boundary disputes
iii. B keeps encroachment if encroachment isnt de minimis.
iv. Agreement, and theyve lived with it for quite a while. It doesnt meet the statutory period, but you have an
agreement backed by your actions and agreement.
v. A encouraged them to do it, and then B accepted that and acted in relying on it. A would be estopped from
exerting power over that land.
3. B can keep encroachment only if B can pay A for that piece of land.
a. If B refuses to pay the ct ordered amt of money, his choice is to tear out the encroachment.
b. The encroachment was innocent
c. Cost too great to remove encroachment
d. Societys interest
e. A is likely to exert monopolistic power
f. Evidence is fuzzy; ct is unclear about what actually happened.
g. For whole lots of land, its an all or nothing kind of deal.
h. Under what circumstances would a ct choose the amt B pays A?
i. E.g. B pays A any price that is less than tearing out encroachment (such as building). A does not have to
agree. A can exert monopolistic power. We take that monopolistic power away when it is a hospital, etc.
The ct forces the transaction and decides the amt B will pay A (ct does not leave it up to bargaining power
of parties.)

11

Chapter 3: Possessory Estates

Fee simple terms
Heirs: if person dies intestate (w/o will), then goes to heirs. Heirs are persons who survive the decedent. First issue, then if no issue,
parents, and then to collaterals; no one has heirs while they are living.
Issue: Descendants (children share equally)
Intestate: person who dies w/o a will
Testate: person with will
Testator/testatrix person who makes wills
Escheat: person dies w/o will and w/o heirs, property goes to the State
Fee tail: descents to As lineal descendants (heirs of the body) generation, and expires when A and all As descendents are dead.
(has reversion or remainder after it); abolished this
Estate: bundle of rights with interest in land measured by something (breaks up timeline)
Fee simple absolute: greatest estate you can give
Fee simple determinable: bundle of rights w/o a specific right in bundle, but heir can AP specific right thats out of bundle (but SoL
only starts when owner knows of condition), possibility of reversion
Fee simple subject to condition subsequent: give all bundles of rights in FSA yet subject to determinable factor (if she uses restricted
rights, than property may be taken back by owner with automatic snap back of land); SoL starts when restricted factor is used,
regardless of owner knowing; option to retake land (right of entry)
Executory interest holder: power to have right of entry (not original grantor)
Fee simple subject to executory limitation (executory interest): acts like fee simple determinable, but has someone else execute rights
of owner. Once grantee does this openly and notorious, grantee can start AP to obtain land
Reversion: grantor gets something back
Remander: future interest that follows life estate (future interest to 3rd party, becomes present possessory interest in fee simple
absolute)
Conveyance: giving land away, permanent, cant take it back like landlord-tenant rules, previously called term of years (just like life
estate except measured time by years as opposed to life), and now in conveyances by contract law!
Pur autre vie: something measured by someone elses life (if you buy someones life estate)
Forfeiture restraints: FSD, FSSCS, FSS to EI
Contingent remainder: If gap btw life estate and contingent remainder, then reverts to O.
(eg. if contingent remainder is that H gives A great funeral.)
Possibility of reverter: future interest remaining in the transferor or his heirs when a fee simple determinable is created.
Right of entry: when owner transfers estate subject to condition subsequent and retains the power to cut short or terminate the estate
Future interest in transferees: vested remainder, contingent remainder and executory interests
White v. Brown, (SCt of Tennessee, 1977), p. 221;
-If language is ambiguous, should we rewrite lang in will using words in boxes; see what Jessie Lide intended (what you believe and
what other people see)
-Can we keep alienation of land? Many possible interpretation of Jessie Lides will:
Ct assumption: if dont write conditions categorically clearly, then go to F.S.A (pull towards FSA) cts encourage marketability
Policy: Ct need clear intent. Jessie Lides attempted restraint on alienation must be declared void as inconsistent with the incidents
and nature of the estates devised and contrary to public policy. Notice to other holographic will writers. Trying to effect
holographic wills yet writers probably wont research cts decisions about this.
3 ways to get property:
(1) Testate succession; (2) Intestate succession; (3) Inter vivos conveyance
4 things you do with land:
(1) create them; (2) use them; (3) undo them; (4) legal implications
Issues:
(1) How do you create terms of conveyance in drafting and clean up position of ambiguous words? Choosing boxes
(2) Legal implications of present interest (taxes, etc.); Transferability during life (strictly for testimonial transfer)
(3) Are you still bound to deed (on pain of losing the land)? Can you undo them (esp after 100 yrs)? Effects land marketability,
some of rules cut off b/c too long (too much burden)
(4) AP (quiet title to fee simple absolute after SoL)
*AP only gets true owners property rights (if owner only has life estate, AP only gets life estate of owner if quiet title)
Presumption: To A as FSA as oppose to life estate. Yet cleanest to convey FSA is To A and his heirs

12

Note: Can only convey rights that you have (taking out rights that states have taken away eg. no right to do nothing with land -- AP,
burning tires)
Note: every little piece has to be accounted for (eg. if every piece of the time line hasnt been accounted for, then owner still has piece
of right and has right to reversion)
Note: loop back quality in reversion and right of entry in future interests
Competing public policy concerns: when does clock start running for SoL w/o open and notorious? Marketability of land important
so get rid of burdens more quickly. Yet grantor has option of using FSSCS over FSD if grantor wants protected interest so doesnt
have burden of monitoring/supervising.
Note: CA doesnt have FSD (+ possibility of reverter) so FSD becomes FSSCS and reverter becomes power of determination.
Common rule still valid tho. Diff jurisd narrow categories differently.
EXAMPLES:
Fee simple determinable followed by possibility of reverter
To A and her heirs so long as & if she does ., the ppty shall revert to me or my heirs.
Unfair to grantor! Whenever the condition occurs, AP SoL clock starts running.
Fee simple subject to condition subsequent with right of entry
To A and her heirs, but if A , I or my heirs shall have the right to (enter/reclaim) the ppty
Unfair to conditional holder (A). Whenever you claim something and rebutted, then clock runs.
Forfeiture restraint
To E.W & her heirs, but if anyone attempts to sell the ppty, my heirs shall have the right to enter and reclaim.
Legal community supports this (forfeiture restraint). Grantor concerned about spending, someone conning grantee. She knows and
cares about not losing ppty.
Disabling restraints
To E.W. & her heirs, but if anyone attempts to sell the ppty, such sale shall be void.
Yet invalid forever (restraints), but different if attached with life estate.
Legal community doesnt support this. Possessory interest can mislead everyone by saying that property is hers and sale is void.
-Creditors cant reach her tho they can make sure its your ppty. (possessory rights burden on creditor yet added great amt to
cost to credit companies).
-Ethical question: jurisd decide whether disability and forfeiture restraint look at differently.
Restraint on alienation: [not getting full ppty rights] discourage improvement on land (cant sell land or improve for mortgaging),
concentration of wealth, make land unmarketable, owners creditors cant reach property (something w/ property interest).
-think about whos concerned, rltship btw ppl about things w/ respect to creditors
Forfeiture restraint
Disabling restraint
Fee simple absolute
NOT OKAY
NOT OKAY
Life Estate
OKAY
NOT OKAY
Baker v. Weedon, (SCt of Mississippi, 1972), p. 230;
John Weedon left his wife Anna a life estate and then remainder to Annas children and if no children, reversion to his grandchildren
(Henry, Sarah, Louise)contingent remainders b/c Anna might still have children.
Issue: Do contingent remainder have present property interest?
Dispute: if Anna sell off land b/c she needs money even though her grandchildren have future interest and desire to keep land for
future greater economic $$.
Options:
(1) Release: transaction of giving interest to another (can create fee simple absolute)
-put future and present possessory holdings together (yet question unascertained people);
(2) John could have given Anna right to sell property as long as corpus (principal) given to g-children after she dies but had to have set
up explicitly already;
(3) look at Johns intent (courts have to decide, looking at interest of all);
(4) cts look to see if its wasteful if we prevent sale. (Cts try to make best for all parties: partial sale of land and then use interest of
proceeds of land)
Cts look at best interest of all possessory interests; diff cts use diff stds of necessity
-court cant reject economic waste (not utilize full potential) for present possessory interest
legal boundaries of waste examples:
-future possessory interest expect land was it was given to present possessory interest
WASTE Examples:
1) Anna builds a gas station. (arguably an improvement)
Soln: Anna remove gas station (cost a lot) when future interest gets land. Yet cts take into acct her age. (present/future
possessory interest); permanent harm(?), (+) effect (? increased ppty value?)

13

2) Anna mines the minerals. (reduce disputes and non-renewable resources long-term)
Soln: if grantor had mines open, then A can mine but if A opens mine then cant mine reasonableness constraint (b/c
grantor had option to discuss mines if he knew about them by closing them off, etc. or else A might diminish future
possessory interest.)
-reduces disputes/concerns on non-renewable resources.
-Anna has incentive to mine hard-core for her life estate b/c short-term
3) Anna allows the farmland to be unkempt.
Depend on whether lower value of future interest and permanent damages, (potential ppty foreclosure govt usu
foreclose on only present possessory interest), id of ppty (nuisance, AP, liability)
4) Anna fails to maintain insurance on the house.
Life tenant under no duty to insure buildings on land. Yet cant injure ppty. (ODD)
Ct: violation of waste principle allows future possessory interest to get present possession.
Trend: before only land was included and now changing to include other ppty (structures); waste laws: made before
property included structure.
Legal duties: AP (monitor), no injurious activities
Trust better way to holding property
Trust (trustee): FSA (power of trustee who gives equitable division of interest for all parties trustee has fiduciary responsibility)
To trustee in trust for A during her life and then to my g-children from previous marriages.
*lenders dont like/uncomfortable property of trust
** trusts doesnt solve all problems but trustee responsible for working problems in trust
Mahrenholz v. County Board of School Trustee, AppCt of Il, 1981, p. 242;
Deed provided that this land to be used for school purpose only; otherwise to revert to Grantors herein.
Issue: FSD or FSSCS (possibility of reverter or right of re-entry for condition broken by future interest)
FSD: limited rights, right taken on outset (conditions), SoL AP clock starts running right away; once condition broken, then
can snap back happen right away (better for tenants encourage AP)
FSSCS: after giving you all rights, condition that may remove entire thing from you, right of
entry, SoL (AP) doesnt
start running until right of entry executed (better for owners)
Trend: collapse fee simple determinable and fee simple subject to condition subsequent into FSSCS?
(Bright Line Rule: land owners win; easier for courts/lawyers (consistency); clarity)
Act: right of reentry condition broken and possibilities of reverter are neither alienable or devisable [will] (yet inheritable via
intestate)) and cant give future interest by will or by inter vivos conveyanceis this act only in Illinois?
Question: Was possessor given something that was already limited or was there right that will allow someone to take all rights away.
Common law: What does it take to terminate your involvement with future possessory interest? How do you transfer it?
Ct: no specific language reqd when no ambiguity; use formal language to eliminate ambiguity
Creative aspect: can use lang to spell out condition; consequences of future and present possessory interest
PROBLEM:
p. 250
(2) O conveys Blackacre to A and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or
liquor is sold on the premises O retains a right to re-enter the premises. Subsequently A opens a restaurant on Blackacre that
serves several dishes cooked in wine or flamed in brandy and at Sunday brunch offers a complimentary glass of champagne. As
restaurant is successful, and 11 yrs after its opening, B wants to buy it and add a bar. Advise B.
Ans: uncertain if FSD or FSSCS
(a) If FSD and selling wine, beer, then A passed SoL, might have AP-ed it. Buy for lower price, by quiet title by tacking time w/
As time (or ask A to quiet title firstlegal research)
(b) If FSSCS and violating condition, then bigger problem b/c grantors can come back at anytime.
Therefore, B (buyer) wants FSD, and O (grantor) wants FSCSC. Much rides on type of will.
Factors to consider: Grantors intent, power of language itself indicating forfeiture, latitude of present interest v. protection
of future interest
Solns: B ask O to release future possessory interest (make into FSA)
Issues with granting land:
1) Legal implications: when AP SoL starts running
2) Transferability: of future interest (possibility of reversion and right of entry) and thru what means
3) Waste doctrine:
Life tenant: future interest holder can only object to present interests usage on certain grounds: that present interest is
destroying future ppty value. (Ct opinions vary)
eg. mining (if already opened, etc.),

14

eg. p. 250 (3) Can you drill oil if only for school purposes with future interests?
Courts view:
(1) Differentiate grantors desire to get ppty back (with life estate) with right of reversion
(2) Present trend to give reversion and right of entry increased ppty rights & power
Mountain Brow Lodge No. 82 v. Tosco, CtApp of CA, 1968, p. 251;
Previously: if conditions make land inalienable, then sever.
Now: look at how condition makes land alienable.
Cts: Invalid restraint on alienation doesnt necessarily affect/nullify the condition on land use. Yet with donations to organizations, cts
allow more use restrictions to encourage donations.
[Condition of habendum clause which prohibits appellant from selling or transferring the land under penalty of
forfeiture is an absolute restraint against alienation and is void.]
Different approaches to restraints on alienation and usage for land:
(1) If restraint makes alienates land and too restrictive, then present possessory can quiet title for FSA.
(2) If absolute restraint too inefficient then must try to turn it off, yet cant do so if absolute restraint implemented right after you get it.
(3) If conditions are spiteful, not okay (illegitimate in context of real ppty)
-generally: courts allow quirky conditions on land, but should have way to shut them off (b/c makes land too alienable).
Ink v. City of Canon
Fee simple determinable with possibility of reverter = fee simple absolute.
To the city so long as used for a park and if not property shall revert.
Issue: how do you divide up money from land that highway people paid?
Gee
Gor
|-----------------|---------------------|
f.s.d
poss of reverter
If received $100K, then should it be,
$100K gee (f.s.d.) = gor (poss of reverter)
$100K gor (poss of reverter) = gee (f.s.d.) yet poss of reverter value is very low, also have to figure out probability
of reverter (to see cost of gor (if public stops using it as a park)).
gee (public park, huge liability) + gor (poss. of reverter, more potential as FSA, but less possibility of happening) < $100K (FSA)?
Other basis to make decision of dividing land:
-Give back $ that grantee paid for land
-What every one intended: put money into trust (used for park purposes as well).
-b/c not enough money for replacement park
-Problem of FSA FSD = grantors money is that FSD = $0 for private purposes b/c too many restraints
-Whenever condition fails, grantor gets land (money)
-Govt take public lands (b/c then no owners, AP, etc), and if state values replacement park value, would solve problem.
Four approaches that court uses:
1) Have rule that says, grantor has it if violation of condition and grantor takes all
2) Rule that grantee takes all (justification: if grantee pays for the appreciation of land)
3) Division of $ (court chose this), historically, took while for poss of reverter to have rights.
4) Other courts: give all to grantee land, when grantee didnt break condition, then give this money later on to grantee, esp hard to
evaluate division, yet money still impressed with condition public park purposes.
Majority: give to grantee b/c grantee had no choice but to break the condition. (sell land to govt)
Minority: grantor gets all land proceeds (desire to incentivize)
Other: divide up land

Not responsible for defeasible life estate: p. 265-266, only whats on the paper.
Problem:
p. 266
To my wife, W, for her use and benefit, so long as she remains unmarried. He devises the residue of his ppty to his daughter, D, a
child by an earlier marriage. W does not remarry but moves into the apt of a male friend, A. W dies, and devises all ppty to
A. Who owns Blackacre?
Its a defeasible life estate (go to daughter) [conditional], for her use and benefit

15

Defeasible fee simple (not life estate), benefit = heir; use and benefit (can sell property) so fee simple, so long as FSD? But can
have life estate determinable
-presumption: hasnt used to language to specify estate, so assumption is FSD (largest estate possible). We dont even have
to talk about how living someone is relevant.
-daughter
-Can assume its Fee simple subject to condition subsequent if ambiguous btw FSD and FSSCS
-life estate for her use and benefit v. FSD cut shortwhat is it for the wife?
Fee tail: keep property in line of family (blood line), full uses of property (forces you to have children and to continue bloodline) but
cant sell it.
Options: fee tail FSA (to A and her heirs) or with contracts attached to ppty, just as (FSD, FSSCS FSSCS)

16

Chapter 4: Future Interests

A. Introduction
Inter vivo conveyance instead of will:
To A and As heirs If no future interest aside from this, then As heirs (which arent determined until after A dies) has no ppty
rights/entitlement
To A for life, then to As heirs As heirs arent living people (b/c until A dies, no heirs), yet heirs have contingent remainder in FSA.
-sometimes dont know who As heirs are at end of As life estate (life estate can end before death of A), then grantor holds
Blackacre until A dies and has heirs.
O: reversion in FSA subj to executory interest (until A dies, O holds ppty interest for As heirs)
As heirs: executory interest in Os reversion and contingent reversion (based on As death)
Death isnt considered a contingent event (reversion)
p. 271
(1) O owns a fee simple and makes the following transfers. In which cases is there a reversion?
(a) O conveys to A for life, then to B and her heirs
ans: O doesnt have reversion.
(b) O conveys to A for life, then to B and the heirs of her body.
ans: O has reversion
(c) O conveys to A for life, then to B and her heirs if B attains the age of 21 before A dies. At the time of the conveyance B is
15 yo. (If there is a reversion, what happens to it if B reaches 21 during As life?)
ans: O has reversion until B reaches 21 years of age.
(d) O conveys to A for 20 yrs.
ans: O has reversion
(2) O conveys Blackacre to A for life, then to B for life. O subsequently dies with a will devising all of Os property to C. Then A
dies and B dies. Who owns Blackacre?
ans. C
Contingent remainder: permits transferor to let future events determine who takes property upon the life tenants death
Vested remainder: transferor decides on outset who takes property upon the life tenants death
Remainder: (1) future interest that waits politely until the termination of the preceding possessory estate, at which time the remainder
moves into possession if it is then vested, (2) capable of becoming posessory at the termination of the prior estate
Executory interest: divest or cut short the preceding interest, future interest in a transferee that can take effect only by divesting
another interest
Diff btw remainder and executory interest: taking possession as soon as the prior estate ends and divesting the prior estate ; legal
consequences: tax purposes, conveyance.
Problem
p. 273
O conveys Blackacre to A for life, then to B if B gives A a proper funeral. Does B have a remainder or an executory interest? If it is
an executory interest, whose interest will be divested if B gives A a proper funeral?
Ans: Contingent remainder. Reversion in O and then B gets it after proper funeral.
Vested remainder if: (1) it is given to an ascertained person, (2) it is not subj to a condition precedent (other than the natural
termination of the preceding estates).
Indefeasibly vested: remainder is certain of becoming possessory in the future and cannot be divested. If vested remainder dies
before remainder vests, then heirs get it.
Vested subject to open/vested subject to partial divestment: if later-born children are entitled to share in the gift. to A for life,
then to As children and their heirs. If B is As child, t hen Bs exact share is unknown b/c A might have more children later on.
Vested remainder in a fee simple subject to divestment: to A for life, then to B and her heirs, but if B does not survive A to C and
his heirs. Depends solely on how conveyance is written. If conditional element incorp into description of, remainderman, then
remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. C =
condition precedent; B = condition subsequent
Contingent remainder if: (1) unascertained person, (2) contingent upon some event other than the natural termination of the preceding
estates (subject to condition precedent)

17

If first future interest is contingent remainder in fee simple, then 2nd future interest in a transferee will is also contingent
remainder.
If first future interest in transferee is vested remainder in fee simple, then 2nd future interest in a transferee will be a divesting
executory interest.
Example: to A for life, then to the heirs of B. B is alive and Bs heirs are unknown so Bs heirs is contingent remainder.
Problems
p. 275
(1) to A for life, and in the event of As death to B and her heirs. Is Bs remainder vested or contingent? If B subsequently conveys
her interest back to O, w hat does O have?
A = life estate
B = contingent remainder in fee simple absolute subject to executory interest (vested remainder)?
O = right of reversion in fee simple determinable
DOES B HAVE VESTED OR CONTINGENT REMAINDER? I THOUGHT IT WAS VESTED REMAINDER.
(2) to A for life, then to B for life, then to C and her heirs
A = life estate
B = vested remainder (future interest) in life estate
C = vested remainder in FSA
to A for life, then to B for life, then to C and her heirs if C survives A + B.
A = life estate
B = vested remainder in life estate
C = contingent remainder in FSA
O = reversion in fee simple (if life estates ends early or if C dies before A + B)
(3) to A + B for their joint lives, then to the survivor in fee simple (absolute).
Survivor = contingent remainder (survivor has contingent remainder):
condition preceding to surviving, on surviving the other party.
(4) to A for life, then to As children who shall reach 21. As oldest child is 17.
Right now, contingent remainder yet when B turns 21, itll be vested remainder subject to open/partial divestment.
to A, but if As children dont reach age of 21, then to D.
B at 17 yo = contingent remainder
D = contingent remainder
to As children, but if As children dont reach age of 21, then to D
Previously, if A dies and B isnt 21 yet, then under destructible doctrine (B loses remainder) and O has reversion in FSA
which furthers marketability.
Now, if As life estate ends before B turns 21 yo, O must keep it until condition met so that B gets ppty at age 21. Contingent
remainders arent destroyed if they arent vested by the time the life estate ends. No destructibility doctrine now.
to A for life, then to As children, but if none of As children reach age of 21, then to TB.
B at 17 yo = vested remainder subject to divestment (in FS subj to divestment in executory interest)
-If A has no children = contingent remainder
As children = vested remainder subj to open (subj to executory interest = TB)
-If A dies before B turns 21 yo, then it goes to B until we realize that B wont be 21 yo, b/c B is vested.
Trend: if ambiguous, construe in favor of vested remainder
Difference btw vested and contingent remainder:
(1) vested remainder accelerates into possession (either at end of life tenants death or when life estate ends before life tenants
death); contingent remainder cant be possessory so long as it remains contingent.
(2) Contingent remainder: is not assignable during remaindermans life unreachable by creditors, Yet today, look as ppty
interests (transferable during life and reachable by creditors)
(3) Common law contingent remainders are destroyed if they dont vest upon termination of the preceding life estate, whereas
vested remainders were not destructible in this manner
(4) Contingent remainders are subj to RAP, whereas vested remainders are not.
(5) Some states, CR cant sue for waste, partition, trust accounting
Executory interest:

18

Future interest in a transferee that must, in order to become possessory,

(1) divest or cut short some interest in another transferee (shifting executory interest)
(2) divest the transferor in the future (known as springing executory interest)
fee simple subject to an executory limitation: fee simple that upon the happening of a stated event, is automatically divested by an
executory interest in a transferee (either in possession or in remainder)
-usually treated as contingent interest b/c subj to condition precedent and do not vest until they become possessory
Example 15. to A for life, then to B and her heirs, but if B dies under the age of 21, to C and her heirs. B = 15 yo. B has
vested remainder subj to EI (or subj to divestment by Cs executory interest if B dies under age 21).
Problems
p. 285
(1) O wants you to draft something where convey Blackacre to his son A for life, and upon As death O wants Blackacre to go to As
children if any are alive or, if none are then alive, to Os daughter B. Consider the following conveyance, all carrying out Os
intent but each creating diff future interests.
(a) to A for life, then to As children and their heirs, but if at As death he is not survived by any children, then to B and her
heirs. At time of conveyance, A is alive and w/o children.
A = life estate
As children + heirs = (if children) vested remainder subject to open in fee simple subject to executory limitation
(defeasible)
= (if A is alive & no children: contingent remainder in fee simple subject to executory limitation (defeasible)
B + heirs = contingent remainder (contingent upon if As children die before As death) with executory interest
If C + D (twins) are born to A
As children = vested remainder subj to open in fee simple subject to executory limitation (divesting condition: C +
D + other children die before As death)
If C dies and A survived by B + D
D = FSA
B = doesnt get anything.
Cs heirs = get FSA as well (share with D b/c since divesting condition wasnt met, vested remainder stays with C
even tho C died b/c D survived)
If at As death, he is not survived by any children, then to B + her heirs.
(b) to A for life, then to such As children as survive him, but if none of As children survives him, to B and her heirs.
A = life estate
As children = contingent remainder in FSA subject to executory limitation (for divestment in EI, all have to die
before A)
B + heirs = contingent remainder.
O = reversion if have to wait for condition to vest (if O is not grantor and is 3rd party, then its EI)
If contingent remainder, its followed by contingent remainder.
As soon as one of As children survived A, then its vested, but if none of As children survives him, it goes to B + heirs.
Example: to A for life, then to B if B graduates for UCLA law school.
A = life estate
B = contingent remainder
O = reversion
Example: to A for life, then to B if B graduates for UCLA law school, but if B doesnt graduate from UCLA law school, then
to C.
B = contingent remainder
O = reversion holding as fee simple subject to executory interest
C = contingent remainder
(c) to A for life, then to such of As children as survive him, but if none survive, then to B + her heirs. A is alive and with 2
children C and D.
A = life estate
As children = contingent remainder in FSA (true even though C + D are alive) (b/c its contingent depending on
whether As children survive A if As life estate ends before As death)
B = contingent remainder in a FSA
O = reversion in fee simple subject to executory interest
As children = executory interest
B = executory interest

19

Example: to A for life, then to B + her heirs, but if A is survived at his death by any children, then to such surviving
children.
A = life estate
B = vested remainder in fee simple subject to executory interest (defeasible fee, executory interest holder (b/c not
grantor))
As children surviving at As death = executory interest in FSA
(2) Serious drafting flaw if grantor wanted something different from what actually happened.
to son A for life, then to As children, and if A dies w/o surviving children to my daughter B and her heirs. A has child C, C has child
D. C dies. A dies survived by grandchild D and his sister B. Who takes land?
A = life estate
As children surviving at As death = contingent remainder in FSA
B + heirs = contingent remainder
Does grandchild count as surviving children?
*Expectation: childs share goes to his/her children by right of representation issue
(3) T devises $10K to my cousin Don Little, if and when he survives his wife
Don Little = vested remainder in fee simple subject to executory interest
T = still has present possessory interest (enforceable commitment), holding money subject to someone elses interest
(not a future interest held by grantor), fee simple subject to executory interest (b/c youre holding something for
someone else its springing to grantor)
Trust: flexible form of ppty mgmt;
Trustee: legal ownership of personal ppty, with legal fee simple in land; yet with beneficiaries (equitable owners of the same
ppty at the same time); subj to orders of an equity court, which enforces the trustees duties to the beneficiaries; administer trust
solely in interest of beneficiaries
Swanson v. Swanson, SCt of Georgia, 1999, p. 288;
Bennies Swansons remainder interest vested before his death and conditions subsequent contained in trust provisions did not occur
before the life beneficiary of the trusts died, Bennies vested remainder was not defeased and instead passed according to the terms of
his will.
-if vested remainder is not divested, then it is inherited.
-ambiguous if meant, child being alive when George died or when Gertrude died.
Bennies vested remainder can only be defeasible if B dies before Gertrude and he has children. (no conditions for defeasance)
Ct: Strong preference to look at conditions of subsequent, so look at surviving as condition precedent.
Executory interest: if person aside from grantor has future interest, used in FSD (b/c automatically reverting), divesting a vested
interest. Taking away something thats already given to someone.
Life estates have future interest in either (1) grantor (reversion), or (2) remainder (2-3 classes)
Example: to A for life, then to As children
Needed info: if A has any children (b/c then shut off rules apply differently)
Cant assume anything (like young so will probably have children).
A = life estate
As children = contingent remainder for FSA
O = reversion if life estate ends before contingent is resolved.
Logically easier if CR ends when life estates ends, yet not good for CR
CR remains and O has reversion in fee simple subject to executory limitations (gives back to As heirs if condition
met A has children)
As children (when life estate ends before As life) = executory interest in fee simple absolute (in relation to Os reversion)
=contingent remainder to As life estate. A life estate can end before the life of A
Doctrine of destructibility of contingent remainder: prev, CR would end if not met by end of life estate, but now its a
different policy. Now O has reversion until contingent remainder conditions met.
As children = when becomes vested, gets land,
use vested subject to open when talking about future interest and
use vested subject to partial divestment when diluting/losing property interest.
Note: If B (As child) sells property interest to buyer, then buyer is subject to dilution as well b/c buyer only buys Bs ppty
interest, no more.

20

Example: to A for life and then to As child B.

A = life estate
B = absolutely vested remainder in FSA.
If want As other children to share, can supplement conveyance w/ contract with B
Example: to A for life and then to As child B but if B doesnt have children then to D.
A = life estate
B = vested remainder in FSA subject to executory interest subject to defeasance
D = contingent remainder in FSSEI in FSA (executory interest b/c divests vested interest)
Once B gets children = vested remainder in FSA (can no longer be taken away from B).
Then D has no interest.
-doesnt mattere if child survives as long as B had a child.
-Need survival language to make it clear or else assume, had children
Example: to A for life, then to As child, B, but if ., then to D.
Rules in future possession:
(1) Executory interest: follow vested interests
(2) Contingent remainder: will follow contingent remainder
(3) Vested remainder: follow executory interest (divest)
Example: to A for life, then if B doesnt have children, then to D.
B & D = both have contingent remainder.
Problem
p. 293
(3) Could Bennie have adopt Peggy (his wife) as his child? (If it was required that he have children to get his share of the trust?)
Probably not b/c: (1) Grantors intent; (2) Intent of statute (Judges slap on conditions with adult adoption)
(4) In trust, for my son A for life, then to As children + heirs. At time of Ts death, A has one child (B), then C is born to A. B dies
and leaves husband D + child E, all Bs ppty to D, then A dies, survived by C, D, E. Who owns the trust ppty?
A = life estate
As children = (conveyance at death, B = vested remainder subject to open), then when C is born (vested remainder subject to
open as well).
C = vested remainder subject to open
D (Bs husband) = gets Bs interest b/c its a vested remainder.
D gets over E b/c:
(1) heirs = identifies who takes, instead of what estate it is means its FSA;
(2) once C gets a vested remainder, then only dilution can effect it (subj to open) but vested remainder isnt divested by
anything. Therefore, she can chose where her vested remainder interest goes to
E (Bs child) = gets nothing

Doctrine of destructibility:
Contingent remainder destroyed if not vested by end of life estate (which end either artificially or naturally).
Executory interest may be applicable under RAP as well.
-Better for O so that O doesnt have to hold FSSEI for someone else.
Two step process to avoid rule of perpetuities:
(1) Move towards transferability of possibility of reverter, right of entry (b/c they arent subject to rules of perpetuities, yet executory
interest is).
Example: Set up for Lydia with possibility of reverter and then later, in 2nd transaction, Lydia conveys possibility of reverter
to someone else in order to get around rules that apply to executory interest. (moving away from that idea, so we can avoid
rule of perpetuities).
Exception: With charitable donations, another charitable organization can assess whether one organization is keeping
conditions. When present possessory and future interest holder are charities, then rules of perpetuities doesnt apply.
Example: To Umi (wife) for life, and then to K if K learns to speak Japanese by the age of 25, if not, then to the Buddhist
Association of LA.
Hard if give land away during life, yet sometimes better to incentive. (Husband gave inter vivos).
Umi = life estate
K (age 12) = contingent remainder based on learning Jap before 25 in FSA at end of Umis life estate
(if life estate ends and vested remainder, then it speeds up into vested remainder, rather than being reverted)
Buddhist Temple = contingent remainder in FSA

21

O = reversion subject to executory interest

*If K is contingent remainder and life estate ends before K is 25: (w/o doctrine of destructibility)
O = reversion in O would be reversion subject to executory interest.
K & Buddhist Tempe = both holding executory interest
Buddhist Association of LA = contingent remainder if K is contingent remainder.
= nothing if K is vested remainder.
*If K learns enough Japanese at age 20 to qualify.
Umi = life estate
K = vested remainder in FSA
Buddhist Association of LA = has nothing b/c condition met
*Umi dies when K is 19 and he doesnt know enough Japanese. (w/ doctrine of destructibility)
Umi = life estate ends.
K = nothing if doctrine of destructibility
Doctrine of Destructibility: Grantors intent to have K learn Japanese by 25 yo, yet historically, had doctrine of destructible,
where if Umis life estate ends before K has vested remainder, then FSA would revert back to O.
Problems
p. 296
(1) to A for life, then in fee simple to Bs children who survive B (with doctrine of destructibility)
(a) B dies during As lifetime, leaving children; then A dies.
A = life estate
Bs children = FSA after As life estate ends
(b) A dies during Bs lifetime; B has children at As death.
O = FSA (b/c condition not met by end of As life estate B has to die before A to have condition met)
(c) A dies during Bs lifetime; B has no children at As death.
O = FSA
(d) While A and B are alive, A conveys life estate to B.
B = life estate based on As life (per autra vie)
Bs children = contingent remainder in FSA
O = reversion in FSA (in doctrine of destructibility)
O = bound if CR isnt vested so might have to hold future interest for long period of time with no
incentive
Abolition of Destructibility Doctrine
(1) people used executory interest instead of contingent remainders
(2) future interest created in trusts
(3) trend: today future interests are more equitable rather than legal
Problems
p. 298
Jurisdiction which destructibility rule has been abolished by statute.
O conveys Blackacre to A for life, then to such of As children as attain the age of 21.
(a) A dies w/ 2 children: C (age 8) and D (age 4). Now that life estate is gone, what is state of title?
O = fee simple subject to executory interest.
C + D = executory interest (no executory interest subject to interest)
When C reaches 21 will he take any interest in Blackacre?
C = gets fee simple subject to dilution (b/c D might come in)
(b) during As life, child C reaches 21, then dies. Then A dies, survived by child D, age 17. State of title?
Any condition thats divesting: such as C being alive?
C = vested remainder subject to open before A died
O = reversion in FSSEI
Once A dies, C = fee simple subject to dilution. (FSSEI); O is out of picture.
D = given chance to reach 21. D = executory interest
Vested: locked in legal interest, even if not in possession.

Rule against Perpetuities

No (future) interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the
interest.
-Only future interests vests.
-Prevents contingent interests that might vest too remotely

22

-Must prove that CR is certain to vest or terminate no later than 21 yrs after the death of some person alive at the creation of
the interest, if not, then its void at outset
-Validating/measuring life: person who will enable you to prove that CR will vest or fail w/in the life of, or at death of,
person or w/in 21 yrs after death of person;
-must be alive at time of conveyance;
-must be persons affecting vesting of the interest but dont have to be mentioned in instrument.
-might not be the same for each future interest
-look for some life not stipulated in document that affects vesting... relevant to conveyance.
-some life in being = its when conveyance occurs (usually death of person) some life that was being at creation of
each of future interests.
-Applies to: (1) executory interest, (2) doesnt apply to vested remainder unless they are subject to open, (3) contingent
remainder; not right of entry and possibility of reverter b/c it was from grantor
-if not valid, then striken (of future interest) from conveyance (read it w/o the phrase in it);
-apply the condition in sequence
Reasons for Rule Against Perpetuitity
(1) prevent interests from hanging over too long
(2) vested relation to contingent remainder
-under rule of perpetuities (vests w/in allowable time)
-executory interest (vests legally as in possession)
(3) remainder: ascertained people, condition precedent
We have to know that future interest will be vested w/in certain period of time at the time the will is created.
Application of rule
(1) Look at future interest
(2) Go back within future interest bracket to see if there is a life that you can use to validate it or not to. [legal definition]
(3) Vested: ascertained person (affect vesting) and no condition precedent of taken.
(4) No condition that has to be met before vested person gets possession.
-Vesting in possession is something differently
-will prevent future interest to continue forever contingent remainder.
(5) Think of scenarios for RAP - anticipate certain illogical scenarios
Problems
p. 304
(1) to A for life, then to B if B attains the age of 30. B is 2 yo now.
B = validating life b/c when B dies, know whether hell be 30 w/in 21 yrs of his death.
(2) to A for life, then to As children for their lives, then to B if B is then alive, and if B is not then alive, to Bs heirs.
A = life estate (life in being)
As children = A is validating life b/c know by As life if A has children
= future interest in life estate (we dont know if A has children)
Either contingent remainder in LE (if no children) or vested remainder subj to open in LE
B = (when B is then alive) is then alive refers to conveyance. Condition met at end of
preceding life estate, will
we know 21 years after the death of the life of the validating interest HAS TO BE CROSSED OFF
-will there be ascertained people in being? Well know 21 years after As childrens lives but right now, As
children are no ascertained right now b/c class is still open.
In order to validating life, have to be alive at creation of interest, so As children cant be validating interest, so cant
use As children as a validating class b/c contaminated by afterborns (maybe live past overborn children)
-afterborn born after creation of interest, conveyance cant be validating life, even if they survive the most
so we cant stay in clause have to ascertain who taker is, so go back to A if well know 21 yrs after As death, that
its As children.
then to Bs heirs who are then living.
Bs heirs = B is validating life. In order to be heirs, dont you have to be living?
Example: To A for life, then to Bs children for life.
Validating life (effects vesting): B
2 conditions that lead us to vested-ness:
1) Ascertained takers
2) No condition precedent to taking, except someones death in life estate

23

Rules to look at RAP:

1) stay within clause of future interest to see if you can find ascertained person and condition determined w/in that persons life.
2) Have to know for sure that condition will be met w/in 21 yrs of death in being. Dont have to know for sure that the
condition will happen, just that well know 21 yrs after validing life if it has happened.
3) Can have finite universe of people (eg. those who got license before January 2003) to be ascertained takers (even if we
dont have name on them)
4) Look for invalidating life as oppose to validating life to see if something is okay under RAP. (look for disaster)
Example: child that is born after the fact.
Example: for A for life, then to As first child to reach 25. A has child who is 2 yo when she dies or at end of As life estate.
Uncertain that 21 yrs after her death whether child will reach 25 yo.
Example: to B if B graduates from college
B = ascertained and condition determined w/in Bs life
Example: to my son Kenji if he learns how to speak Japanese before 25
K = will know if condition met 21 yrs after Ks death
Example: to Louise to rebuild restaurant if WTC is rebuilt
Need validating life to see if ascertained taker and condition is met.
If its to Louise + heirs, then can hang over forever, so have to look for validating life (can look outside clause, eg. city board
member have to find someone who effects vesting.)
Problem
p. 304
(3) O, a teacher, declares trust $1,000 for all members of my present property class who are admitted to the bar.
All students in property class are their own validating life (for their interest in the trust). Takers are ascertained.
For the first child of A, who is admitted to the bar.
O = FSA (b/c conveyance is void b/c of rules of perpetuities).
-Uncertain if As child will be admitted to the bar w/in 21 yrs of As death b/c might take a long time and As child may be an
afterborn child after the conveyance occurred. Its invalid b/c its too remote.
Example: to the School Board so long as used for a school, then to A and her heirs.
cross out then to A and her heirs, so that O has a possibility of reverter and As executory interest is removed
Example: to the School Board, but if it ceases to use Blackacre for school purposes to A and her heirs
strike out all As executory interest and leave FSA to School Board; b/c condition is included
Biggest Unfairness in RAP:
-stepping outside normal expectations and normal expectations not taken into account unless you explicitly state it. (eg. 70 yo legally
having child)
-applies to personal ppty and land ppty
Ways to get around it:
1) possibility of reverter and right of entry are exempt from RAP (in FSD or FSSCS)
2) Two step process, with FSD/FSSCS and then executory interest to 3rd party
3) Contract with stipulations to give FSA, yet if shit happens, cant get ppty back but only $ damages
Common law rule: right of entry and possibility of reverter, previously couldnt be transferred to 3rd party, yet now some jurisdictions
allow it (make sure jurisdiction is okay).
Jee v. Audley, Court of Chancery, 1787, p. 306;
to Ts wife for life, w/ remainder unto my niece Mary Hall + the issue of her body and in default of such issue to the daughters
then living of J+E Jee.
Ts wife = life estate
Mary Hall = FSSEI (?)
Daughters of J+E Jee = afterborn daughter might invalidate clause; voided out b/c RAP
Afterborn daughter might invalid clause:
-need to clarify with, Daughters living at time of will and then living at time of will
-cant use daughters as validating lives b/c unclosed class
Issue of Mary Halls body:
-cant use Mary Hall as validating life b/c interest taker is Mary Hall + issue.

24

Invalidating situation: Mary Hall can have afterborn and then could live much longer then death in being. Then if
you had afterborn daughter of J+E Jee that survives, then this doesnt work invalid b/c no validating life is alive during
time of conveyance.
Wait-and-see test = waiting to see if conditions arent met, as oppose to the RAP where they knock interests right when you
write will (so you know what you have already); weakness of Wait-and-see test is strength of RAP;
RAP = no interested in grantors intent (eg. Jesse Lide case would be easy to interpret)
Construction test = Can change words in will to protect/in accordance of testators intent to avoid RAPs knocking out of
parts of will
Note: if whole class doesnt close then existing members of class are closed out
Problems
p. 312-313
1. to A for life, then to As children who reach 25. A has a child, B, age 26, living at the time of the conveyance. Is the remainder
valid?
A = life estate
B = vested remainder
Ans: The entire remainder is void b/c the class has to be closed by 21 yrs after someones death, even if there are vested
remainders subject to open or dilution.
Note: if whole class doesnt close then existing members of class are closed out
Example: to A for life, then to As first children who reach 25. A has a child, B, age 26, living at the time of the conveyance.
Ans: Then it would be okay, b/c B already vested.
Example: to A for life, then to As children who reach 21. A has a child, B, age 26, living at the time of the conveyance. Is the
remainder valid?
Ans: Valid b/c then all children will be known to be 21, 21 yrs after As death.
2. [to A for life], [then As widow, if any, for life,] [then to As issue then living.] Is the gift to As issue valid?
A = life estate
As widow = will be known when As life ends; contingent remainder; A = validating life in this case, (b/c unascertained person
b/c you dont know if As current wife is his widow)
As issue then living = uncertain if then living so void, b/c As widow is unascertained.
Note: would have worked if As widow was named, so can use her as validating life.
3. T devises property to A for life, and on As death to As children for their lives, and upon the death of A and As children, to [the
person inserted in the brackets].
A = life estate
As children = life estate
[ ] = FSA
A and B both survive T. (Can have children b/c they are alive)
(a) [B if A dies childless]
valid; A = validating life
(b) [B if A has no grandchildren then living]
void; goes to condition preceding; As children arent validating lives b/c class is open so we wouldnt know if A has any
grandchildren. Additionally, we dont know if they are living at the time b/c we havent identified that person.
(c) [Bs children]
B = validating life if B is alive then. Okay b/c we can close out class of Bs children when B dies.
(d) [Bs children then living]
B = validating life but void since we dont know who will be living. We wont know w/in 21 yrs of Bs death if Bs children will
survive As children.
(e) [As grandchildren]
invalid; goes to ascertained life; we dont know who As children are yet (b/c its an open class- afterborn)
(f) [Ts grandchildren]
Only valid if we know Ts children and its a closed class.
Example: To my grandchildren who reach the age of 21. (in will)
Valid b/c use closed class of children, so then w/in 21 yrs of death of children, we will know which grandchildren will have
reached age of 21. ascertainment = Os grandchildren.

25

Example: To my grandchildren when they reach the age of 21. (inter vivos)
Invalid b/c it doesnt children isnt closed class so no validating life. Solution: name children in whose grandchildren are
applicable.

26

Chapter 5: Co-ownership and Marital Interests

Co-owners: concurrent owners of present or future possession; study rltship btw co-owners (+ creditors, govt, & neighbors)
Forms of Co-ownership (Order of most constrictive form least constrictive form)
1. Tenancy by Entirety
2. Community Property (dont really discuss)
3. Coparity (dont discuss)
4. Joint Tenancy
5. Tenancy in Common
Problems btw co-owners:
1) How easily can my co-owner get out of deal? (for suitability of marketability)
2) Relationship of our co-owner to creditors (bankruptcy, judgment from equity of property, use ppty as collateral to secure
loan)
3) Improvement (decisions, payments - mgmt responsibility)
4) Rent (co-owner wants to rent to someone you dont like)
5) Circumstances (unwanted guests, changes locks (doesnt allow you to go into house) will person be able to AP if you
dont do anything?)
6) Co-owner dies (what happens then)
7) Your own interest at your death (inheritance)
8) What if you get land with unequal amts of money (adverse if unequal shares)? (should you divide equally or by amt you
put into land?)
Reasons for co-ownership
Give greater access to ownership to people from our property
1) American dream when people jointly own property,
2) re-enforces our values, and
3) willing to pay price.
Note: pull towards sole ownership
English common law: dislike dividing land into smaller parcels so favor JT over T in C.
US common law: favor T in C instead of JT, JT has to be explicitly stated.
Co-ownership Issues to think about:
1) What constitutes an action sufficient to lose a right of survivorship (of joint tenancy)? <severance>
2) Whether bank accounts held the same way (rules/personal property side/real property side) as joint tenants.
3) Counting on continued participating in co-ownership (partition, ending partnership)?
-pretty easyabsolute right at court (burden of other side wanting to keep joint tenancy, co-tenancy to prove that restraints on
partition is better)
4) When can tenants get rent from one another (ouster) (right to get rent, maintenance)?
5) Same partition, rent, management issues
6) Rent: one possibility: absent of ouster, cant get rent (next question: what do you have to do to prove ouster? What is proving
ouster? What is your standard for keeping your property (ouster/AP)?)
-low standard of ouster (probably entitled to rent)
-if standard of ouster high, probably not entitled to rent
-or pay rent to out-of-possession tenant
Forms of Co-ownership
Tenancy by Entirety
Characteristic
s

-Only death or divorce

gets you out of it (into
tenancy in common)
-most restrictive
-4 unities of joint
tenancy + unity of
marriage
-cant defeat this by

Community
Property
Restricts property

27

Joint Tenancy

Tenancy in Common

-right of survivorship
-joint tenants seen as
single owner (each has
whole share)
-when one joint tenant
dies, passes nothing to
other jt b/c already have
all

-separate but undivided

interest
-descendible interests (no
right of survivorship)
-each tenant owns
undivided share of whole
(unity of possession
only unity that TC has)

conveying to someone
else (can only convey
something together)
Limitations

Only for married

people (except in
Hawaii)
-in less than half the
states

Benefits

-unavailable for
creditors

-had to be seised together

as one owner at same time
and keep 4 unities. (time,
title, interest, possession)
Only for married
people (Span law:
valued marital
rltship so protected
them), Women
previously not
allowed to have
power of commun
ppty, only since
75
Tax benefits

-ability to hold unequal

shares

-joint tenancy can break jt

by destroying unity

Right of survivorship

Ability to hold unequal

shares

Four Unities: (essential to joint tenancy)

(1) time (interests must be acquired or vested at same time)
(2) must acquire title by same instrument or by joint AP (never can arise by intestate succession or other act of law)
(3) al must have equal undivided shares and identical interests measured by duration.
(4) Each mmust has right to possession of whole (after JT is created, however, 1 JT can voluntarily give exclusive possession to
other JT)
Common law: if 4 unities arent met, then JT is actually Tenancy in Common. (either at conveyance or later on)
Ways of doing this: mutual agreement destroying one unity, 1JT by conveying interest to 3rd party
Judicial partition: cts can either physically partition tract into separately owned parts or order land sold and proceeds divided.
(available for both JT and T in C)
Different between joint tenancy and tenancy in common:
1. right of survivorship
2. ability to hold in unequal shares
3. creation of interest (JT must be done at same time)
4. severance (?)
Note: no diff in possessory interests for JT or T in C
Ct Requirements for creating certain kind of concurrent interest:
1) Some jurisd require explicitly joint tenancy as oppose to joint b/c its colloquial term and want to make sure that its
knowing participation. Default = T in C.
Acceptable: To A + B as joint tenants and not as tenants in common
Questionable: to A + B jointly
2) Some jurisd require express provision for survivorship to create JT
Acceptable: To A + B as joint tenants with the right of survivorship.
3) Some states done away from JTs
4) Common law presumption: husband + wife want to create tenancy by entirety, absent some clear indication to the contrary.
Problems, p. 342
1. O conveys Blackacre to A, B, and C as joint tenants. Subsequently A conveys his interest to D.
Ans + hypos:
1) D has a T in C with (B + C who still have JT). B + C still immune to creditors and right of survivorship (b/c A acted
unilaterally, so why should B + C suffer)
2) Justification that B + C still have JT as oppose to T in C:
-fewer tenants in long-run
-didnt do act yourself so why should interest be taken from you (A acted unilaterally)
3) Arg for notice (that you cant severe w/o notice):
a) Tenancy of entirety: cant severe unilaterally
b) Tenancy in common: can have unequal shares and cross wills to have portion to go to survivor (yet no certainty that itll
always be this way)
c) Joint tenancy: need equal shares (presumption of equal shares unless proved otherwise)

28

-CA + other states = if can prove how much you put in ($) (your burden to prove), then can proportion property when
you sell it (presumption of shares)
Then B dies intestate, leaving H as his heir.
Ans. + hypos:
Ans. C + D then become T in C.
Additional info: if C + D want to be JT, have to use straw person, X. C + D both convey to X, who then conveys to C + D with
all 4 unities intacted (so get right of survivorship)
Difficulties: (1) creates vulnerability and (2) costly transaction
Probate: JT popular b/c similar to will (with right of survivorship). JT avoids Probate: judicial supervision of administration of
decedents property that passes to others at decedents death costly with administrators, lawyer, and court costs (b/c no interest
passes at death of joint tenant)
-JT cant pass interest in will b/c JTs interest ceases at death (important consequence to creditors)
Creditors: must act w/in JTs life to get JTs interest in ppty or else its gone at JTs death
Taxation: even though nothing passes, still get federal estate taxation.
Unequal shares: JT: have to have equal shares, justified by historical grounds and makes no sense today. Increasingly ignored in
cts.
Options: (1) if JTs yet A pays 1/3 and B pays 2/3, then when selling it, divide it 1/3 and 2/3. (cts divide proceeds according
to their intent, yet also look at close rltship of JTs to see what intent might have been); (2) dont pay attention to
requirements of unity (eg. joint and survivor bank accts owned by parties during life in proportion to the net contributions by
each.
-presumption of equal shares rebuttable by evidence of contrary intent
2. Severance of Joint Tenancies
Reiss v. Reiss, CA CtApp, p. 348;
Creative method of terminating JT w/o strawman:
(1) To destroy incident of survivorship, transfer legal title to son, as trustee of trust for her use and benefit; son promises to reconvey
the ppty to his mother
Ct: upheld b/c desire of W to terminate JT; little value of cumbersome feudal law requirements
Common sense and legal efficiency: JT should be able to accomplish directly what she could otherwise achieve indirectly by use
of elaborate legal fictions
(2) One JTs execution of a Declaration of Election to Sever Survivorship of Joint Tenancy
Note: do you have to give notice to the other joint tenant?
Note: How much do you have to pay lawyers to be strawmen for you in conveyance?

Issues for Joint Tenancy + Tenancy in Common:

1) Right of survivorship
If A, B, C have JT, and A conveys to D w/o telling B + C, then D will have T in C with (B + C who still have JT)
-right of survivorship more easily retained and want to make it harder to lose right of survivorship.
(eg. cant convey A A, must have straw (expensive) with lawyer straw or trustee (yet risky b/c they only have
fiduciary duties to convey back to you)
-benefit of JT with right of survivorship instead of T in C with cross wills: avoid probate (costly)
2) Unequal shares
A + B inherit ppty as T in C. If A + B want to be joint tenants, can have B convey all interest to A, and then A conveyed
to both A + B as JT, or just as B as her JT (allowed under CA law: moved away from common law rule that you need
straw).
Issue: can you have both JT and T in C for same ppty?
Cts ans: Okay, b/c cts want to keep land together, yet conceptually, its a push not to have to the divide land.
For all co-ownership: everyone has full access to land yet can have different shares (unequal shares of land); JT: allowed to
rebut equal shares (which is presumption); T in C: dont have that presumption of equal shares
3) Creation/severance
Severance of JT:
(1) difficulty, (2) have to be with 3rd party, (3) secrecy
Common law for secrecy: acceptable to sever to 3rd party w/o notice can use straw
Other law: some jurisd has convey to yourself + notice to other JT (CA: reqd recordation constructive notice) b/c then
irrevocable recording

29

Different options:
(1) no notice (common law)
(2) constructive notice (CA)
(3) actual notice: for non-issues
Issues to think about: fairness (if secrecy w/o notice, then if other JT dies first, get entire ppty yet if you die first, then it has
become TinC.)
JT: both vested in all land,
TinC: equal share possessory interest in whole ppty (every piece of land is owned in
Tenancy in Entirety: married couple

proportionate to contribution)

Reasons for STRAW/Reasons against SELF-CONVEYANCE:

1) create notice (evidence of previous intent), as oppose to surreptitiously having severance
2) ungainly to hand yourself a clod of dirt (feudal heritage)
3) reliance interest: people would have had to use the straw
4) Protect other JT
5) Record
Reasons against STRAW/Reasons for SELF-CONVEYANCE:
1) remove malpractice traps
2) no high costs - with use of elaborate legal fictions
3) no reason to continue something that was set in place at time of Henry IV.
4) Creates no new power in JT
5) Intent is the same and we care mostly about intent, not how they are doing it
Severance of joint tenancy
Issue: Notice, unilaterally severance, irrevocability
1) (Voluntary) conveyance to 3rd party w/o notice (singularly) common law
2) Straw convey to 3rd party and then have it conveyed back to you (costly, risky)
3) Creditors reach creditors unable to get if you die b/c then the other JT has it.
a) foreclosure put lien on property and then go thru proceedings
4) Partition action by court (straw = court)
5) Conveyance to self (not common law), (added in CA law); some juris require that if you convey to yourself, you give notice to
other JT (record constructive notice) to make it irrevocable for yourself
a) no notice no recording or anything
b) constructive notice record it so they can find out if they want to
c) actual notice tell them
-some juris require notice (usually legis adds this requirement for self-conveyance), requires notice with embedded penalties
(record before death, notarize 3 days before death)
6) Die before other JT
7) Involuntary
General Rule: unilateral severance okay (w/o intermediary device); sometimes require recordation; yet common law doesnt allow for
it.
Mechanism of severance:
Burke v. Stevens, p. 348; used attorney as straw to sever JT (unethical yet legally permissible)
Reasons for notice: JT has right to know to prepare
Reasons for no notice: (1) desire things to go towards TinC; (2) more litigation; (3) domestic abuse (feminists argue)
CA law: reqs recordation b/c so cant wait to see what happens (if JT dies before you) irrevocability
Reiss v. Reiss, p. 348; son as trustee of trust for her use (ct upheld)
Riddle case, p. 345;
Attorney made legal doc where Riddle conveyed to her JT interest to herself in a TinC and then disposed of her interest in a will after
she died. Ct allowed.
Issue: conveyance to oneself might count as severance of unity principle depending on jurisd (might keep common law rule no
severance, req straw), intention *
Lease:
Common law: break in unity in common law; yet intention might differ (can go in either direction)
JOINT TENANCY:

30

Main concern: harmony of all rights together

Opposing Trend: easier to sever joint tenancy
Simulaneous deaths of JTs: divide property equally as if both had been the survivors.
-if any signs that A or B are alive, then that person (A or B) gets right of survivorship.
(eg. if Bs leg uncrossed during death, Bs head spurting blood from decapitation)
Murder by one JT of another JT: severs JT and turns it into TinC
Options for right of absolute right of survivorship (as oppose to JT where it might be severed), p. 342:
1) Joint LE with contingent remainder in FS to survivor
2) TinC in fee simple with executory interest in survivor
to A and B until one dies (then all property to survivor)
3) Fee simple with EI of A and B (present possessory interest doesnt have to be A or B)
to A if A outlives B, to B if B outlives A
See if future interest gives you something that JT doesnt give you
TENANCY BY ENTIRETY:
-not allowed in all jurisd
HARMS v. SPRAGUE, p. 350;
JT1 signs loan with lien on his JT interest in ppty yet before mortage is paid and lien is still on, JT1 dies. Creditor seeks to get money
from Blackacre itself.
1) Title theory state (minority): If get mortgage by JT of his interest in ppty, then turn JT into TinC depending:
Two consequences depending on jurisd:
a) all is lost JT: severed when you put up your ppty for mortgage
b) temporary: when debt paid then still have joint tenancy (clean up method)
2) Lien theory (majority): creditors only have claim to JTs interest if default during his life time (this is when land is reachable)
(risk for creditors)
-Legislature: want surviving JT to have entire ppty w/ encumberance (unity) b/c want to protect creditor + keep right of
survivorship; question about creditors + risk
Issues: consequences/intention of parties
1) Should lender bearing risk (of possibility that JT die before mortgage paid)?
-unfair for lenders to take risk b/c dont know about JT (doesnt protect small creditors, encourages large creditors
who would know about this situation); Cts want to encourage small lenders, yet big lenders also push to have
surviving JTs have right of survivorship w/ encumberance
2) Joint tenants:
-Should joint tenant take on encumbrances if dont know about loan encumbrance? (usually joint tenants are btw
spouses, and only major assets they have, then spouses are hurt by this)
3) Who will get hurt: JTs or creditors?
Hypo: If JT with mortgage gets entire ppty with right of survivorship, can creditor go for entire land?
-Lenders prob go for what loan is worth. Go for beyond 50% if falling land values (under-secured); most jurid allow 100%
securing (creditors can reach all ppty)
Two possible severing events:
-Convey to yourself (becomes TinC) allowed in CA + other jurisd
-Mortgage lien usually doesnt result in severance
RENTAL AGREEMENT:
p. 356 #2: A + B own JT, A = 10-yr lease to C. Then A dies and conveys ppty to D. What are Bs rights?
Common law: lease severs. Conveyance of ppty destroys unity of interest b/c JT has only reversion; C gets possessory rights at diff
time to diff unity of possession and time.
(similar to title theory of mortgages, yet criticism of unintentional severance)
Modern view lease does not sever. Question of whether surviving JT takes subj to lease, lease isnt giving title (just possessory
rights); JT giving lease prob doesnt mean to sever JT w/ lease
(similar to if JT takes subj to mortgage).
(1) surviving JT takes subj to leasehold
(2) surviving JT doesnt take subj to leasehold
-lessee can protect himself by getting all JTs to sign lease or have JT sever JT to become TinC before death (not fair to look
only at lessee, who didnt get JTs signature, could also look at JT who had their survivorship rights compromised and didnt
sign. Also, lessor didnt intentionally mislead lessee, should lang of lease have JTs possessory interest (JT with right of
survivorship)?)
RESULT: If JT who created lease dies and lease didnt have all signatures of JTs, then lease expires (tough luck).

31

Unity model about rental agreement:

1) missing one unity
2) lease isnt giving title, just possessory rights, so still have unities
3) intention: did JT intend to sever right of survivorship? Unlikely b/c not std means of severing.
Trend: looking more at intention as oppose to unities. Now, if unities are disrupted, look to see if you intended something else.
p. 356, #2: If A + B have joint tenancy, A + B give written agreement giving B the rentals from and possession of the land for her
life. Does this agreement destroy the unity of possession? Does it matter if its a 3 rd party? Should A have their right of
survivorship removed?
Ans: If use common law rules, then allow JT A to give to JT B. However, now we can just look at intention. Right of survivorship
benefits: no probate.
p. 356, #3: H and W get divorce and signed agreement providing that divide proceeds of Blackacre. Before Blackacre is sold, W
dies. Does H have survivorship rights in Blackacre? (Did this make joint tenancy into tenancy in common?)
Unity rule (common law): no severance b/c no unity was severed, so H takes all
Intent model: H and W intended to sever unity rule, so severed. (used to clean things up)
Other possibility: H or W could have just severed it already, or use straw to get it back into tenancy in common so it comes back
to you.
JOINT TENANCY BANK ACCOUNTS
True joint tenancy bank account: O intends to make a present gift to A of sum of sum deposited in addition to survivorship rights to
the whole sum of deposit.
Payable-on-death account: O may intend to give A only survivorship rights, basically just a will (As name put on account solely for
purpose of passing ppty at death)
-usually not permitted b/c viewed as testamentary instrument not signed, witnessed according to Statute of Wills.
-if not allowed in jurisd, people create joint tenancy with intention that it be payable-on-death acct in disguise
Convenience account: O may intend that A only have power to draw on the account to pay Os bills and not have survivorship rights.
JOINT TENANCY ACCOUNT: all-purpose account, litigation to est true intention of depositor; agreement on bank to give to survivor
only to protect bank yet in reality, this doesnt determine realities of ownership btw JTs
-some juris: presume surviving tenant takes unless clear/convincing evidence otherwise (burden of proof on those challenging
-other jurisd: survivorship rights in JT acct is conclusive
Contribution rule: Rebuttal assumption share proportionate to contribution
Tracing principle: might be able to trace out that A doesnt own less/more than 50%
Require evidence: intent of contributor
Equal shares rule: (true JT acct), common law rule, assume that JT bank acct holders hold = shares
Convenience account: If O and I put $ into acct for As bills, then As creditors get something. If A only has survivorship rights,
As creditors cant get to acct.
Issues: creditors reach, hassle to figure out O, A shares
Common law rule: joint tenancy 50% in bank account (with right of survivorship) presumption with common law and then others
have to prove with desire convenience account + contribution joint bank account
Bank: leave as joint tenancy, banks will allow if payable on death (doesnt pass through probate), giving right of survivorship, not
giving present interest
Example: H + W and S have open joint savings account, and money from Hs salary. H dies, and W takes out entire amount.
What rights do S have?
Common law rule (equal share): S gets 50% (with JT)
Convenience add-on: need evid but maybe H+W have JT acct and S only convenience (pay bank acct), depends on jurisd.
Banks: lack burden/hassle.
Courts: JTs deal with this in ct, banks get waivers signed (litigation fees bis only for those who can afford litigation use
it, so arg to regulate bank accts but we arent there yet)
SAFE DEPOSIT BOX
Example: If A + B joint tenant for safe deposit box, then does A + B both have title to items in deeds.
Titled items: No, b/c most items in safe deposit box so important that we dont allow title of safe deposit box determine title to the
items in the safe deposit box (deed).
-titled items arent conveyed but untitled items can be taken, yet dont note it or youll have to pay gift taxes on it. (used for
tax evasion for family members)

32

p. 358, #3: A + B have joint savings account of $40K. How much of the account can As creditor reach? -current possessory
interest, if A sick, then doesnt make sense for A to have present possessory interest in ppty that can reached.
-hospitals/creditors can squeeze out what they think is part of As portion.
Concerns: most people hold as JT in homes (only real assets), yet non-payment falls on people thru increased taxes
Defino v. Vealencis, p. 359
PARTITION IN SALE:divide land by selling land and dividing proceeds.
Issue: W and A want to sell ppty so they can buy it at low price (unfair)
PARTITION IN KIND: divide land by proportion. If one land is not equal in value, have to make cash payment to other tenant
(owelty) to equalize value.
Reasons to use:
1) Extreme resolution (only for emergencies)
2) Respect uniqueness land, therefore, dislodging someone is extreme remedy, yet real ppty doesnt hold same uniqueness as
land.
Reasons to not use:
1) Not practical/infeasible.
2) Ppty owners better with partition in sale.
3) Too many people (difficult to split up), lots too small (zoning): only requires one person to sell
-yet than co-tenants wont own land if division by sale.
4) Land value higher with sale. Whole worth more than sum of parts (monetary)
-Same as life estate + future interest < FSA
Trends:
Usu ends up with sale b/c whole worth more than sum of parts. Cts use interest = econ interest
Cts also look at residential v. commercial ppty (Helen consider ppty her home)
Some juris look just at land (best economically) b/c then parties can work it out amongst themselves (if land too
hard/impractical to dvide, so hold out for large amt of $), yet ct didnt believe that these parties would get along.
Cts use rotating ownership (time-shares with use rights) for personal ppty but not for real ppty as much
p. 369, #4: Personal property can be taken away yet real property stays there. Argument over rocking chair (partition).
Options: rotating ownership, potential of hiding rocking chair (but w/ land, cant hide), sell it, destruct ppty (split in half), give
to one person depending on: who took care of/paid bills, not who pet likes best b/c then itll be custody issue
Problems of agreements that restrict right to partition (not to partition until certain time):
-right of alientation, special contract (real ppty) v. ppty issue (ppty unique, rules of real ppty special (means of
wealth: ability to support yourself + family, might restrict your ability to survive)
-may be invalid if unclear when its reasonable to partition
-burden on person putting restrain partition w/ contract (have to be nice to each other before partitioning land)
-should be for legitimate, not spiteful partition.
Co-tenants responsibilities to each other:
Should in-possession co-tenant pay rent to out-of-possession co-tenant:
Yes: unfair b/c lost rent opportunity costs
Some cts say allowed and no rent is required. Out-of-possession co-tenant might use their share (all have 100%
ownership) and try to oust out (when someone blocks other co-tenants use of land), cts might even partition if
pissed.
Differences: inherited v. bought ppty, comm. v resid, in-possession co-tenant might pay the carrying-costs.
Spiller v. Mackereth, p. 369;
Out-of-possession owner wrote a letter demanding rent to in-possession owner b/c getting no rent
Yet not enough for ouster (b/c didnt demand equal use of property)
Cts: need more than right for rent (not in this jurisd). Require evidence.
Other jurisd: (1) whatever represents ouster (evid), (2) req hostile behavior
Ouster *: assume threshold of ouster pretty high, getting rent more difficult, starts SoL for AP so high std
1) Ousting also starts SoL for AP: so should be harsh (high std), yet same time, ouster for rental payment diff, encourage
sole ownership (cts also look at family v. commercial development fiduciary duty so should be harsher, AP std of
ouster) v. family member (less harsh ouster) Fiduciary responsibility: stems from family members assumption that they
trust one another more than commercial rltship. Therefore, cts want to protect trusting person (validate trust) by
assuming fiduciary rltship. Factor: family/commercial property (bearing on std of ouster in order to get rental payments)
-ouster in AP is claim of absolute ownership and denial of co-tenancy rltship by occupying cotenant
2) Liability of occupying co-owner for rent to other co-owners

33

-have to request equal use and enjoyment of ppty, sometimes require denial of right to enter (demand or an attempt
to enter), yet not sufficient to just ask cotenant to leave b/c they have 100% right to land as well.
Three different rules for in-possession co-owners to out-of-possession co-owners:
1) Minority rule: in-possession co-owner pays fair mkt value rent to out-of-possession co-owner;
-if out-of-possession co-owner doesnt ask for rent, then start SoL for AP (b/c OOP co-owner has right to get rent)
ownership right to collect rent
2) Majority rule: Pay rent + start SoL for AP only when ouster occurs, in-possession co-owner doesnt pay rent unless ouster
(so high std of ouster for this).
Result: usu in-possession co-owner doesnt pay rent, and AP not triggered (good b/c then you know if AP starts)
-cant recover rent unless in-poss ousted by out-poss, in-poss agreed to pay rent to out-poss, or in-poss stands in
fiduciary rltship to out-poss
Rationale: promote productive use of ppty but rewarding co-tenant in possession/use of ppty, but also gives rights
to out-poss co-tenant
Carrying costs: in-poss has to pay expenses of upkeep (eg. taxes, mortgage interest, repairs); if that exceeds rent,
then in-poss has right of contribution
Ouster: act by one co-tenant to deprive another co-tenant of right to possession (occupying co-tenant refuses to
admit another co-tenant into possession), doesnt respond to letter, etc. (flexible, depending on jurisd)
Remedies: ousted co-tenant can get share of reasonable rental value, suit to partition ppty
3) Pay no rent yet ouster std low: in-possession co-owner doesnt pay rent to out-of-possession co-tenant, yet low std of
ouster. (eg. can be verbal issue); then have to worry about low standard in AP-ing
4) Another minority rule: in-poss required to account for out-posss share of reasonable rental value of ppty (after deducting
expenses of upkeep)
Rationale: burden on in-poss cotenant so encourage rental agreement (less litigation)
p. 372, #2: H + W fight, and W leaves the house b/c of abusive treatment. Is this ouster (abusive treatment)?
Ans: Should use high std for ousting (to start AP) & low std for ousting re: rental payment (b/c people in this situation fearful
in physically abusive relationship) b/c dont want to promote fearfulness (people too fearful to protect their rights, so then
would have to create rules to address peoples rights)
-separate AP and rent payment as separate issues
Swartzbaugh v. Sampson, p. 373;
JTs (H + W), H gave lease to person who built a boxing pavilion on ppty; W wants to void lease
Ct: held that H can make lease w/o Ws consent yet W can attempt to end lease.
Ct: JT can lease w/o consent of other JT, yet if lessee refuses to allow other JT use ppty, then other JT entitled to rent, other JT can
also partition, force an ouster, get an accounting (partition of lease)
1) In-kind partition: divide ppty and end co-ownership (yet then sacrifices right of survivorship)
2) Partition the lease (get accounting): as co-tenant with Sampson, she is tenant in common.
Options: divide half boxing pavilion for W and H. You can either divide the property with partition in kind (during lease
period), divide time youre using property, sell lease this is only during time of lease if you dont get along with lessee and
youre co-tenant
3) Partition by sale: ppty subj to sale, and might give H proceeds for improvements of land
4) Ouster: W has occupancy rights (same space b/c co-owners), so attempt to assert rights to piss off boxing guy
-Should W be bound by rental price if less than fair mkt value?
Ans: Cts say she can get portion of Hs rental value or half fair mkt value for lease term
-Risk in ouster (b/c lessee might partition b/c he can be largest bidder), or might add conditions to lease
-Also, depends if lessee thought H represented all ownership (cts can decide if W cant even try to get land)
-Is building an ouster (against Ws wishes)? Has lessee ousted W by building and locking her out?
-Does W have entry rights to building? Yes, since she has a right to occupy the whole, W should have had rights to enter the
building (b/c she has 100% possessory interest in land)
Moral of the story: none of these options help Mrs. Swartzbaugh
US general rule: if objectively speaking, its an improvement, then allowed
Weaker position: if you like something about the land thats not economically valued, in weaker position.
Protection measures: contract with all co-owners (record any document that concerns real ppty)
ACCOUNTING FOR BENEFITS AND IMPROVEMENTS
Situation 1: Ideal co-ownership situation 1
A + B own land with house on it, and neither can occupy so rent to C (mortgage, insurance, and taxes), but left-over (put into repair
account).
Possible disputes
-What kind of improvements/repairs should be made?

34

-Who agreed to rent to C?

-Should have gotten more rent!
Situation 2: Absolute worse
1 co-owner living there (1 person reaping benefits and another also bearing costs)
Rent (fair mkt rental) = $2K/month (A lives there and doesnt pay rent, A + B are co-owners)
Scenario 1: mortgage/taxes/insurance (M/T/I) = $4K/month (carrying costs)
Should in-possession cotenant get $2K/month from out-of-possession cotenant for expenses w/o out-of-possession cotenant
getting any rent? Hardest when mortgage is high (beginning)
Out-of-possessor: losing opportunity cost ($2K) + owe $2K
Scenario 2: M/T/I = $2K/month, should B pay $1K/month?
When the fair mkt rental value = carrying cost, should occupying co-tenant be responsible for this?
Scenario 3: M/T/I = $1K/month, should B pay $500/month?
Should each co-tenants pay $500 each?
Scenario 4: M/T/I = $500/month; B = could ouster, partition, etc.
Fairness of one co-tenant having rent while both have carrying cost.
M/T/I = share in appreciation (land value), yet dont have to connect to rent
However, can say that A gets appreciation + rent-free situation
Options: [If no agreement, then based on jurisd]
Paying carrying cost = maintaining ownership interest (investment) and rent is very different (some jurisdictions dont do this)
Might have to pay rent (if carrying costs)
Majority American law on in-possession co-tenant:
(Vague bright line rule) if FMR =< carrying cost, then in-possession pays carrying cost & no rent
[not uniformly applied in American law]
-yet other courts keep this separate b/c its almost like absent ouster out-of-possessor cant use ppty -- THINK ABOUT
THIS ON YOUR OWN
Payment of rent in ouster situation:
Majority: dont pay rent unless ouster, yet if ouster std low, then most pay rent w/ ouster (and majority opinion irrelevant)
Think about rent differently with carrying cost
REPAIRS ON PROPERTY
-repairs are voluntary so co-tenant cant be compelled to contribute, yet must wait until partition or accounting (set off the amt spent
on repairs) (reimbursed for necessary repairs)
Question of necessary repair and are you overspending?
IMPROVEMENT TO PROPERTY
-no duty to improve (only get value added by improvement)risky!
Example: Co-own house = $400K (2 bed, 1 bath)
-make improvement so house = $600K (then you obtain $200K increased value)
Court of equity decides division even though there are some std measuring ways (determined case-by-case)
1) Changed valuation in property after improvement
2) Depending on improvement, might not value added (if something like carpet, which might change and not add value to
property)
Improvement situation: take up and down side risk, and split the cost (?) Ask Bryant about that again.
Accounting: whats coming into property and out of property
Dont have if one person live in house and no sale/realization, etc. (person cant ask for $ or appreciation)
1) Not getting along and partition property (recognition of improvement)
2) Renting to 3rd person (get more rental value b/c of improvement) ask for accounting that reflects improvement
higher value
3) Not partitioning property but sell
4) Ouster other person pay rent.
-Whatever you can show me about increase in value you get. (might lead to many improvements in property if you
think improvement is good, then youll stimulate that kind of activity if allow generous improvements in property
then burden for legal system)
-get cost of improvement back, and then split all increases in value (why would you do that? give people enough incentive to
keep property improved yet still want to make them cautious might not be increase in value and want people to consult with
other tenants and know that you didnt own your property yourself); so people can K to just get all upswing of improvement; and
absorb full downside risk (not allowed to harm community but can benefit communit)

35

p. 384, H asked W to take care of him, and in return for that, W will get property after H dies, yet H didnt devise land to her, but to
Hs daughter from another W.
Ans. Contract unenforceable for lack of consideration (W owes H marital duty of personally caring for him when ill; so
performance of a pre-existing legal duty cant serve as consideration.
p. 342, (3) A and B are planning on getting married and two weeks before marriage, buy a house and call themselves tenancy by
entirety. Then they divorce and A conveys his interest in house to C. C brings action to partition ppty. Was it tenancy by
entirety?
Ans. Arent TbyE b/c conditions werent met so could be JT (b/c intent) or TinC. Suppose if JT with right of survivorship (A
moves out and gives to C, then turns into TinC)
TbyE: protection from spouses creditors but then cant use ppty to secure loans, etc. cant partition, stuck until death or
divorce.
Sawada v. Endo (Hawaii jurisdiction), p. 385;
Person gets into accident and getting sued. DOesnt have money, but has TbyE property. Conveys property to son, b/c property at
risk, yet b/c property was TbyE, cant get to property, so conveyance doesnt matter.
-Can only have TbyE with residential ppty, can be reachable by only certain type of creditors
-strong societal interests to maintain ppty for family (b/c use as loan for education, etc) so protect against creditors (and if creditors
know about TbyE, then its all good); yet problem when creditors is govt or tortuous damages claim (courts)
Different ways we can solve dispute (tenancy by entirety):
Debtor owns in T by E: 100% of property/possessory interest with conditional right of survivorship creditor; sounds like the
whole banana to me
1) might feel that way about drug/govt/tort creditors, yet not for Macys charge
2) since co-tenant has 100% ownership as well with right of S, then no creditors can get to it.
3) wait to see who gets right of survivorship (if Debtor gets, then creditors take them, or else other co-tenant gets property when
Debtor dies)
TbyE
Possessory rights own whole and not by half, spouse cant partition w/o permission of spouse, creditors cant get to him.
Right of survivorship like JT, yet right of survivorship cant be defeated, harder to break unities
Not all states have TinE and not for all types of property, yet all have TinC and JT
Creditor reach: (p. 386)
1) All Creditors get all b/c husband able to convey entire property NOT DONE ANYMORE
2) Creditors have no reach b/c TbyE
3) Possessory rights and right of survivorship of debtor
-creditor takes place of debtor in TinC with right of survivorship (substitution instead of conveyance)
4) debtors take credtiors right of survivorship and all other co-tenant to hold as FSA
p. 392, (3): Previously, since H took Ws real ppty already, cant have TbyE in real ppty yet now you can.
H + W has T by E home, house burns down, and H dies 5 days later. Iinsurance claim pays $100K.
Who gets money?
1) give $100K to W b/c its T by E; or
2) give $100K to W b/c turns into J.T W get b/c rt. of survivorship; or
3) unless T by C then Hs estate gets half ($50K).
United States v. 1500 Lincoln Avenue, p. 392
H used ppty for drugs, and now govt want to take possession of ppty yet W?
Option 1: If TbyE and criminal activity of one spouse becomes T in C (govt, Mrs. B); doesnt work b/c Mrs. B has 100%
possessory interest in it
Option 2: T by E govt obtains Mr. Bs rt of survivorship, Mrs. B has exclusive possession + rt of survivorship; drugs bad yet
respect Mrs. Bs rights, federal law context
-bad results for Mrs. B: cant put mortgage on ppty, cant alienate ppty (only has maybe life estate), cant rent (b/c need
both TbyEs signatures); Doesnt give lots of protection to Mrs. B; and cant AP against govt; want to protect innocent
Marital property- distinct from separate ppty (ppty you dont share even if youre married)
[all jurisdictions recognize]
Separate property inheritance, ppty you have before marriage;
-trend to move towards equitable division even if separate paycheck into separate accts
Marital property earnings after married, furniture used

36

On-going marriage: issues;

Divorce: what is property? How do we divide up issues in divorce?
Death: what rights do you have irrespective of type of property you have (TinC, etc.)?
Equitable division dividing ppty in divorce
-equitable division of ppty so doesnt matter if separate accts with spouse (title doesnt matter); except if prenuptial
agreement
Alimony compensation for victimized spouse [during time when there wasnt no-fault divorce, so to divorce needed to find fault in
other spouse.
Maintenance payments from financially more able person to financially less able person to help them get back on their feet (after
divorces)
-usually conditioned not on fault, but conditioned on economic dissimilarity btw two parties
-some jurisdictions combine with fault basis + no-fault basis; yet usu no fault
Rehabilitative alimony newer term than maintenance
-person who has lower income potential needs time to become adequately, sufficiently competitive in job market, so b/c of
that delay, the person who is already there will pay money for period of time designed to give lessor income person the
opportunity to get up to speed. (Usually connected to degree program + living expenses, etc.)
Do we bring in to pool the degree that person has earned? Do we bring into pool the career that one person has developed
and other person has not?
What is subject to division in context of divorce? (Graham, Elkus cases)
In re Marriage of Graham, p. 401;
Is degree earned during marriage counted in marital property, as opposed to separate property?
Degree- earner: can speculate earning potential; yet this is personal to earner, isnt inheritable, not transferable (ppty not inheritable
and transferable, but can think about it as LE and parternship, similar to loans yet with loans, finite end yet with earnings, not
until death)
Non degree-earner: investment in monetary/emotional/HH support; opportunity costs; goodwill (help biz)
Valuation speculative
Goodwill expected income stream from client base developed with marriage (divisible during divorce)
Contract (prenuptial): hard to predict what youll feel in future (eg. surrogate mother contract); also do we ant legal rule that sets into
place legal expectations of people might not work out, everyone out for themselves?)
Cleanup problem: if spouse makes more $ and at divorce, other spouse needs welfare, then should split money based on spouses
earning (potential). Where line to be drawn (?)
Contribution: where is line for who can claim for your success? Japan lets teachers contribution count
Elkus v. Elkus, (1991) p. 408
Issue: double counting (if you give ex-wife 50% and then get 2nd ex-wife 50% of ur retirement, youre out of luck)
Equitable division: Cts dont respect marital ppty v separate ppty (see everything as marital ppty)
CA has 50-50 division in community property
-all up for shifting unless you have a prenuptial agreement (that withstands scrutiny)
Alimony: continues if compensated for wrong even if alimony-getting spouse re-marries b/c its punitive
Maintenance alimony: ends if spouse getting $ & does okay, or spouse paying alimony makes less money (depend on payees need
and payers ability)

37

Chapter 6: Landlord and Tenant

Lease:
Blend of property (LL only has right to reenter and repossess the land on breach of cov) and contracts law (mutually dep covenants);
Trend: used to be indep covenants rule in leases, but now leaning more towards contract law (if LL breaches cov, can w/hold rent)
Interesse termini: under common law, until T enters, T had no estate in land (only contract right to enter), yet now thats fading & if T
breaks lease b4 taking possession, LL can sue for damages
Leases diff from other rltships:
Four present possessory estates:
(1) fee simple
(2) fee tail
(3) life estate
(4) leasehold
Key characteristics of lease:
1) Notice (what is required to end lease)
2) Consequences of death
Does lease survive death of LL or T?(determines how long you want lease)
Transaction seen as leasehold by (more likely a lease, as oppose to easement if):
Parties intention, what they call the transaction (*, but not conclusive), uses permitted (uses not limited), defined area (more specific
the description of the boundaries), rent reserved (periodic payment of rent, as opp to lump sum), duration (limited in time)
Billboard lease: usu seen as easement to come on land and erect/maintain sign
Lodging arrangements: determined by control of occupant over premises
Licensee: hotel guest, rooming house;
Landlord-tenant rltship: apartment hotel
Legal differences btw leases, licenses, easements:
(i) leases can be oral, but an easement is subj to Statute of Frauds (SoF) & req written instrument;
(ii) only a tenant has a possessory interest in land and can bring a possessory action such as ejectment, trespass, or nuisance
Types of Tenancies:
1) Tenancy for years:
a. Fixed period of time: no notice reqd b/c beginning/end dates (can be >1yr)
b. Creation: usu written, Statute of Fraud (need for >1yr); sometimes limit # yr for certain leasehold estate (and if over,
some cts say entire lease void), and if option to renew for period beyond permitted max, then entire lease void
c. Termination: automatically ends at termination date
Breach of covenant: LL has right to terminate if T breaches any of the leasehold covenants; sometimes LLs
right of entry: allows LL right to termination even w/o reserved right of entry)
Surrender: if T gives up leasehold interests and LL accepts = surrender, writing is necessary if unexpired
term is >1yr
2) Periodic tenancy: period to period (eg. month-to-month) until termin notice given, automatically extended; beginning date
must be certain but termination date is always uncertain until notice is given
a. Creation:
By Express Agreement: explicitly says in lease
By Implication: implied if no termin. Date, but says rent payments at specific periods
Annual rent payable monthly: where lease says, annual rent payable monthly (eg. $6K/yr, payable
$500/month, on first of month)
(i) Common law (most jurisd): year-to-year (but seen for only agricultural land)
(ii) Minority view: see as month-to-month, esp for dwellings, not agricultural land
(iii) Matters: b/c determined notice reqment

By Operation of Law:
A Tenant Holds Over: if tenant for years remains in possession after termination, LL may treat T as
periodic tenant on same terms as original lease
Lease Invalid: if lease invalid but T goes in possession & T pays, then goes from T at will into
periodic tenancy (period of tenancy = period for which rent is paid)

38

b.

Termination Notice Reqd: periodic tenancy automatically renewed, until proper notice (in writing and delivered to
party) fr either party but guidelines:
(i) Must end at end of natural lease period
Common law rules:
o How much notice is given (= to length of period (but not more than 6 months); parties may shorten or
eliminate reqment of notice altogether
o Notice must specific last day of period: notice must fix the last day of period as termination date
(majority: or else termination notice is invalid)
o Notice must be given: so LL/T has adeq notice (based on termination date) or else invalid
Restatement: say that if invalid, then end on earliest possible date after date stated (to go
along with parties intentions)
o Statutory modifications: reduce 6-month notice to 1-month for yr-to-yr, and allow month-to-month
tenancies to end on any day but req 1 month notice

Issue: LL doesnt gain anything from long-term periodic tenancy (b/c potential increased land values, increased rental prices,
no legal conseq if T leaves b4 lease ends)
3) Tenancy at will: no stated duration, continues until LL or T desires an end
rare yet can be created by lease for indef period thats not tenancy by years or when tenant in poss yet doesnt satisfy SoF
T liable for rent + double/tremble damages if other T moving in
LL can evict & no notice reqd
as long as LL desires = LL + T both have rights to terminate
as long as T desires = T has determinable life estate or fee simple
Creation:
Specific understanding btw parties that either party may terminate (unless lease expressly agree, then with
regular rent payments, see as periodic tenancy)
Termination occurs if valid warnings, or if one of these conditions is met:
Either party dies
T commits waste
T attempts to assign tenancy
LL transfers interest in ppty
LL executes term lease to 3rd party
Garner v. Gerrish, p. 447;
Does lease which grants grantee right to terminate lease at date of his choice create (1) determinable LE, or (2) tenancy by
will?
Owner (grantor) added covenant into lease; yet also reqd rental payments of $100 (really cheap and if dont pay, grace
period of 30 days)
Owner died and executor wanted T off land (and could if T by Will)
Early C/L: if lessee w/ right to terminate then to lessor as well
Now: cts say no reason why that should be case then creates determinable LE
Otherwise, violates terms of agreement and express intent of contracting parties
Issue: cts look at intent of parties (nature of rltship), but mostly look at words of lease, as long as T desires and it was written in
QUESTION: So does intent of parties matter at all in creating a TbyWill?
Holdover tenancy or tenancy at sufferance: when T wrongfully remains in possession after end of lawful tenancy. T liable for rent,
and lasts as longa s LL takes steps to evict T. Not notice reqd to end tenancy
Rationale: to aid those moving into apt (and LLs)
Hold-over Doctrine:
1) Eviction: LL may treat hold-over T as trespasser and evict him under unlawful detainer statute
a. other T cant move in (lose rent), get double/triple rents
b. hold-over: good excuse (treble damages/new leases?); cts look and lessen damages
2) Creation of periodic tenancy: may, in his sole discretion, bind T to new period T (with same terms as old lease)
3) Altered terms: if LL notifies T before termination of tenancy that occupancy after termination will be at an increased rent,
then T held to new terms, even if he objects, as long as rent reasonable.

Whats not hold-over: few hours, when delay is not Ts fault, seasonal lease (eg. summer cottage)
Double rent jeopardy: if T willfully stays and LL makes written demand for possession, then LL may collect 2-3 times rent

39

Forcible entry statutes: most states prohibit forcible entry (eg. entry against the will of the possessor). LL cant use force
or self-help to remove hold-over tenant (some also bar LLs from using subtle methods: changing locks), yet statues allow
LL to evict tenant.

p. 446 (1); Lease has been for no fixed term at $24K/year payable $2K/month
Whats period? Cts look at who wrote K, freely bargained (?), know conseq of notice, T have opportunity to ask ?s
Ppty: assume = parties, K: look at equitability of parties
Federal Fair Housing Act of 1968:
Unlawful to refuse to sell/rent a dwelling to any person b/c of race, color, religion, or natl origin, sex, against persons with
children except in senior citizen housing, and against handicapped persons
can discriminate against: people who have to register as sex offenders (discriminated against) are not covered; gay; obnoxious
people
Std-izes LLs conduct
Issue: hard to show discrimination: gay (can discr) v. AIDs (cant): yet if knock out gays, then might knock out most ppl w/ AIDs
Issue: Find out if proxy going on (permissible discrimination), or if discriminatory impact unintentional (yet intention irrelevant, only
impact has to be); hard if FFHA has statute reqment
Issue: Have to show that proxy connected with statute reqment (obnoxious = black), which isnt permissible
Note: complicated when mixed zoning (building w/ commercial space + residence)
Local statutes are stricter, so FFHA is merely bare minimum
Advertising: prohibit advertising/making any public statement indicating discriminatory pref (eg. statement to T/prospective T that
LL wont rent to people protected under FFHA)
Issue: if only use white models, violates if L-T practice; yet small biz might not be able to afford to get diverse models; T
has to show behavior results in discrim practices
Issue: welcoming/not welcoming images; preventing white flight (discrim?); cts say okay b/c its additional adver, not
exclusive mkting strategy to target preferred class; is FFHA to create integrated comm. or prevent race as factor?
US v. Starrett City Associates, p. 464 (3); white flight, so had quota for white applicants (=ly acceptable, same rent); cts
say impermissible b/c get apt based on race, regardless of your motives; quotas only allowed for certain limited/reasonable
periods of time (if youre trying to recapture what you lost), yet (as a corrective, quotas arent allowed under FFHA)
Issue: cant say, female or Christian female, yet havent enforced rule
Exemptions: private clubs, dwellings for religious organizations, certain specified persons (to protect some types of close personal
rltships from what is thought to be an invasion of privacy)
1) Single-family dwelling (person leasing/selling if owns and she (i) does not own more than 3 dwellings, (ii) does not
use a broker, (iii) and does not advertise in manner that indicates her intent to discriminate
2) Small owner-occupied multiple unit, Murphy exception: person exempt if offering to lease room or apt in building
of 4/less units, one of which she occupies & doesnt advertise in discriminatory manner; cant advertise in anyway or
use sales agent; has to do it herself
Issues: reasons btw advertising yourself and discriminating: (1) hate speech concerns, (2) beneficial to deal w/
people face-to-face
Soules v. US HUD, p. 465; LL lives in building and didnt want P living there. P states its b/c FFHA discrimination
(children); LL asked if children noisy b/c older people in apt and exempt)
3) Distinguish no exemption under section 1982: Yet Civil Rights Act of 1866 doesnt exclude this
4) Religious organizations: convents only for Catholics okay
Note: rltship btw how you advertise and discriminating (hate speech concerns), beneficial to deal with person face-to-face, cant use
all whites for L-T (yet arg of affording non-white models if small biz)
Reqd: no intent reqd yet objective proof: patterns of exclusion that results in discriminatory practices overlap
Enforcement: aggrieved person may sue LL/seller in fed ct, and ct may give injunction, actual damages, and punitive damages
Proving Discrimination:
(1) P must est prima facie case by showing: (i) Ps member of statutorily protected class, (ii) applied for and qualified to rent the
designated dwelling, (iii) denied opportunity to inspect/rent the dwelling, and (iv) housing opportunity remained available for
others. (can just use reasonable inference give benefit to P)
(2) B shifts to D: show that refusal to rent motivated by legitimate considerations having nothing to do w/ Ps race, religion,
ethnic origin, sex, disability, or family status. P just have to survive alternative explanation. (borderline quality of financial
status)
(3) P then has to prove that alleged legitimate reasons are pretextual and not real reasons
Issues: business efficiency v. discrimination (picking top 4 lang to make application b/c top 4 people);
Example: wheelchair guy, got injured other way not Vietnam War, so as checking financial status, rejected

40

Kinds of discriminations:
1) Disproportionate effect on one race: not only by racially discriminatory purposes, but also those that disproportionately
affect racial minorities and lessen housing opportunities for them
US v. Starrett City Associates, p. 464 (3): white flight, so tried to get more whites by giving them preference (same
rent, yet more likely to get apt) to retain integrated community. Cts: said impermissible b/c someone more likely to get
apt b/c white (cant do regardless of motives); yet for certain period of time, cts might allow city to give quotas for
people who historically were denied housing (try to recapture what you had before you lost it) court may allow quota
system for limited/reasonable period of time (as a corrective, quota system isnt allowed under FFHA)
2) Sex discrimination: also includes harassing T for sexual favors;
Thought: can protect T by limiting FFHA (to conduct to remain in tenancy and get essential services so that LL isnt fearful
of discriminatory impact) and maybe expand other rights? Also, other parts of rltship, not just one rltship (LL)
Sometimes doesnt have to be tied to repairs/living in rental unit (just depends on LL rltship); depends on ct;
3) Familial status: cant discrim based on familial status (existence of children under 18 in family unit). Whether
restrictions limiting # occ/br subj of litigation
Exemption:
housing occupied solely by people 62 yo+,
housing at least 80% occ by at least 1 person 55+ (and units must have signif facilities/svcs specifically designed to
meet physical/social needs of older people)
4) Disabilities: handicap = broadly defed as a physical or mental impairment which subst limits 1+ of such persons major
life activities, excludes drug addicts but includes recovering drug addicts/alcoholics/AIDs
Reasonable accommodations: LL must make reasonable accommodations for handicapped T to get equal
opportunity to use/enjoy dwelling (eg. LL must allow pet for hearing dog, even if no pets policy)
5) State Statutes: some go further to protect from discrim b/c of marital status, sexual orientation, or age
Marital status: some cts say marital status doesnt include unmarried cohabiting couples; but CA includes (cant
discrim even if LL refuses b/c religious reasons)
6) Admission to Public Housing: empowered to adopt desirability stds to determine eligibility for admission. Std could be
weighed only in individuals case, not discriminating as class (just obj scoring systems)
Eviction: if T in public housing proj sells drug, T forfeits apt; yet apt not forfeited if one of sev occupants uses drug,
and owner of lease doesnt know about drug activity (only drug dealer can be evicted)
Examples, p. 474
(2) Discrimination based on family status, and on sex
Which (if any) of the following would violate the federal Fair Housing Act?
(a) LL has 8 single-family houses and limit people to 4, so refuse to rent to couple with 3 children.
Discrimination b/c based on familial status and not under Mrs. Murphy Rule (more than 4 single family home)
Issues: market alternatives (for 4+ family units), since FFHA purpose to add adeq housing for certain groups of people
Issue: rational biz decision? What is 4-mem family has another child?
Rationale: HUD doesnt like family size (based on race and religion) large family sizes occur in certain religious
communities and minority communities (subterfuge for racial and religious discrimination)
Soln: use sq footage for occupancy rules; discriminates against smaller families (b/c rent for full occupancy, law protects large
families
Issue: can ask about legal immigrant status to people w/ accents after 9/11, yet can be used to discrim based on natl origin; (natl
origin v legal immigrant status)
(b) L regularly rents 1br apt to 2A, 2br to 2A, 2C, but no 1br to 1A, 1C and 2 br to 1A, 3C
Ans: Depends on local ordinances about room sharing, yet not allowed to ask about who is living in what room (discrim against
single parent)
(c) L refuses to rent to a heterosexual couple b/c they are unmarried
Ans: yes, b/c imposing Ls beliefs upon couple
(d) L refuses to rent to gay couple b/c he objects to partners sexual orientation.
Ans: yes, b/c not kosher.
(e) L rents to single woman and then sev weeks into tenancy, begins harassing her with demands for sexual favors
Ans: FFHA doesnt allow
QUESTION: can only old people discrimination against children? Can you discriminate against people w/o children b/c then theyll
complain about children?

41

Issue: Familial status, marital status (only living together, not married), age; not having children; LL can frame ? in econ terms, and
say its harmful to biz
LL can frame questions in purely economic terms, and say it harms business if they rent to these people (eg. no childrendeal
with problems of arguments about noise/damage kids make & cost to LL); (eg. age if leave stove on and building burns down,
leave water on & econ problem); (eg. non-marital relationship relationship more fragile than those chosen to marry, then risk
that one will move out and all rent cant be managed by person who is left behind & legal problems to recover rent)
Issues:
market closure issues important yet not controlling; eg. b/c we dont care about no housing for sexual offenders
Proxy for discrimination: reflects what we feel about certain offenses:

Sexual offenders: once sex offender, always; dangerous; costs to prevent you from becoming one

Drug/alcohol abuse: societal attitudes changing; believe they are controlled behaviors
o If no proof of drug abuse, cant discr against (yet dont have to accept illegal activity
o Cant discrim b/c alcoholic, yet might cause problems (and if LL has liabilities, LL should be able to
choose Ts)
o Yet if LL knows of drug abuse, then govt can seize ppty
o Confusing b/c cant discrim for past use but can for present use

Scary looking tenant: cant discriminate against b/c cant rely on fear (your own or Ts); FFHA reqs solid evidence
Ex-convict: not protected class, might be under state law
Mental health: can totally use as subterfuge: dog as companion (fat person uses dog to exercise, scared of dark and need cat
just need doc to sign off, b/c FFHA guidelines so broad)
Distinguishing specific nationality or religion (discrim): After you rented to someone, if LL says, unlike in Mexico who drink
in public place, we dont do this in our apt complex.
Prevent ideology mtgs in common area: white supremacy mtgs (either allow everyone to express peoples religious belief so
everyone uses common area, or say, no religious mtgs allowed (either none or all allowed)
Issue: if people turned away from housing (which is * need) b/c of charac they have, society should be concern on where they are
going to end up
Issue: Should there be level-playing field for everyones housing (and spread cost to LL)?
Reasons why LL should be able to discriminate freely:
1) Property entitlement (property interest); right to exclude
2) Regulating industry as whole is costly and more burden then less likely theres housing (b/c LLs provide services)
3) Property damage (when required to have children)
4) Property value decrease
5) High turnover (many people leave)
6) Religious rights (LLs own religion isnt respected, have to condone people) (eg. unmarried people, condoning
fornication)
7) Increase crime & cost of security (eg. increased number of racial population)
8) Business decisions based on statistics and profitability
o b/c public interest of segregating people and exacerbating ghetto-izing and school funding inequality; housing too
valuable (want to protect people who might not have housing options)
o all LLs have same restrictions, so not too taxing
LL arg:
Q: Why do they solve problems in discrimination w/ local ordinances + FFHA and bear burden for homogenous housing rights?
A: Ts might be kicked to streets (creates larger problems). Cant look at LL in isolation.
Local ordinances: NY: okay to discriminate against celebrity status, not in CA
Career: cant b/c then give more points with long-term jobs like computer programming
Water-bed: cant discriminate against
Can ask (protects LLs): relevant econ interest: can they pay rent, take security deposit, some LLs want income 3x rent yet cant ask
about income source, must ask for all income sources (not just hubby)
FFHA:
approp that prohibit discrimination uncontrollable by person (b/c you cant do anything about it, yet relates to important need
housing)

42

if something you can control, why should FFHA protect you? (you chose how you comfy you make LL feel, yet concerns of why
should you have to make LL feel comfy?)
encourages large LLs who have time to look at details of indiv applicants as oppose to mom&pop LL companies
CA doesnt have Murphys exemption

Landlords Duty to Deliver Possession

1.

2.

Legal Right to Possession: LL has duty to transfer to T at beginning of tenancy legal right of possession; If another person
has paramount title, then LL in default
a. Paramount title: any interest/title in leased land thats paramount to LLs interest
b. Tenants remedies prior to entry:

if paramount title, at time lease was signed, T unaware of it, T prior to entry may terminate lease

if T knows of paramount title at time he signs lease, presumed to waive poss of eviction by paramount
claimant (LL not liable)
c. After tenant enters into possession:
after entry, T has no remedy against LL until hes actually evicted by paramount title
Actual Possession:
a. English rule (majority view): LL has duty to deliver to T actual possession, as well as right to possession, at
beginning of term. (if LL doesnt remove person w/in reasonable period of time, then LL defaults)
Rationale: intention of parties include use of ppty, not lawsuit against prior T; also LL in better position,
knows other T better; LL more familiar w/ eviction procedures, can evict w/ less cost
Tenants remedies: for LLs failure to provide actual possession, T can terminate lease & recover
damages for obtaining other housing, refuse to pay rent for that time & recover damages (including cost
of renting other places in excess of rent, cost of ousting holdover T, loss of anticipated business profits)
Issue: more uniform (if LL responsible), LL has opportunity to write in lease not responsible to holdover
Ts and obtain lower rent
b. American rule (minority view): LL has no duty to deliver actual possession, so isnt at default
Rationale: (1) Lease conveys leasehold to T, up to T to take possession; (2) T has right to evict
holdover by summary proceedings and doesnt need LL to remedy; (3) LL shouldnt be held liable for
act of holdover; (4) since LL not reqd to evict trespasser after T takes possession, LL shouldnt be
reqd to evict trespasser b4 T takes possession
Remedies against holdover tenant: sue to evict holdover and recover damages; or treat holdover T as
T for another term (and get rent payment)
Issue: can LL get lower rent and go under American rule? Is it okay policy to allow people to bargain
away their rights? Ts dont know they have to bargain for this (think its unnecessary)
Issue: commercial property (people check out beforehand) so diff rule btw commercial and residential
ppty
Issue: what about if youre landlocked (if youre landlocked by grantor, then have easement, or else
screwedshould have checked out beforehand)

Issues:
equity?
Legal options: T could contract actual possession into lease, get damages from holdover T;
Cts are more protective if L is silent (sometimes assume that LL provide actual possession); LL best position to choose T
unlikely to holdover
Most people dont know they have to bargain for actual possession (makes sense if look at lease as contract)
Diff depending on commercial/residential T
Yet T should have autonomy, as opp to LL so involved in life (more responsibility, more LL in your lifegoing into your apt,
etc)
Assignment and subletting
1.

Assignment: unless lease prohibits, T or LL can freely transfer his interest in premises. C/L: if T transfers entire remaining
term, then made assignment, and assignee comes into privity of estate w/ LL; assume that T2 knows all terms of original
lease
a. Privity of estate: makes LL and assignee liable to each other on covenants (right to sue); have normal LL-T rltship
(parties in possession)
Issue: started b/c important that LL gets $ flow (rent serious obligation)
b. Privity of contract: P/D signed original K, obligations binding regardless if in privity of estate (parties in K)

43

2.

Sublease distinguished from Assignment: C/L: if transf less than entire remaining term of leasehold, then sublease and LL
of subleasee (no privity of estate)
a. Reversion retained sublease if T retains reversion in property
b. Right of entry retained if breach of covenant sublease (if T transfers entire remainder of term at a higher rent
than he is paying, w/ right of reenter if rent not paid)
(1) Application L leases for T for 10 yr at $200/month, T gives remainder to T2 for $250/month with T retaining
right of entry if rent unpaid (right reserved in forfeiture clause)
POSSESSORY INTEREST RIGHT
(a) common law view (assignment) assignment b/c T retains no revision (right of reversion viewed only as
means of enforcing T2s contractual obligations)
(b) modern viewright of entry makes it a sublease (Restatement) reservation of right to re-enter for
nonpayment of rent = contingent reversionary interest, so transfer is sublease.
1) LLs remedies L can sue T for rent on privity of K, and then L can evict T2 for breach of promise of
LL-T. Yet LL cant hold T2 personally liable.
c. Minority view intention controls hold intent of parties determines whether assignment or sublease and that
additional rent = indication of sublease; and lump sun, over installments = assignment

3.

Duty to Pay Rent a promise to pay rent is cov running w/ land (promise can sue any person on cov w/ whom she is in
privity of estate. LL can sue either privity in K or estate for rent payment
a. Assignment est privity of estate w/ LL and assignee (personally liable)
Liability of original T still liable if privity of K
(1) T is surety T2 is more liable b/c in possession and T is secondary, yet L can sue either T or T2, yet if T
pays, can sue T2 for recovery. T2 and L cant change terms to prejudice T (then T released as surety)
(2) Release by LL -- T escape privity of K with express or implied release (just b/c LL consents to
assignment doesnt mean released)
(3) Novation if L consents to assignment to T2 and releases T and then T2 undertakes promises of lease =
novation (new K btw L and T2; prev K w/ T and LL ended); T2 & LL have privity of estate + K
Ways to get rent from T2:
(1) LL has separate K with T2
(2) T2 has express binding to primary lease
(3) Sublease made with intended 3rd party beneficiary (some juris dont like b/c T beneficiary of T1 (so then
T liable), where does it stop? Scope too broad
Solutions:
1) go after original T for rent
2) look and see if LL can be 3rd party beneficiary
3) then see if its an assignment (then privity of estate established)

b.
c.

4.

Liability of assignee -- T2 only responsible for rent accruing during time of his leasehold.
Application: L leases to T for $200/month. T becomes 1 month arrears. T gives to T2, 4 months arrears, T2
assigns to T3, reserving a rent of $250/month
(4) L recovers from T3: L can recover $200/month from T3 during privity of estate (cant recover $50
extra/month)
(5) L recovers from T2: L can recover $800 from T2 for 4 months when privity of estate
(6) L recovers from T: L can recover $1K (5 months in default 1 for T, 4 for T2) b/c privity of K. Then T
can sue T2 and recover $800 (4 months).
Sublease: not personally liable to LL for rent
Rationale: no privity of K/estate; yet LL can oust subleasee out if not rent
Third-party beneficiary suits: if assignee/subleasee assumes cov of master lease, then directly liable to LL (who is
3rd party beneficiary of K btw T and sublease), and liability of assignee/subleasee continues after privity of estate
over! (assumes Ts privity of K)

Covenants Against Assignments or Sublease: leasehold is freely transferable (unless covenant that says its not)
a. Express covenants:
LL may insist on no transfers in lease (but since restraint on transfer of land, strictly construed). not to assign
= can still sublet; not to sublease = can assign; can transfer by will, or involuntary transfer (execution or
bankruptcy)
b. Arbitrary denial of consent:

44

c.

if lease contains covenant against transfer w/o LLs consent, older view that LL may arbitrary refuse to accept a
new tenant (no duty to mitigate damages, as ordinary King party does under ordinary K principles); property
concept prevails over K concepts
Minority view: LLs denial must be reasonable
Whats reasonable?
objective test that LL acting as reasonably prudent person, factors (financial responsibility of new T,
suitability for new building, but cant consider econ advantage); cant refuse as strategy to get T to
terminate lease (Kendall v. Ernest Pestana)
Waiver of covenant: LL may expressly/impliedly waive cov against assignment of sublease. Implied (LL accepts
rent from assignee w/ knowledge of assignment)
Rule in Dumpors Case: when LL expressly consents to one assignment, then cov becomes unenforceable (once
cov waived, the cov is destroyed)
Criticism: doesnt make sense b/c purpose of cov is to assure LL has responsible T
Exceptions:
Covenant binding leasee and assigns: even if LL allows assignment (tho expressed cov in
lease), then cov still binding with assignee
LLs limited consent: if LL says, allow only for this assignment, the Rule in Dumptors case
doesnt apply

Arbitrary refusal: LL should have explicitly wrote arbitrary refusal in lease

Majority rule: T responsible to require terms of responsibility if commercial (b/c on equal footing), b/c LL chose T (costly)
Fundamental fairness principle: (who gets diff in rent) LL should take upside risk (b/c lease contingent on T staying there), yet also,
value can go down, and T still bound by K (why should LL only get upside risk and not downside risk?) (Kendall v. Earnst)
Question of whether something called sublease yet gives remainder of lease is a sublease or assignment:
Intention of parties, what it is (regardless of intent), what it is called in lease (persuasive yet not conclusive)
Did parties have constructive notice of covenants in main lease?
C/L: just reqs that full remainder of lease, presume you know all terms of lease (not sympathetic
Other view: assignment terms have to be same as original K; replicate LL-T K; T2 agrees to prime lease terms (needs to be clear
about what is in LL-T K)
Other view: req constructive knowledge of who people are (to have privity of estate)

Other view: if T-T2 has K mirroring K with T-LL, then N/A (but can do to reassure LL) and others say, okay and LL can reach
T2 (privity of K)
Might want Privity of K for subleasee so dont have string of assignments (esp for T if T still in privity of
K, who will still be responsible)
If T2 says nothing, then T2 can only reach T2 for privity of estate and after out of possession, no liability from T2 to LL
T2 should have constructive notice if jurisd req recording, or else inquiry notice: should have asked T before signed lease (when
getting assignment)
Modern trend: subleasing people makes themselves vulnerable to prime lease terms; so LL can reach them through privity of K
instead of privity of estate
C/L and traditional approach: if privity of estate, respons for covenants (assume notice)
T2 had option of choosing a sublease (b/c then no privity of estate)
If subleasee signs K that says, I will pay rent, then respon even when out of privity of estate to T. If covenant in sublet
agreement that T2 respon to 3rd party beneficiaries, then LL can go after T2 (privity of K established just for period of
possession)
Some jurisd want more: new K btw LL-T2, but doubtful and rent very * to LL so cts allow
If LL, after expressed cov in lease saying no sublet or assign w/o LLs permission, allows sublet (receives rent), then accepting
sublet. However, T1 still respons b/c privity of K (need novation from LL to get out of privity of K)
Also allow other assignee, subleasees b/c allowed one already

Example: p. 490 2c; T -> T1 -> T2 -> T3 (all assignments), T1 agrees to assume all covenants in lease, and others dont do anything.
L sues T1, T2, T3
Ans: T wasnt released by novation (even if T1 assume all covenants in lease); T1 can be liable b/c privity of contract (yet no privity
of estate); T2 (no privity of estate, then cant be liable, only responsible for T2s time period for rent); T3 liable b/c defaulted.
novation: release privity of contract

45

Protection v. rights (LL-T)

Residential v. commercial lease: reasonability of accepting subleasee or assignee
Evaluate tenants differently
Prev: no obligation to look for replacement T, sometimes cts look at parties for probable expectations if silence (yet usu assume
that LL had arbitrary refusal so if T wanted that removed, should add it in lease from get-go)
Commercial lease: easier to get reasonableness as duty b/c harder to eval residential tenants (so dont req most of the time)
Residential lease: if dont accept, increased cost on LL (and spread cost to other tenants) isnt that true with commercial
property as well tho? Or just b/c commercial property diff?
Factors you consider: financial stability/responsibility (rent), suitability of proposed use for ppty (eg. extensive remodeling),
legality of proposed use (legal conduct, zoning rules), need for alteration of premises, nature of occupancy (eg. office, factory,
clinic, etc.); possible for LL to show issue based on economics (fact characterization)
Other factors in commercial reasonable stds: property as whole, LLs id as oppose to being other biz owner, other T at risk if LL
allows substitution, new T conflict with image/other Ts (anchor large stores) might have restrictions by other Ts Ks; LL wants
to protect other Ts profit (if get rent as %age of sales)
Area of litigation: if business sharing (rent is %age of business) and T leaves b/c profiting a lot (big area of litigation)
Factors you can t consider: personal taste, convenience or sensibility, cant deny consent to change higher rent than originally
contracted for, previous bad history (ex-drug-addict, ex-arsonist), all FFHA reqments; cant discriminate for substitute tenant as
much as original tenant
Example: LL (meat producer) T (vegan restaurant) rented to T1 (Eatopia vegan restaurant); if arbitrary refusal allowed, then
Eatopia can be rejected, b/c not protected under FFHA why is this? If no arbitrary right of refusal, is it usu that reasonable
std higher than getting original tenant?
Example: LL T (chicken restaurant) T1 as Eatopia (vegan restaurant)
Ans. If no right of arbitrary refusal, then can discriminate against original tenant but not against substitute (can be less
discriminatory); can look at destructiveness to commercial aspect to LL.
Ans. Std of reasonability (if high, then totally give T way to leave favor T, LL cant refuse on small reasons) (if low, then more
like arbitrary right of refusal, LL can refuse for small reasons, req good faith dealing for LL)
Ans. Option to put in lease who you didnt want to accept (like arbitrary refusal rights)
Ans. Starting positions:
Contract v. reasonable std threshold (created by legis):
1) if reasonable std threshold low (difficult for LL to refuse substitution), then msg to LL to create high K std of reasonableness
(burden on LL to put in K to protect them)
2) if reasonable std threshold high (LL can refuse based on many reasons of reasonability), then msg to T to bargain K-ually for
reasonable std
Examples: p. 499;
(b) L (Christian evangelical org), owns building that uses for hdqtrs. T leases and then subleases to T1 (Planned Parenthood). L
refuses consent on grounds that it fundamentally opposes T1s aims and activities.
LL has objection to other substitute T (what are good arguments?)
LL: reasonable to refuse abortion center b/c diff customers, liable for riots/violence (econ), lower donations (econ) yet cts
dont look at these issues for reasonableness
Middle ground: allow refusal if antithetical to their beliefs (is it never commercially reasonable to deny consent to a transfer
solely on the basis of personal taste, convenience or sensibility,?
Ans: if L wouldnt have leased to T1 to begin with, might have case for reasonable w/holding.
Cts decide whats best to req of LLs while protecting Ts rights as well, consider broader range of factors
In the presence of silence we deal with four possibilities
1.
2.
3.

LL need not be reasonable (no duty to accept sub) LL does not have to mitigate if the T cannot pay he is still responsible
even if the LL does not attempt to mitigate. This is the old common law real property rule that no longer exists (good starting pt,
but no one likes b/c LL burdened when Ts fault)
LL need not be reasonable (no duty to accept sub) LL must mitigate LL may refuse arbitrarily, however he must substitute
for T if T defaults. He must make reasonable efforts to prevent great damages (LL in better position to find new T that LL will
find acceptable, LL has respons to be reasonable. LL might prefer arbitrary refusal)
LL must be reasonable (duty to accept sub) LL need not mitigate Ts have a right to substitute b/c LL didnt create risk so
should have to pay for mitigating. T ought to bring the reasonable substitute if they want to breach the lease. If they do not then
the LL will hold them to the deal.

46

4.
5.

LL must be reasonable (duty to accept sub) LL must mitigate T and LL both share responsibility to mitigate. Limits
reasonability (depends on jurisd); reasonable substitute T (might be more burdensome)
New rendition: LL has duty to accept sub T but T has no duty to offer subs.
If T has duty to offer sub, then b4 T can come to ct and ask that LL mitigate damages, must show Ts good faith effect to get sub
Maybe shift in exceptions depending on Ts responsibility (shift presumption unless T unjustified in leaving)
T pays for cost of mitigation even tho LL may have responsibility: (remodeling, making apt. suitable, pay diff btw what the LL
could get and their contracted rent, T has to pay rent during that time as well)

Issue: deciding factor for which to choose: Shorter term leases, less ct proceedings, flow through benefits (less problems with LT
leases), LL-T similar to purchaser-seller situation in common law, tenant must be wary!
Issue: if T leaves and LL doesnt know T had abandoned. Whats suffic notice?
Have to show intent to see if T abandoned (24-hr (reasonable) notice b4 you enter unless emergency)
LL doesnt have to accept abandonment
If LL attempts to mitigate damages:
o Must treat all available apts =ly
o Advertise it obviously/using std means
o LL has burden to show reasonable effect (document it)
o Rental amt: rental value must be reasonable
o Must keep trying to mitigate (cant give up)
o No excuses for being too expensive (b/c T has to pay for it)
If T defaults and rent higher than Ts old rent, then LL should just accept abandonment, or else T can argue that LL renting on
Ts behalf, and T get upside diff in rent, and only with mkt value dropped, then hold T and T will have to pay rental diff
Usu LL gets compensation for mitigation thru litigation (if LL doesnt litigate), then LL accept abandonment and LL leasing
not on Ts behalf. Usu LL litigates and doesnt accept abandonment if rent value lower

The Tenant Who Defaults

Eviction of tenant:
LL may wish to (i) evict T during term of lease for non-payment of rent or for other cause or (ii) evict the T who holds over after
lease expires. LLs remedies for evicting during and after lease differ (more limited during lease)
A. Termination for breach of covenant: at old C/L, LL had no power to terminate lease if T didnt pay rent; remedy to sue for
rent due; yet now some states give LL power to terminate lease for nonpayment of rent when due (yet for other covenants,
doesnt give LL power to terminate lease and evict T)
(1) Lease provisions: if indep cov rules, then almost all leases contain express provisions authorizing LL to terminate
lease b/c breach of any cov (forfeiture clauses)
(a) Notice of default and time to cure: where nonpayment of rent is basis of forfeiture, then LL must notify T and
give reasonable time to pay. Then LL must notify T that LL will terminate lease before exercising her right to
entry.
Exam tip: If LL wants to terminate lease, then look at lease terms for cov, and then if no
forfeiture clauses, then Ll can only evict for nonpayment of rent and then only if proper notice
procedures are given
(b) Trivial default: regardless of lang in lease, breach must be material/substantial for forfeiture
(2) Waiver: LL may expressly/impliedly waive right to term upon breach (eg. LL accepts rent from T knowing of
breach = waiver)
(a) Reliance on practice of waiver: if LL continually accepts late rent, then might waive right to prompt rental
payments
B. Eviction through judicial process: if LL entitled to evict tenant for breach of covenant or holding over
(1) Suit in ejectment: LL may bring an action in ejectment to recover possession of premises (rarely brought by LL),
takes a while to get to trial
(2) Summary proceedings: where LL can quickly recover possession at low cost (action for forcible entry and
detainer or unlawful detainer)
(a) Notice to quit: b4 bringing summary action, LL must give T notice to quit (eg. 3 days) b/c assume that T
knows hes being unlawful
(b) Issues that can be raised: issues in summary proceedings are very limited (LL must prove that lease has been
terminated, or that she has lawfully exercised right to forfeiture for nonpayment of rent)
(1) Defenses: only D to preserve his possession as T or preclude LL from recovering possession.

47

(2) Modern trend: If LL in breach of statutory duty to repair (or implied cov of habitability), then cts allow
T to use that for no rent. (theory: paying rent is dep on habitable condition of ppty)
Rationale: gives poor tenants better bargaining position to enforce the LLs repair obligations
(3) Constitutionality: state law denies T right to defend on ground that LL has breached her duty to repair
okay. Housing isnt a constitutional right.
(c) Not allowed for purpose of retaliation
C. Self-help: if self-help isnt available & LL uses then LL liable for damages to T and Ts chattel
(1) Common law: permit force to expel T (yet no forcible entry)
(2) Reasonable force permitted: LL may use reasonable force w/o any ct proceeding
(3) Peaceable entry permitted: Defn vary (some say changing locks = forcible)
(4) Self-help not permitted: some prohibit self-help in recovering possession and req Ll to resort to statutory remedy
and if not, liable for damages
(5) Lease provision authorizing self-help: lease may provide that LL is authorized to use self-help in re-taking
possession on Ts default. Most cts hold such a provision valid. A minority hold it void b/c public policy against
self-help
Factors for entry not being peaceful: intimidating factor (bringing police), previous rltship/conduct of parties
Summary proceedings: allow expedited process, yet other issues have to go thru std legal means
Tenant groups: want freely negotiated lock-outs for only commercial property; desire high damages for inappropriate self-help for
LL (yet all costs gets passed on to Ts)
LL situated to have legislative power
LLs duty to not interfere with Ts quiet enjoyment
1.

Covenant of Quiet Enjoyment: T has right of quiet enjoyment of premises, w/o interference by LL. (LLs covenant of quiet
enjoyment, always implied in every lease)
a.

Dependant covenant: Ts cov to pay rent was always dep on LLs cov of quiet enjoyment (if LL breachs, then T doesnt
have to pay rent)
b. Breach: can be breached by either actual or constructive eviction
2.

Actual Eviction: If T is physically evicted from entire leased premiseseither by LL or by someone w/ paramount titlethe Ts
rental obligations cease, and T can terminate lease, and liability for further rent decreases (may college damages to LL for breach
of cov)
a.

Partial eviction by LL: if T evicted from any portion of leased premises by LL, rent abates entirely until possession is
restored. T may stay and refuse to pay rent
(1) Rationale: rent obligation based on Ts possession of entire leasehold, and LL cant just use some part of land (so
penalize LL); other remedies are too costly for T (if law only gives T right to terminate lease and leave, then T may not
find equivalent quarters) deterrence for L
(2) Restatement view: C/L unjust to LL, so T has to pay partial rent (for part they are possessing)
b. Partial eviction by paramount title: T may terminate lease, recover damages, or receive proportionate rent abatement. If T
remains in possession, remains liable for reasonable rental value of portion he possesses.
(1) Distinguish partial eviction by LL: If LL partially evicts T, T may stay in possession and pay no rent, but if 3rd party
evicts, T has to pay in rent if stay in possession. B/c: under recording acts: if 3rd party had recorded, T had
constructive/actual notice, and its unfair to penalize LL for 3rd party exercising paramount rights of which T is aware or
which LL doesnt believe exists
3.

Constructive Eviction: when thru fault of LL, substantial interference with the Ts use and enjoyment of leased premises, so T
can no longer enjoy the premises as parties contemplated. T can no longer enjoy premises so T may terminate lease, vacate
premises, be excused from further rent liability. Has to permanent (freq of occurrence) to see if happens all the time or only at
time when purpose of premises is used
a. Dependent promises doctrine expanded: applies where T is left in possession but Ts use and enjoyment is disturbed.
Make Ts obligation to pay rent dep on LLs performance of her cov of quiet enjoyment (remedy of termination of tenancy).
W/o remedy, T could only sue for damages (costly/inefficient remedy in many situations)
b. Distinguish actual eviction: physical expulsion/exclusion from possession (eg. LL changed locks, bar entry)
c. Elements of constructive eviction
(1) substantial interference: with Ts use and enjoyment (as distinguished from possession actual eviction) reasonable;
cts look at purpose for which premises leased, foreseeability of this type of interference, potential duration of
interference, nature and degree of harm caused, availability of means to abate interference.
(a) disclosure prior to lease: if LL should tell T of known substantial defects

48

(b) tenants knowledge: if T knows of interference b4 taking possession, waived right

(c) notice to LL: prior to claiming constructive eviction, T must give LL notice to remedy situation w/in reasonable
time
(2) Tenant must vacate premises: T cant claim constructive eviction unless/until vacates premises (cant remain in
possession and either refuse to pay rent/receive damages) T takes chance
(a) declaratory judgment: T may still be able to stay in possession and bring equitable action that LL actions =
constructive eviction; permits T to know, before vacating premises, whether Ts justified in vacating
(b) damages after vacation: T vacating premises on constructive eviction terminates lease; damages: T owes no
further rent, & owed diff btw rent paid and reasonable rental value, cost of getting other residence, loss of profits
caused by LLs actions, etc.
(c) Restatement view: rejects that T has to abandon property before claiming constructive eviction. Gives T right: (i)
to terminate, or (ii) to stay on and receive damages or rent abatement or employ certain self-help remedies.
Rationale: T should receive what T bargained for. If Ts only remedy to vacate, then lack option to get what T
bargained for, esp for poor tenant (hard)
(3) Fault of LL: interference of Ts quiet enjoyment must be from act/failure by LL (not by 3rd party unless partys actions
with express/implied consent of LL)
(a) acts of LL: LL must have duty to act and have breached it and cov of quiet enjoyment
(b) acts of other tenants: depends if LL can control behavior of other T and can be regarded at fault in not controlling
it. General rule: LL not responsible for 1 tenant causing annoyance to another (even if same act done by LL would
be constructive eviction and LL can legally control other Ts conduct)
(1) Exceptions: (1) LL duty to not permit nuisance (eg. rent to prostitutes), (2) duty to control common areas
(2) Modern trend: hold LL responsible for other Ts acts if LL has legal ability to correct the conditions and fails
to do so. LL in better position than T to prevent
d. Covenant not to compete: cov by LL that he will not compete with/rent to competitor of T is usu deemed so * =
constructive eviction
(1) Dependant covenant analysis: Why favor noncompetition covenant? Does it create monopoly? B/c, assumption that
all promises of LL resulted in significant inducement to making lease . Restatement: all signif promises, express and
implied, are dep.

T isnt responsible for non demised premises; latent defects (those the existence and significance of which are not reasonably
apparent to the ordinary prospective tenant) not assumed by T
Illegal lease defect at time of lease; substantial defect; LL had to know or should have known about it. (put 1 (a) and (b)
together)
Implied (express) warranty of habitability can stay and w/hold rent.
Key issues:
a. Should parties be able to contract out of warranties of habilitability? (LL not liable for unsafe housing space)
b. How should we measure damages? Thinking: do you try to set damages from perspective of giving incentives to LL not
to be slumlords or compensating victim and can you have it both ways (less likely that LLs will be slumlords and at
same time, protect individ T that has been harmed)

Problems: p. 531-2;
(1) T is tenant at will. L causes a nuisance that interferes with Ts business on the leased premises. T vacates, rents equivalent space
at a higher rent, and subsequently sues for damages on a theory of constructive eviction arising from a breach of the covenant of
quiet enjoyment.
Ans: overlap of what time of lease it is; LL argued that constructive eviction is saying that LL ends tenancy at will with T. But cts
pissed at LL and changed tenancy at will into periodic tenancy and allowed Ts recovery. Importance of type of tenancy. (not
responsible for what ct will go, but see that itll be an issue is important)
(2) In each of following examples, T (tenancy of years) vacates leased premises prior to the end of the term and stops paying rent. In
subseq suit by L for unpaid rent, T asserts defense of constructive eviction, claiming that L breached cov of quiet enjoyment.
(a) L fails to control excessive noise made by neighbors. Is L responsible?
Ans: Yes b/c LL can more readily solve problem. L in better position to remedy and the one who chose Ts. Also can go further to
say that T has right to leave if LL doesnt deal with this
Ans: Not bad enough to vacate premises, yet if so, would you allow for lesser breach? Tenancy advocacy groups: say, this may
cause LL to be overly dominating and oppressive even if other T isnt being noisy, just so LL isnt liable for inaction.
Factors: mkts open or closed LL being competitive or not; where youre willing to take hit here or another area; if T helpless
and LL can bear responsibility
(b) Building in which T leases an apt from L has been the site of crim activity. Problem continues even tho L installs deadbolt locks on
all entrance doors and hires private security guards.

49

LL: may have more influence on govt parties that will reduce crime (LL has job of advocacy on LL); also depends on inherent
risk (purpose/suitability of premises)
(c) Other T is gynecologist w/ abortions, target of ongoing demonstrations. T complained and L does nothing.
LL: does knowing Ts purpose/suitability of premises, then is LL responsible? LL in best position to deal with it and should have
known of purpose of premises
Implied Warranty of Habitability current law?
1. Landlords Duty at Inception of the Lease
a. Common Law: no implied cov by LL that premises are in tenantable condition or fit for purposes intended. let the
lessee beware. T must inspect premises b4 he buys.
(1) Exceptions:
(a) Furnished house for short-term
(b) Hidden (latent) defects: known by LL and not easily discoverable
(c) Building under construction: lease executed before building finished
(2) Independent covenants rule: even if express warranty of suitability or habitability, T must overcome indep
covenants rule (where T not excused from performance (paying rent) by LLs breach)
b. Implied covenant of habitability: yet now cts allow implied cov of initial habitability and fitness in leases of urban
dwellings, including apts. Dependant covenant doctrine: T relieved of rental obligations when LL breaches. Compare
habitability at inception of lease v. continuing cov of habitability
(1) Various rationales: (1) modern urban residential tenant (doesnt have time to inspect and put in tenantable
condition, (2) LL knows more about defects than T, (3) housing codes not effectively enforced (more
effective housing code enforcement gives Ts right to sue) Constructive eviction not remedy for housing
shortage, (4) b/c housing shortage, Ts have less bargaining power than LL
(a) Criticism: placing duty on LLs leads to increased rent, or abandonment by LLs, or less investment
into new housing (end result: less housing for poor, less low-income housing result in govt
providing more housing for low-income persons)
(b) Commerical leases: applicable to small commercial or office tenant (trend towards using for comm.
as well)
(2) Scope of warranty: scope hasnt received much attention
(a) Latent defects only: some cts say LL respon for latent defects only; doesnt mean much tho if LL
responsible for maintaining premises in tenantable condition (remedying all defects): yet if patent
defect, then LL may argue that T waived it when he discovered it b4 signing lease
(b) Housing code: local housing code sets std of LLs duty (substantial violation of housing code is
violation of implied cov of habitability). Restatement: leased property is unsuitable for residential
purposes if it would be unsafe or unhealthy for the tenant to enter on the leased property and use it as a
residence.
(3) Remedies for breach: usu K remedies of damages, restitution, rescission; also use rent for repair/rent
w/holding.
(4) Waiver by Tenants: May T waive implied warranty of habitability? May be against public policy (if unsafe
or unsanitary). Also its to encourage enforcement of the housing code by Ts, Ts may not be able to waive
code reqments (dont permit waiver of a substantial breach)
(a) Analogy to contract law: cts trying to pressure LLs to rehabilitate dwellings (to upgrade housing
stock)
c. Statutory duties: statutes to impose on LL affirmative duty to put residential premises in tenantable condition prior to
leasing them
d. Illegal lease: if LL knows of substantial violation of housing code, then if code prohibits rental of premises, then LL
cant enforce cov to pay rent (LL can only sue for reasonable rental value of premises as they exist)
2. Landlords Duty to Repair After Entry by Tenant:
a. Common law: no duty to maintain and repair premises (when before agricultural ppty)
(1) LLs covenant to repair: if by agreement, then LLs cov to repair indep to rent payment cov.
b. Implied covenant of habitability: most cts imply continuing cov of habit in urban dwellings. Dep cov as well
(1) Rationale: T bargains for, expects to get continuing svcs, including mainten
Commercial leases: most likely implied w/ continuing maintenance when office in building, not entire
building
(2) Scope of warranty: breach of implied warranty
(a) Housing code: substantial violation of housing code
(b) Fit for human habitation:
(3) Notice to LL: most cts allow reasonable time to repair (fault std)
(4) Remedies for breach:
(a) Terminate lease: vacate premises, recover damages (relocation costs, FMV of lease diff btw agreed
rent and FMV rent)

50

(b) Continue lease and recover damages: continue lease & recover damages (rent reduction)
1) Pay-for-premises-as-is rule: T only pay for value he is receiving (as is): agreed rent FMV
of premises as is (yet doesnt motivate LLs to rehabilitate
2) Loss-of-bargain rule: give T what he bargained for (measuring damages by FMV if they had
been warranted FMV as is)
3) Damages for discomfort and annoyance: some give emotional distress if accompanied by
physical damages
(c) Continue lease and use rent to repair: some jurisd allow T to use some rent to repair (reasonable
amt)
(d) Continue lease and w/hold rent: may put rent into escrow yet wait until default eliminated
1) Distinguish retaliatory eviction: if LL evicts T b/c T complains about violations of housing
code
(e) Defense to LLs rent action: dont pay rent (?)
1) Distinguish non-rent action: only defense of eviction is if LL retaliating against Ts acts
(5) Waiver by tenant: waiver not permitted b/c primary purpose of implying obligation is to give T power to
enforce housing code and would be against public policy
(a) URLTA view: said can waive if in separate agreement and supported by adeq consideration (reduced
rent); but only for minor repairs, not to cure housing code violations
(b) Restatement view: may decrease LLs obligations unless agreement is unconscionable or signif
against public policy
c. Statutory duties of LL: maintain residential premises in habitable condition
(1) URLTA: fit/habitable condition (no distinction btw patent/latent conditions)
(a) Repair and deduct
(b) Essential services
(2) New York statutes
(a) Abatement of rent after 6 months violation
(b) Rent w/holding
(c) Receivership
d. Retaliatory eviction: If T reports LL for violation of housing code, and LL might try to evict T or refuse to renew lease
at end of term. D against eviction, even in summary eviction proceedings
(1) Interference with statutory right: b/c then Ts wont report LLs (essential for effectiveness of housing
codes)
(2) Interference with judicially created right: extend to where T complains to LL about violations of LLs
responsibility
(3) Proof of motive: burden of proof on T
(a) Retaliation by rent increase: even if LL tries to be indirectly by increasing rent
(4) Tenant in default: cant claim if in default of rental payments
(5) When LL can evict: if LLs primary motive isnt retaliatory then can evict
(a) LL stops utilities: still have to pay utility bills
(6) State statutes: some states prohibit retaliatory acts and some extend that defense to commercial tenancies
Does cov of extra amenities warranted not kept yet still able to live in apt extend to IWH?
Ans: yes b/c rent based on access of extra amenities, so can w/hold rent and makes IWH applicable
Ans: no, not covered under IWH (suitable premises), b/c other remedies (K breach) yet unlikely to bring lawsuit for this; if T wants
certain things covered, then should have concerns codified
p. 542 (4) (a)
Janitorial staff goes on strike and garbage piling up); cts allow for punitive damages, does LL breach responsibility?
-question over city strikers v. own employees; LL responsiveness v. degree of problem
rejected: if LL didnt do it, LLs not responsible
accepted: should be included yet LL shouldnt be limitless: however, depends on whether LL has control of situation
(proximity); reasonableness std (LL has other avenues to address this and best position to address overall problem)
Appropriate measure of damages?
1) Fair market value (FMV) as warranted
-FMV as defective damages
2) Agreed rent
-FMV as defective damages
3) FMV as warranted
-agreed rent: damages
4) Percent diminution of value

51

Issue of autonomy: should people be able to choose whether housing important over having new shoes?
p. 543 (4) (b) LL wrong in not keeping promise, yet if not with fit for human habitable housing for people, and therefore doesnt fall
under IWH. IWH was radical when introduced, and resistance to extend it to commercial ppty.
Concern with IW that are open-ended (implied), fights with trend to state something explicitly in contract, give windfall to T who
gets benefit of implication
yet other option is cov of quiet enjoyment: b/c can stay (most likely with commercial ppty);
some juris have Implied Warranty of Suitability (IWS) and w/holding rent for unsuitable ppty (with commercial property)
cov of quiet enjoyment (can be used in circum not with constructive eviction)
If its really badthen can use constructive eviction. For lesser breaches, can sue for breaches in cov of quiet enjoyment.
Some jurids: implied cov of quiet enjoyment, and then use same remedy as IWH or IWS.
Options: Constructive eviction, sue for damages, IWH
% diminution of value: for tenant (gravitating towards that direction)
Reasons why agreed rent as defective higher then FMV as warranted:
(near bus route, multiple occupancy, supply-demand problem).
-trying to solve social problems (dilapidated housing), so any one case doesnt give enough background for cts to solve problem
-argument that LL may manipulate initial rent so % of diminution of value (kick back) doesnt hurt LLs
-if all youre concerned about is preventing gauging then okay but if you want to apply to expansively for housing, then need to
account for fair mkt value (lots of evidence required, so should go to legislature for problem solving)
-FMV as defective and agreed rent take into account other factors than just defectiveness yet best bet though.
-value of agreed rent (b/c fewer problematic data points how much most would pay for this dump and how much you paid for
this dump) as opposed to FMV has two data points ((1) as warranted and (2) for this dump)

52

Recording Acts
Four methods of title assurance are used in the US:
1. Grantors express warranties of title contained in deed oldest method, inherited from the English
2. System of the recording land titles this involves an actual search of public records in the countys
recorders office. Each state has some kind of recording system.
3. Title registration (Torrens system) this is available in only a few states and registers title to land,
rather than evidence of title (as w/ recording statutes).
4. Title insurance this method is increasing in use and insures good title, eg. insures the accuracy of the
records by agreeing to defend the record title if litigated.
Factors to determine the rights of the parties in this situation, consider:
1. The language of the recording act (race, notice, race-notice) or registration statute.
2. Whether any party has bona fide purchaser status (i.e., a purchaser or mortgagee who has no actual,
record, or inquiry notice at the time he gave consideration).
3. The effect of any unrecorded or unregistered instruments, any errors in recording or registration, and
who bears the costs of those errors (grantor, grantee, title insurer).
A. Recording System
1. Common Law Rule Prior in Time: now recording act to protect bona fide purchasers of land from
secret unrecorded claims. Previously, it was prior in time prevailing over one subseq in time (b/c if O
already conveyed land to A, then nothing left to convey to B). Then purchasing land is risky b/c B has
no way of discovering OA conveyance.
a. Exception in equity: if prior interest was equitable, and therefore w/in jurisd of equity court, equity
would not enforce it against a subseq purchaser of a legal interest who did not know of prior
equitable interest and paid valuable consideration. (I think this means that if O conveyed to A and
then to B, then A would get the valuable consideration that B gave to O, b/c As the legitimate
owner.)
2. Recording acts In General: Yet this encourages fraud by grantor and imposed losses on innocent
subseq grantees. So stated recordation: to give notice to the world. Recording necessary only if more
than one grantee contesting title, not to validate deed btw grantor and grantee.
3. Mechanics of Recording:
a. Filing copy: grantee gives deed to recorder who stamps time and then makes copy and records it
and original deed given back to grantee.
b. Indexing: entering notation in index book, showing in which deed book the deed can be found
reproduced in full. (like Dewey decimal system). Usu grantor-grantee indexes, not tract indexes.
1. Grantor and grantee indexes: separate index volumes for grantors/grantees, enabling title
searcher to locate instrument by searching under either grantors name or grantees name
(chronologically + name of grantors name alphabetically).
2. Tract index: in urban areas where land platted and broken down into blocks/lots, entries under
block/lot number. Simplifies title searches b/c entries deal with specific parcel of land.
c. Title search: If O contracts to sell Blackacre to A, then prior to closing, title search made to assure
A that O owns Blackacre and to see if any encumbrances on Os title.
1. Tract index search: if tract index, just look at block/lot describing Blackacre (see prior
recorded instruments conveying, mortgaging, or otherwise dealing w/ Blackacre.
2. Grantor-grantee index search: first look at grantee index to find from whom each prev owner
took title and then go to grantor index to ascertain what transfers each owner made during his
tenure. O conveys to S.
(a) Grantee index: S goes to grantee index, under O and then goes backwards
53

(b) Grantor index: having discovered previous owners of Blackacre, S turns to grantor
index to determine ehther any of these prev owners conveyed any interest in Blackacre
b4 conveying the fee simple to the next owner. In grantor index, S looks under each of
the owners names from the day title came into the owner until the day of recordation of
a deed from the owner. (In some jurisd, S will have to search a longer period of time
under each owner)
(c) Death of owner: title can also pass by will or intestacy. Assuming B died & left
Blackacre to C and then C died and left to D (recorded in testators or decedents
index). D, who took title from C by intestate succession has no recordable doc signed
by C (to perfect title, Cs heir, D, will file affidavit of heirship, prepared by D saying D
is sole heir. However, if D is lying and 2+ heirs, then affidavit cant adversely affect
another heir who is not disclosed thereon. Burden is on subseq purchaser to make sure
that he has a deed from all persons who are Cs heirs (any heir who does not sign the
deed retains his/her interest.)
3. Negligence in search: title searcher is liable for neglig in search.
4. Types of Recording Acts:
a. Race statutes: who records first, notice is irrelevant.
1. Rationale: evid of notice may be unreliable. So title searcher should just rely on records yet
inequitable to have person with notice of prior claim to prevail (so few jurisd have this)
b. Notice statutes: cts thought unfair/fraud to allow race jurid, so cts say race jurisd to apply to a
subseq purchaser for valuable consideration w/o notice. Under modern notice jurisd, subseq bona
fide purchaser wins under notice statute if he has no actual or constructive notice of prior claim at
time of conveyance. A conveyance shall not be valid against any subseq purchaser for value, w/o
notice thereof, unless the conveyance is recorded. (50% states have this jurisd) regardless of
whether subseq purchaser records at all.
c. Race-notice statutes: protects only subseq purchasers without notice of prior claim only if he
records before the prior grantee. A conveyance shall not be valid against any subseq purchaser for
value w/o notice thereof, whose conveyance is first recorded. In 50% of states.
5. Effect of Recordation
a. What recordation does: proper recordation gives grantee protection of the recording system.
After recordation, all persons who thereafter take an interest in the land have constructive notice of
existence and contents of recorded instrument, and no subseq purchase w/o notice can arise. Also, in
a race-notice jurisd, b/c grantee is not protected against prior unrecorded claims until he records,
recordation protects the grantee from prior unrecorded claims as well as eliminates the possibility of
a subseq bona fide purchaser.
b. What recordation does not do:
1. Validate invalid deed: no necessary for a valid conveyance. Recordation raises a rebuttable
presumption that the instrument has been validly delivered and that it is authentic, but if forged
or not delivered, recordation will not validate it.
(a) Deed fraudulently procured: if deed from fraud, deed is void or voidable btw
grantor-grantee. If grantee conveys to a bona fide purchaser, the bfp prevails over the
grantor if the grantor was suffic neglig to create an estoppel.
2. Protect against interests arising by operation of law: statute applies only to unrecorded
conveyances. (not for dower rights, prescriptive/implied easements, title by AP)
c. Effect of failure to record
1. Prior-in-time rule: common rule, prior in time, prior in effect.
2. Power to defeat left in grantor: can defeat deed by executing a subseq deed in favor of a bfp
(logical/subseq deed in favor of a bfp).
3. Suit against double-dealing grantor: if person loses land b/c fails to record, person can sue
grantor who conveyed twice and recover under theory of unjust enrichment the amt that the
grantor received from subseq purchaser.
54

6. Requirements of Recordation
a. What can be recorded: deed, mortgage, K to convey, etc, also lis pendens (notice of pending
action) can be recorded (to give constructive notice)
b. Acknowledgments: deed must be notarized. (offers protection against forgery). Some also need
witnessing.
c. What constitutes recordation: fact that an instrument has been copied and entered in the
recorders office does not necessarily mean that the instrument has been recorded. Instrument
must be entered in the recorders books in a manner complying w/ the applicable statute or judicial
decisions.
1. Failure to index: clerk fails to index instrument properly. One view protects grantee, other
protects subseq bfp b/c didnt have suffic constructive notice to a subseq purchaser. 2nd view
better b/c practical that if instrument not properly filed and indexed, then no reasonable way to
locate it, and grantee can check if properly recorded (could prevent the loss).
(b) Indexing under misspelled name: prev, names that sound similar gave constructive
notice, but now diff names are seen as not giving constructive notice
(1) Diminutives: some less-populated states say that id-ing party by diminutive
name (Bob instead of Robert) gives constructive notice. Might also have to
look at erroneous middle initial.
(c) Mother Hubbard clauses: provision in a deed that attempts to sweep w/in other
parcels not specifically described. and all other lands I own in Henry Country.
usu not valid against subseq purchasers of undescribed land b/c conveyance only
indexed under described land (so undue burden reqd by title searcher to read all
conveyances of other lots by an owner of subj lot to see whether conveyances affect
subj lot).
2. Recording unacknowledged instrument
(a) No acknowledgment: no constructive notice to subseq purchasers (unless
actual/inquiry notice, then subseq purchaser prevails)
(b) Defective acknowledgment: if recorded instrument defective but not apparent on face,
then better view that recordation gives constructive notice. Some dont allow
constructive notice. So in race-notice statute, no later instrument in chain can be
deemed properly recorded so as to defeat a prior unrecorded claim.
(1) Criticism: hidden defect in an acknowledgment should not make deed
unreliable. For recording system to work efficiently, purchasers must be able to
rely on what appears to be a perfectly recorded doc.
7. Who is Protected by Recording Acts:
a. In general: only BFP protected under notice and race-notice jurisd. To be BFP, person must: (i) be
a purchaser (or mortagee, or creditor if the statute so allows), (ii) who takes w/o notice (including
actual, inquiry, or record notice) of prior instrument at the time of the conveyance, and (iii) gives a
valuable consideration. C/L: first in time prevails; race jurisd: notice irrevelant, but race statue
protects only subseq purchasers for a valuable consideration who win the race to record.
b. Purchasers
1. Purchasers and mortgagees: mortgagees usu protected b/c have security interest in property in
exchange for value.
(a) Shelter rule: person who takes from BFP will prevail over any interest over which the
BFP would have prevailed. This is true even where such person has actual knowledge of
prior unrecorded interest.
Ex. O A, then O B (BFP), B records, and then B C. If B prevails over A, then C
also prevails over A (even if C knows about As interest).
(1) Rationale: if the rule was otherwise, a BFP would not receive full protection of
the recording statute. Transferee from BFP is protected, whether or not meritous,
55

in order to give BFP his expectations arising from his reliance on the records (for
BFPs benefit).
2. Donees: usu donees dont fall under protection of recording system b/c they dont give value
(considered unfair to take property away from A and give it to B if B does not give consideration
for property). Yet held that recording statute is broadly worded to include any class of persons
w/ any kind of rights, donees are entitled to the protection of the recording system. Unless
stated otherwise, recording acts generally dont protect donees. And btw donees, usu use C/L
rule (prior in time) to facts, not recording statute.
3. Creditors: recording acts vary considerably.
(a) Creditors not protected: if not protected, then can only claim protection if purchase
debtor-owners interest at a judicial sale following an action to enforce the debt.
(b) Act extends to creditors or all persons: to all yet since general creditors dont rely
on record when extending credit, arent protected. Only include judgment or lien
creditors (protects only against prior interests arising under instruments capable of being
recorded. We didnt go over this.
(c) Purchaser at execution sale: purchaser at a creditors execution sale who does not have
notice of prior unrecorded instrument takes free of any claim under the instrument. A
judgment creditor has shelter (if no record at time of sale).
c. Without notice: For notice, race-notice juris, subseq purchaser needs to be w/o notice (no actual,
record, or inquiry notice of prior claim at time he paid consideration and received his interest in the
land.
1. Actual notice: actually knows of prior instrument (if have, not BFP).
2. Record notice: if instrument properly recorded, then any subseq purchaser has record notice
(constructive notice)
3. Inquiry notice: sometimes, purchaser reqd by law to make reasonable inquiries (and charged
with notice for whatever the inquiry would reveal, even tho never made inquiry). Some states
(MA) only have actual and constructive/record notice.
(a) Inquiry for quitclaim deed: some req (b/c its a conveyance of everything someone
has, but doesnt claim that they validly have everything), yet majority of states dont req.
(b) Inquiry from possession: Does B have to check if current possessor has possible claim
for Blackacre when B is purchasing Blackacre?
(1) Majority view: B, subseq purchaser, is charged with knowledge of inquiry notice
by inspecting property
(2) Minority views: (1) actual notice, (2) B only reqd to make inquiry notice if B
has actual notice of As possession, (3) if possessors present possession consistent
with record title, then no inquiry notice required (if A possessor has life estate
and A & B fighting about future possessory interest)
(c) Inquiry from neighborhood: doctrine of implied reciprocal negative easements
(negative restriction on use may be imposed by implication on a lot in a subdivision, even
tho deed contains no restrictions and only way to find out is by looking other deeds in
neighborhood. (scheme from which a restriction will be implied on the purchasers lot.
[Sanborn v. McLean]
(d) Inquiry into unrecorded instruments: if recorded instrument refers to unrecorded
instrument, then purchaser has obligation ot make inquiry into contents of instruments,
(yet MA only requires actual notice, so this doesnt apply)
d. Valuable consideration: more than nominal value yet doesnt have to be mkt value of property, not
from love and affection.
Exam tip: purchaser is protected by a recording statute only from the time consideration is paid
(first consideration).

56

1. Distinguish common law: try to distinguish btw donee (not protected) and purchaser
(protected), and thus consideration must be substantial monetary value so that its equitable to
deprive another person of land.
2. Antecedent debts: person who receives deed/mortgage as security for a preexisting debt has not
given valuable consideration at time the deed/mortgage is executed. Person not at that time BFP
for value.
(a) Creditors give new consideration: yet if creditor gives new valuable consideration (usu
in form of worsening his legal position)like giving someone more time to pay loan,
then gives valuable consideration and so prevails over subseq purchasers.
3. Partial payments: if purchaser only had paid part of the purchase price, then cts only protect
purchaser only to the extent of payment made (either give subseq purchaser a lien on land for
amt paid or give prior grantee lien to the extent that balance owed.
8. Chain of Title Problems: even if recorded and indexed, sometimes instrument not recorded so give
notice to subseq purchasers (not in chain of title). Problem only arises with grantor/grantee indexes.
a. Chain of title defined: purchaser charged with notice of those conveyances of property by grantor
recorded after the grantor acquired the property from his predecessor in title and recorded before
a deed is recorded conveying title from that grantor to another.
1. Extended chain: some jurisds chain of title is defined to include, in addition to the above
conveyances, other conveyances (from grantor to present date for any subseq conveyances).
2. Wild deeds: recorded deed to the property which is not recorded w/in the chain of title.
B. Grantor not connected to chain of title: if deed entered on records has grantor unconnected to the
chain of title, such a deed is not recorded w/in the chain and does not give constructive notice.
C. Deeds recorded before grantor obtained title estoppel by deed: looking at grantor prior to date title
came into grantor to see if the grantor gave an earlier deed to property to which the doctrine of estoppel
by deed applies (can record deed w/o having title and then record title).
Example: O owns Blackacre. A B (B records), O A (A records), A C (has no notice of
AB b/c recorded before A records). Who prevails?
1. Majority limited search required: C prevails over B b/c A B isnt in chain of title;
Rationale: would put excessive burden on title searcher to req search of index under each
grantors name prior tot date the grantor acquired title.
2. Minority extended search required: B prevails over C. Rationale: under doctrine of
estoppel by deed, if grantor who does not have title later acq it, it passes by operation of law
immediately to grantee. So when A acqs land, its already with B, so A has nothing to transfer to
C. So then C must search title prior to time each grantor acqd title to ascertain whether an
estoppel applies against the grantor.
a. Deeds recorded late: Example: O A (doesnt record); O B (donee, who records, but doesnt
prevail over A), A records, B C (who has no actual notice of As deed). C records. Who prevails?
1. Limited search required: In most states, C prevails over A. Rationale: If A prevails, title
searcher would have to look in indexes under the name of each grantor in the chain of title to
present date (not just the date of the first recorded deed from each grantor) to see if there was a
deed executed before the first recorded deed but recorded later. (excessive burden on recorder).
2. Extended search required: minority of states (CA and NY), As deed gives notice to subseq
purchasers, although recorded after Bs deed (title searcher must search for all grantors to present
date under the name of each person who ever owned the property to pick up deeds recorded late.
(costly)
b. Deeds from common grantor of adjacent lots: Does purchaser have to look at other lots from
grantor who owned a big section with many lots for constructive notice for easements/covenants?
Cts split: some say burden of title search would be too much, (deeds not in purchasers chain of title
dont count) while other say B should read all deeds from common grantor and has constructive
notice.
57

2. Defects in the Recording System

a. Criticisms:
1. Public records contain incomplete information: even with good record title, person can be
defeated as result of a defect of fact/law not ascertainable from recorded doc (forged deed, deed
with faulty acknowledgment by notary public, AP claim)
2. Public records are inefficiently organized: grantor-grantee index old, tract index better.
3. Expense: costly to get title searcher for every time property sold.
b. Remedies:
1. Title standards: adopted by the local/state bar association (provide that specific kinds of
defects shouldnt be challenged).
2. Curative acts: short SoL to make something properly recorded if its been recorded for 10
years.
3. Tract index: solves chain of title but not inquiry notice, and whether instrument effectively
recorded and indexed
4. Marketable title acts: limit record searcher to specified number of years (usu 30-yrs). Under
30-yr marketable title act, if a good record chain of title is found based on a root of title more
than 30 yrs old, any claims arising prior to the root of title (with some exceptions) are nullified.
All interests created prior to 30 yrs are void.
(a) Root of title updated: root title may change as years go by.
(b) Pre-root interests: pre-root interest is valid if it is referred in the root of title or in a
post-root instrument (if 1967 deed refers to 1928 easement in Deasement is valid).
(1) Rerecording: pre-root interests can be preserved by being re-recorded w/in the 30year period.
(2) Exceptions: public easements, observable easements, utility easements, restrictive
covenants, and mineral interests (so impair usefulness of marketable title act)
(c) Possession: under most of the marketable title acts, rights of the possessor are not
barred. (So purchaser should make a physical inspection of the land).
(d) Constitutionality: b/c social usefulness outweighs impairment of old private rights (like
SoL, barring enforcement of a right unless the right is rerecorded w/in period of search
(1) Rerecording requirement: statute providing that a mineral interest that has not been
used for 20 years is extinguished unless the owner rerecords the interest w/in 2 years
has been held valid by SCt.
RECORDING ACT
Hint for test: Write timeline (worth your time, write in shorthand)
Recordation Value: in case someone conveys land more than once
Okay if isolated community (like Chinese community)
1) Constructive notice: shows chain of title and present record owner as oppose to transactional owner.
Doesnt protect against AP claim
2) Repository: saves your record in case you lose yours
3) Forces a writing: forces you to clarify key items (details: surveying land, grantor/grantee & reqs
notary)
4) Irrevocability: cant take back and toy with people (for grantor mostly)
Derrick case (hand-out): when is something properly recorded?
RECORDATION
serious consequences: important in underlying validity of transaction itself
main purpose: make transaction irrevocability as oppose to constructive notice
58

intent: not intended to protect those who dont know about previous conveyances (b/c have constructive
notice)
In order to record, have to fill in all gaps in chain of title to give subseq purchasers notice.
Three types of notices: (1) actual, (2) constructive, (3) inquiry notice

Diff jurisdictions (determines what you had constructive notice of)

1) Minimal search jurisdiction rule: Gone backwards in time for grantee index and then go back down
from grantor index. Yet record by date of recordation as oppose to date of transaction. Arranged in
order of recordation as oppose to order of conveyance.
2) Extended search rule: Place burden on title searcher to look at all conveyances for grantor present
time. (in case recordation later than first conveyance) stay in grantor index longer
Common law rule: once you convey something, you have nothing left to convey to someone else, but
recording act puts more burden on buyer to protect themselves (by recording and making sure they are
getting from true owner).

Luthi v. Evans, p.668

Mother Hubbard clause: no specific description of all ppty whether or not the same are specifically
enumerated above (v. require specific description.)

did it give sufficient notice (b/c just said, and the rest of the land)? Should person who
gets grant under Mother Hubbard clause re-record with specific identification?
Race: whoever is first to record
conveyances for valuable consideration void against any subseq purchaser (donees dont count) whose
conveyance is first duly recorded.
Example: O A (doesnt record), O B (records), A is knocked out if B is subseq purchaser for valuable
consideration but not donee
Notice: whoever is last good-faith purchaser in chain
no conveyance good against subseq purchasers for a valuable consideration and w/o notice
Example: O A, O B, if B a good faith purchaser (no notice of A), then can knock out A. If B has
notice, then B loses land to A.
Three types of notice:
1) actual notice,
2) constructive notice (find in records, do search and find, level of search depends on jurisd),
3) inquiry notice (would reasonable person have asked, AP is in inquiry notice should has asked, Mother
Hubbard clauses would have made you ask)
Race-notice: whoever is last good-faith purchaser who recorded
Conveyance in void against subseq purchaser in good faith and for valuable consideration whose
conveyance is first duly recorded.
Have to record and be in good faith (encourage recordation) timing issues.
Orr v. Byers, p. 678
Idem sonans misspelled name does that give constructive notice? How much search do we req? Should
grantee w/ misspelled name have re-recorded?
Problem, p. 683;
59

2) Elizabeth Taylor (owns Whiteacre), gives mortgage to Carol Burnett as Elizabeth Taylor Fisher and then
later conveys to Adam Sandler under Elizabeth Taylor. Sandler had no actual notice of Burnetts
mortgage. What about if it were Taylor-Fisher?
Ans: Burnett should have recorded it under Taylor and Taylor-Fisher. Burden on first-in-time grantee (burden
that goes beyond paying money and getting deedburden to monitor property and recordation)
Example: O A and then O B. A C, and then C records. C doesnt know about B. C should have rerecorded if name different.
Issue: (mortgage interest)
When are purchaser: when you pay off mortgage or when deal is made? If youre not purchaser until all
debt is paid, then you cant avail yourself against 2ndary purchaser.
Donees are not purchasers, cant avail themselves under the Recording Act
Donee: If first-in-time and record, then protected, yet if already first-in-time purchaser and donee gets after
that, then donee not protected under Recording Act b/c not considered purchaser.
Example: O A, B wants Os land and will forgive Os debt incrementally on a yearly installment basis?
When is B a purchaser? Depends on jurisd (look above in Gilberts notes)
Example: O A (no record, doesnt provide constructive notice), O B (need to know if valuable
consideration, good faith, notice, recorded, what jurisd). Who prevails?
1) In race jurisd, valuable consideration & recorded.
2) In notice jurisd, valuable consideration & notice
3) In race-notice jurisd, valuable consideration, good faith, notice, record
A records, then B records.
1) In race jurisd & race-notice jurisd, A wins.
2) In notice jurisd, B wins b/c last good faith purchaser.
Then A records and A C (paid $ and no notice). B records. C records.
1) In race jurisd, A prevails and then C.
2) In notice, C is protected b/c last GFP.
3) In race-notice jurisd, C wins over shelter rule
Shelter rule: C should be entitled to deal with someone who has done everything correctly.
Also, even though C may have notice of B, A should be allowed to capture what she got from
recording and giving notice in race-notice jurisd.
Example: O A (no record), O B (no record), A records.
Scenario 1
A C (valuable consideration, no notice of B, didnt record). B records. C records.
1) In race jurisd, A and then C prevails (chain of title)
2) In notice jurisd, C prevails b/c last GFP and isnt reqd to record first.
3) In race-notice jurisd, C prevails b/c A recorded before A so A already knocked B out, and then A sold
to C.
Scenario 2
A C (valuable consideration, notice, didnt record). B records, C records.
1) In race jurisd, A and then C prevails (chain of title)
2) In notice jurisd, B prevails since C has notice so cant use recording act (not GFP)
3) In race-notice jurisd, C prevails b/c C sheltered by As GFP. Shelter rule designed to allow A to
profit from property (b/c A did everything correct), even if C isnt a GFP.
Two types of cases in Race-Notice Jurisd
60

Case One
O A (no record), O B (good faith purchaser, defective acknowledgment),
B C (good faith purchaser, record)
Ans. Cts say that if prior defective acknowledgment, then B and C cant avail to recording act (so A gets)
Case Two
O A (records, defective acknowledgment), O B (GFP)
Ans. First in time person has defective acknowledgment yet would take a lot to get A off ownership b/c O has
legit claim to property. Whether B had (constructive) notice of A depends on jurisd (if jurisd reqs that doc has
to be good to give constructive notice). Issue of: is it actual or constructive notice as reqment (b/c with
defective acknowledgment, will have actual notice). Yet unfair to hold people respons for things they wouldnt
even know about.
p. 696 Example 7
O A (no record), A B (records with A-B deed)
O C (records) --- C isnt going to see A-B transaction b/c not attached to land O has.
Records = elim possibility of subseq good-faith purchaser b/c you have to record entire chain of title. So for B
to record, have to record O A and A B, so C has constructive notice.
p. 705, (2)(a);
A B (no record), O A (no record), B C (recordsdidnt completely chain of title), A D
(records & D is shown the deed from O to A), O E, who records
1) race jurisd: E gets (records from O first)
2) notice jurisd: OE (last GFP)
3) race-notice jurisd: E b/c last GFP who recorded)
Estoppel from deed: commit something you dont have yet (A conveys what O will give to A before A
received AB), law usu protects people who only see chain of title (dont req people to look outside chain of
title too burdensome)
Old rule: If O A in 1/03; and then A B in 11/02, then if A C, C responsible to go back in time to look
for A as grantor before O A.
New rule: O A in 1/03, then A C then C only has to look up to 1/03. Better for purchaser.
Shelter Rule: for only race-notice jurisdictions.
Example: O A (no record), O B (no notice), B C (notice knows of A);
C is still considered last GFP even tho BFP in order to protect B (GFP)
Example: O A (no record), O B (notice), B C (notice)
B and C dont get anything b/c both BFPs.
Tips: keep track of who is tracking with whom.
Exam: keeping this depth of transaction (dont have to follow through)
Assumption: Assume that youre in a jurisd with a shelter rule
b. O A (no record), O B (notice of OA and does not record), O C (doesnt record), B D
(doesnt record and sees deed of O B)
A records, B records, D records
1) race jurisd: A
2) notice jurisd: D under shelter rule (last GFP)
3) race-notice jurisd: have to lock down by recordation so A has land (A = first GFp who locked it
down)
61

If after D records, A E who records.

1) race jurisd: E
2) notice jurisd:
Minimal search: E (b/c last GFP and complete chain of title) If look at minimal search
(only look to see OA and then stop, and then look for A anyone else.
Extensive search: E will see that O conveyed to A and B, and then B D so E has
constructive notice of O to A and B
HAVE TO DO THIS STILL! ARGH GARG!
Guillette v. Daly Dry Wall, Inc., SCt of Mass, 1975, p. 699;
O (plan)
/ | \
A, restricted by one-family residential
\
B, plan, no restrictions \
|
C
D
Hypo 1: Even if Ds deed has no mention of plan, can find through shot up from B O
Hypo 2: Before anything else took place, then restriction to A is all retained land is restricted. Then your land
is restrained by that point (hard if 50 deeds out), cts require you to find deed 50 to find restriction in 50th deed
[big burden for buyer]
Hypo 3: Require searcher (100 lots with willy nilly plans), no reference to lots becoming similarly restricted.
Hold you to responsibility of looking at all lots deed and its restrictions, should be able to tell from patterns that
there was plan and how piece of property matches up with plan. HUGE RESPONSIBILITY MINORITY
opinion, b/c paying money thinking they are getting unrestricted deed.
Who is to account to lost of property to D? (b/c paid more for unrestricted land.) D would have to pay for loss
(probably cant sue title searcher as well).

62

Chapter: Easements and Covenants

Exam Hint: when diagramming, when looking at particular dispute, have to make sure you know who is
burden/benefit party in actual dispute youre dealing with.
Tip: FIGURE OUT WHO IS SUING WHO (WITH MUTUAL BENEFIT-BURDEN, BECOMES
IMPORTANT TO UNDERSTAND WHERE BURDEN IS IN LAW SUIT)
1)
2)
3)
4)
5)

Enter upon Bs land (easements)

Enter upon Bs land and remove something attached to the land (profits a predre)
Enforce a restriction on the use of Bs land (covenant)
Require B to perform some act on Bs land
Require B to pay money for the upkeep of specified facilities (equitable servitude)

A. Easements
right to enter someone elses land
Irrevocable/indefinite v. revocable licenses
Servient tenement estate: burdened (A)
Dominant tenement estate: benefited

(B)

Easement appurtenant: if easements benefits owner (dominant tenement) in the use of another tract of land,
remain on land regardless of who owns tenements (easy to buy out Bs easement if you choose since
connected to land of dominant tenement person who benefits), right as owner, occupier of land
Easement in gross: limited b/c not connected to land, but just gives someone right to use servient land (eg.
landowner, resident, fire departments), not from virtue of owning land but having business allows them to come
on property irrespective of owning land
Statute of Fraud: if conveying interest (over $500), need to be in writing, b/c youre taking away a right to
exclude someone, dont want to give this lightly (thru speculative oral discussion), exception: equitable
servitudes (b/c just not fair), implied easements, prescriptive easements
Maintenance: payment for repairs (who pays for the entire repair + spell out of conseq damages of someone
elses doing something negligently, what expenses will be based on.)
Default rule (dominant owner): If you dont spell out, default rules: easement owner has to maintain
easement. (starting point)
Default rule (servient owner): duty to not interfering with easement owners property.
But in writing, can spell more things out, and can arg about ambiguity if youd like still.
Arson: some are gone if structure they use is burned down (some say arson doesnt remove easement and
maybe ST has to recreate structure, or others allow to eliminate easement)
Public policy: easement created by not by writing can be terminated b/c heavy burden to DT w/o agreeing to it.
Running with land:
Example: A + B have problem, and then A C; B D. Does C and D still have burden of A and B?
Issues:
Does this make land inalienable, unmarketable? (ans probably no b/c people willing to accept many
conditions, prev: no one wanted to buy encumbered land)
Do we want land perpetually burdened? (eg. dont build up, yet in LA, all you do is build up)
63

Scope of easement:
allow if reasonably foreseeable to effectuate the same purpose of the original easement w/o surcharging it.
Scope & surcharge: extending scope adds surcharge
Example: 2 plots of land, shared driveway in btw them. And then one person goes into construction and
brings heavy equip into it, and then breaking up driveway and makes noise. What can other person do? Go
to court? Who pays for chewed up road? Scope of easement, scope of restrictive covenant.
Scope: use as haul road v. just driving w/ car. Damage, extra burden? Yet added signific
change/improvement to ppty [makes something unjust b/c make signif improvement that was visible, so
then if change position now, loss of money now]
Scope: ST can use land as long as doesnt interfere with DTs easement rights (and more respons of ST
owner with written easement looked at more strictly whats in writing) yet counterintuitive b/c then
incentive not to put into writing (b/c non-writing easements are looked at more narrowly).
Termination:
what doctrines allow us to terminate quickly. If something is terminated than what do we do with getting to
garage?
Easements:
1) Expressed easement: in writing
2) Implied easement:
a) Implied by prior use: usu if someone dividing land into two and used one property for something
(quasi-easement), so implied granting. Cts not as favorable to implied reservation (b/c owner had
right to put things into writing in lease and knows land better). Termination: like expressed
easement.
b) Implied by necessity: if you put someone in land-locked land where they can get off with easement
on your land, creates easement, Termination: ends when necessity ends
c) Estoppel: when someone has license, and servient tenement sees and allows investment in license
so revoking license results in lose of huge profit from licensee (can prevent licensor from revoking
license) reasonable reliance
Cts: allow estoppel unless (1) licensee breaks even from investment, (2) gives them
easement forever so should be high std, or (3) until structure falls part (depends on
jurisd), (4) as long as nature of license calls for it
Some cts req licensee who gets easement by estoppel to pay damages (to encourage
neighborliness)
3) Prescriptive easement: AP-ing easement when SoL over, with open and notorious, continuous (normal
use), claim of right (w/o permission), uninterrupted use (owner didnt stop you). Servient tenement can also
prescriptively get back easement.
Van Sandt, p. 797;
Sewer across land so burden yet also ST and DT. Was it prescriptive easement or easement implied from prior
use?
Prescriptive easement: sewer systems are open & notorious (inquiry notice)
Easement implied from prior use: (notice: why didnt grantor buy easement, inquiry notice: buyer should
have asked about sewers)
Easement by necessity: plumbing necessary or only land-locking land necessary? (folds into notice should
have asked b/c important part of house, compared to apples falling on your land)
Since one DT lot owned by grantor, shouldnt grantor have just put it in writing (expressed v. implied
easement)? Some cts say doesnt matter if youre grantor/grantee, others cts want grantor to put easements in
writing (reservations b/c know land better)
Easements (policy question):
64

Should focus be on establishing or terminating easement or both?

Common law: pressure in establishing easement
Third Restatement: put pressure in terminating easement
Factors determining implication of easements or profits, p. 800;
(1) whether claimant is grantor/grantee,
(2) terms of conveyance,
(3) consideration given for it (reflect easement?),
(4) whether claim is made against simultaneous grantee,
(5) the extent of necessity of easement or the profit to claimant,
(6) whether reciprocal benefits result to the grantor and grantee,
(7) manner in which the land was used prior to its conveyance,
(8) extent to which the manner of prior use was/might have been known to the parties. fairness grounds?
Will grantee get windfall (lower house price b/c easement yet not enforced?)
Example, p. 814 (4);
Right to go on someone elses property golf club
If golf club keeps sending golf balls over your land when does it become prescriptive easement? How can
you prevent? Depends on std of interruption by jurisd, but also can put up fence (prevent balls from coming
over or give them permission)
Example: prescriptive easement for right to continue doing something on property (eg. storing trash on
garbage pick up days, encroachment over line in carport)
Prescriptive easement over AP: acq right in how you got encroachment (stay w/in scope of useage right for
particular purpose) as oppose to AP (get all ownership rights)
Tricky situation: Manilo situation (AP v. easement for encroachment of home improvements), so possible
solutions are:
(1) AP,
(2) prescriptive easement, or
(3) encroachment with diff sets of remedies + concerns.
Similar concerns in diff jurisd: (1) not in writing and (2) dealing with what someone who owns land saw then
encroacher came on their property (look at fairness)
Othen v. Rosier, p. 802;
Easement of necessity: has to have been necessary (not just convenient) at time of conveyance of land, and
both parties knew about implied easement.
Implied by prior use: burden to prove (Did grantor use before subdivided land and then use afterwards?)
Prescription: (wasnt exclusive so then no easement by necessityis that true?), might require good faith
easement (actually think that easement is his)
Solutions:
(1) bargain with neighbors,
(2) legislative administrative hearing (req pathway yet who do you decide who will be burdened?) and
benefiting party pays $ damages (issue of state taking private property rights yet stronger public policy of landlocked land)
(3 ) Ct order transaction: like legis admin hearing, but ordered by ct.
Example, p. 810 (2), if land subdivided, previously quasi-easement but once divided tract, one lot is landlocked w/in that land grant, then cts order. Solns: (1) equity: fair situation causes injustice (divide up equally
65

with equal access to roads if no constraints to zoning), (2) legis admin hearing: someone burdened yet paid for
burden
Example, carport: If A encroaching on B, and then B buys As lot and sells it to C, then C doesnt have
prescriptive easement

Hint: look for land that has easement and then DT and ST comes into same ownership so easement
disappears. Start from beginning again with combined ownership. Dont imply from prior use past the time
ownership was united into one owner.
Non-exclusive (minority opinion): requiring exclusive use for easement. Hard if ST uses easement with
DT and then ST wants to change use of property (cant interfere with easement of DT), yet for some, DT
cant change uses of easement
Merger doctrine: buy DT and ST land (combine ownership)

Termination doctrine:
Easement by prescription: prescriptively take away easement (take back certain purposes, narrow scope)
Buy easement back
Put up blockades (prevent purpose of easement)
Automatic shut-off points (in expressed easements): if in K (automatic reversion)
Estoppel: dep on jurisd, stops when licensee gets value back in investment
Abandonment of easement: person makes it obvious that they dont want easement anymore (expressed
statement, and behavior clearly intended (subjective, not objective)
Implied easement by necessity: ends when necessity ends
Brown v. Voss, p. 833;
General rule: when have easement spelled out, to extend scope is misuse of easement and its a trespass.
Surcharging easement: increasing burden of ST too much (eg. if DT divides into smaller lots with same
easements)
Extending scope: cant extend use (if only for lot Bs use, cant extend to lot C)
Again: scope of prescriptive easement/necessity more narrow than expressed easement b/c had change to
bargain for scope of easement
Possible solutions:
1) forced transaction: preserve easement and usage but reward money damages
2) loss of easement: punish the surcharging DT by destroying easement b/c excessive surcharge too hard
to monitor and DT taking advantage of you. (yet still had chance to have scope in writing your bad!)
Presault v. United States, p. 843;
RR usage to Rails-to-Trails act (making old RRs public pathways). Was that easements intended use and did
RRs abandon easement?
Factors to see intent of parties: price, form they used (recorded deed)
If easement, then govt just has to compensate P for damages (increased usage)
Scope: RR purposes or public purposes?
Abandoned?
In order to abandonment, must show DT that you clearly dont want to use easement anymore (took off
tracks, cleared land), yet they left the structure there (so might come back even tho unlikely); std of
abandonment should be high so we value easements (costs, etc.)
When abandoning easement, dont have to leave in same condition, just cant damage surrounding
property
66

Implied from prior use, implied by necessity: results from subdivision itself cant pull out from writing
requirements.
Burdens: heavy b/c interfering with property rights permanently, while implied by necessity (for landlocked
land) only while necessary (lower std to est)
Public easements
Public rights to private property: if people using your property to cross, may get prescriptive easement (esp
if road) yet if undeveloped road, probably wont see as public esement (use seen as permissible), so property
should be closed or have trespassing sign Public rights to beach: highly statutory area, have right to use beach
and sometimes can use dry sand
Public trust doctrine: can go into direction of public directed prescriptive easement (public acquiring rights),
privately owned public resource public trust makes very limited land available (eg. coastal land already
included when you bought property.
Four traditional negative easements (p. 855), the right to stop your neighbor from
1. Light: blocking your windows
2. Air: interfering with air flowing to your land in a defined channel,
3. Removing the support of your building (usu by excavating or removing a supporting wall)
4. Interfering with the flow of water in an artificial stream.
New negative easement:
5. Conservation easement (dont develop land): scenic/historic areas & open space
6. Solar easement (dont block sun) blocking neighbors solar collector, sunlight
7. Unobstructed view easement keeping view of land, obstructing TV aerials
Kinds of encumberances:
-Got conveying language (present poss interest, future interest)
-Negative easements
-Covenant running of land

COVENANTS
Covenants: (restrictive covenant and equitable servitudes)
Distinguishing btw covenants/easements:
Restrictive covenant: restrictive covenant (contract, req more to enforce),
Negative easement: property interest
Classic easement: someone elses right to go on land on someones land
Negative easement: restriction of someones own use of land for someone elses benefit; rare and narrow
Want negative easements (less reqments) instead of covenants
Concerns about negative easements: very limited, why not have easements if recording act gives subseq
purchasers notice (freedom of K really important).
Restatements heading towards no distinction yet kept in to preserve history
B. Covenants (real covenants and equitable servitudes)
What you can and cannot do while staying on ones property
1. Real covenant (money damages, of law more requirements, personally liable, req writing (grantee
bound w/o signing, only grantor has to sign), reqment for burden of covenant to run at law (intent to
bind to successors, privity of estate (horizontal and vertical), touch and concern, subseq purchaser of
promisors land must have notice.
English law: only for LL-T, but in America, also for grantor-grantee rltship
Distinguish from condition: forfeiture (eg. FSD, FSSCS)
First Restatement: object to burning running at law; 3rd Restatement:
67

2. Equitable servitudes (injunction or specific performance, in equity, liability limited to land, not reqd in
writing)
Concern: of being able to terminate perpetual easements and covenants
Issue: sometimes equitable servitudes more burdensome (b/c have to do specific act and land injunction
more costly than money damages), yet equitable servitudes still have less reqments

Real covenants
First Restatement (expectation that its in writing)
H.P. required for burden, not for benefit
V.P. required
Intent for covenant to run (in writing?)
Notice to successors in interest
Touch & Concern
Creation

Running of Burden

Real Covenants
Always in writing reqd

Running of Benefit

Horiz privity (shared

interest in land, apart from
cov by original cov-ing
parties; or cov put in a deed
from grantor-grantee
Vertical privity: successor
holds entire interest held by
cov-ing party
Vertical privity reqd

Remedy

Money damages

Equitable Servitudes
Usu reqd but may arise by
implication from common
scheme of development of a
residential subdivision
No privity reqd

No privity reqd in most

states
Injunction

C/L privity of estate reqments for real covenants:

Real Covenant:
Horizontal privity:
Legal rltship btw two people with grounded interest in land (eg. btw LL and T; grantee-grantor); if reach
agreement b/c of interest in land, assume its sticking to land, extend interest to LL-T, Gor-Gee (straw),
Straw: like grantor-grantee rltship (uses lawyer to convey back to you and your neighbor w/ covenant
attached)
England: only use covenants for LL-T rltship, America: use gee-gtor as well
o Common law base rule: HP both required for burden and benefit to run.
o First Restatement: only required HP for burden, dislike burden running at law (b/c burdensome)
o Third Restatement/Modern law: dont req HP for burden/benefit running, but instead treat
affirmative and negative covenants different. (reqs more notice and no HP)
Running of benefit: C/L: could run w/o covenanting parties being in privity of estate (b/c then land
doesnt have undiscoverable burdens and doesnt adversely effect marketability), yet to sue subseq burdened
party, req both VP and HP
Reason for HP for burden: cts dont like having burden traveling with land
Vertical privity: only if absolute substitution (exactly same estate interest of grantor)
68

Covenant traveling with estate, not land

Running of benefit:
C/L: HP reqd for burden/benefit to run
1st Restatement: VP reqd for burden but not for benefit (runs with any benefit) but N/A to AP;
Third Restatement: discards reqment of VP for running both the burden/benefit. Trying to meld
covenants together. Distinguishs btw affirmative and negative covenants:
Negative cov (promise not to do something): run with successors (treated like interest in land),
things can been as + or so comes down to: whether we should have these things stuck to land at all
and how they should stick to land
Affirmative covenants (promising to do something): VP reqd for both burden/benefits + also runs
with AP and lesser estates, depending if its fair, sticks to land.
Exception: homeowners assn (can enforce benefit even not appurtenant to land)
Next Restatement: now, focused on creation, but later focus on shut-off doctrine to protect
marketability. Trend towards no distinction btw negative easements and equitable servitudes.
Goal: keep burdens from accumulating, yet called into question that people are willing to buy heavily
burdened land.
Example: (diff btw affirmative/negative covenants) trim my trees so you dont block my view. Either
affirmative cov (trim trees), negative cov (dont obstruct view), negative easement (unobstructed view).
If anyone conveys entire estate, then released from K (only LL-T unique and req a novation for a release)
Notice:
Subseq purchaser (esp burden) to have notice (inquiry, record, or actual of HP)
Problem: if negative covenanthow do you have inquiry notice from that?
Intent to run:
show HPs want cov to run with the land.
Easy to show w/ C/L b/c use straw (gor-gtee); Modern law: look for HPs mindset yet important if subseq
burden purchaser has notice (inquiry, record, or actual of HP)
Example: HP for burden to run but not for benefit to run (C doesnt need horizontal privity A-C to get benefit
from B, b/c B is K party). However, for subseq purchasers of burden, subseq purchaser of benefit reqs HP
(benefit) A ---------(horizontal interest)------- B (burden trim trees)
|
grounded in interest in land
|
C
D
Touch and concern: reqment that substance of promise touches and concerns land
Originally only satisfied with affirmative cov, but not extend to condos (hard to define)
If cts dont like cov, then say it doesnt T&C (look at overall benefits-burdens of lands)
Affirmative burdens are disfavored: burden greater to justify (b/c effects marketability), esp if $ is reqd
If benefit is in gross, burden will not run: or else w/o possibility of getting release (no way to termination
it), yet Restatement claims there are other ways for release
Overall is burden greater than benefit? If so, no T&C, overall negatively effecting land value (yet
difficult test to apply) and Restatement avoids, serves useful purpose beyond individual benefits, policy
concerns: marketability, effect fundamental right (policy issues arent addressed under 3rd Restatement
under T&C
Problems, p. 863,
1. (single family) A B (single family)
69

|
C (C builds apt complex)
Ans: if A and B didnt create HP w/ straw, then not cov, yet have other options, like K law (even if HP, also req
VP, Intent, Notice, T&C).
2. A builds apt, not C.
Ans: C can sue A for damages (benefit side can run w/o HP if burdened party is original Kor). Burden side
hasnt run yet so dont need HP to sue burdened person.

Equitable servitudes
interest in land, yet doesnt have to be in writing (yet need good excuse)
Equitable servitude of land (elements):
intent for parties the promise run
actual, constructive notice of covenant yet can run w/o notice as well
touch and concern land
HP or VP are not required
Neponsit Property Owners Association, Inc. v. Emigrant Industrial Savings Bank, p. 875;
Payments didnt touch and concern land, yet cts wanted to encourage homeowners association.
Neponsit Realty conveyed to Dyer for $$$
(promise to pay $4/year to maintain roads)
|
Bank (dont want to pay $4/yr for maintenance road, yet why
Said that homeowners assn represents homeowners, who have property (so its T&C land) follow common
interest exception.
Easement in gross: hard to find/buy out benefited person out if not attached to land (NY: cant cov w/ benefit
in gross). Cts solution: Neponsit Property Owners Assn (represent property owners)
Both real cov and equitable servitudes = notice, intent to run, and touch & concern.
Equitable servitudes:
No HP, No VP for burden?, VP for benefit?
Real covenants:
VP, HP
Touch and concern substitute: Third Restatements, p. 886
Invalid against public policy if servitude is:
a. arbitrary, spiteful, or capricious
b. unreasonably burdens a fundamental constitutional right
freedom of expression v. common interest, community restrictions (yet if allow community
restrictions then take away individual freedoms)
if unreasonable restraint on trade/competition, then invalid servitudes (similar to present
possessory interest)
c. imposes an unreasonable restraint on alientation
d. imposes an unreasonable restraint on trade or competition
e. unconscionable
Presumption for T&C: initially look to see if contract is touching the land.
70

Validity: encourages K-ing btw ppl, so they can deal w/ problems as they come along
Common Law
Real Covenant ($- show more elements b/c $ may swamp personal assets as well)
HP for burden
VP for burden/benefit
Intent to run: (eg. I bind my successors interest)
Notice
T&C
Equitable servitudes, p. 867 (burden on ppty require fewer elements)
No HP
No VP for burden (?)
VP for benefit (?)
Restatement (3rd)
Covenant running w/ land ($ damages or injunctive relief)
No HP
VP (?) AP can sue even, just claim of right for benefited landowner (reach anyone on negative cov)
Affirm cov (heavier burden than negative cov, req VP)
VP for benefit, reasonable rules for burden
Negative cov, no VP reqd (anyone who possesses/owns)
Intent to run
Notice
Validity (p. 886) (instead of T & C)
Termination:
C/L:
cov invalid from beginning by seeing if T&C-ing
Look at formal rules of VP to prevent burdens on lands
Restatements validity:
Focus on termination v. C/L focus on creation, want good covs to run until utility runs out
more broader than touch and concern, about freedom of contract, opportunity to burden their land, get
benefit of K w/o running into problems of burdening land with good termination doctrine (Whats fair?
(parties intent it to run, whats most reasonable, pressure of injunction/money)
Looking not so much at VP/HP but where the burden lies (negative cov less burdensome)
Negative cov: no VP rerqd; affirmative cov: VP applies for burden to run, need to look at reasonableness
rules
Looked directly at cov instead of formalistic rules to make sure not unnecessarily burdensome
Tulk v. Moxhay, p. 864;
In English, only have LL-T to create real covenant, yet with this case, equitable servitudes were created.
Grantor
A

Grantee
B (promised not to build on land/garden)
|
C (wants to build on land)

C paid price that reflected covenant so even if doesnt est real covenant, unfair that C gets windfall of FSA and
ignores restriction. A gets injunction and this creates equitable servitudes.
71

Example: On this day, 11/25/03, X and Y agree that X (owner of Yellow Dog Saloon) will maintain historic
faade of all sides of the structure, Yellow Dog Saloon located at .
XY

W
Q
W starts modernizing so Q sues. Can argue for conservation negative easement (dont have to be tied to the
land). Dont have to worry about HP, but can sue for $ damages b/c easement (where you can either money or
injunction great)
Creation doctrines (p. 869/870);
Real covenants: created in writing, Equitable servitudes: may be implied in equity under certain limited
circumstances, but not under prescription
Example: (written agreement) On 11/25/03, B and A entered into agreement that in exchange for $25k
payment from A to B, B wont build on his land. A B
-have this agreement recorded and both ppty sold. Not dealing with VP (they transferred with everything
they had, etc.); B D; A C
-C wants $ damages for D to build an apt complex. Sue for $ damages.
Common law: see it in interest in land. Didnt est HP. So C has to claim it to be negative easement: can be
either easement of view or conservation easement
Sanborn v. McLean, p. 870:
Equitable servitude can be implied with general plan for residential development (even if no actual notice
b/c not in your deed, yet may have inquiry notice); restriction on others deeds has be in place before you get
your land

CA: reqs that general developer have restriction in deed

Sanborn Ct: allows for this exception, makes buying land more expensive/risky b/c nothing in writing and
have to guess, instead of reqing more things in writing, if developer in direct chain of ownership and has
plan near your land but your land isnt included, you have inquiry notice
Intent of McLeans seller: how seller represents things to McLean

Equitable servitude issues: whats important writing, how easy is it to find, how much does this increase the
risk/cost of buying land (cost of title searcher, increase risk of buying land), more extensive your search, more
risky your purchase
Touch and concern
Touch and concern: wild card for cts if they dont like cov. Cts dislike if cov not relevant to land and just
personal (signif detract value of land), cov should benefit the marketability of land or common areas (roads
near your land Neponsit)
Equitable servitudes: ct just look at public policy to facilitate + econ rltship (reciprocally beneficial and
burdened b/c payment of $ if as if landowner is maintaining facilitates definitely benefits and burdens
people in rltship to land obligations connected to land.
Example: Homeowners Assn: contract sticks to land so that successors of interest yet not parties in
contract are still bound by contract
72

Obligations: sports club ($200/mo); computer access ($200/mo),

restaurant ($100/mo), airplane ($1K/mo)

D

Which things would you keep as touch and concerning land (if all other elements in place given notice,
horizontal privity)?
Options for courts of validating obligations:
(1) Voluntary associations: allow b/c people chose to get into this (and more efficient than to pay commercial
stuff individually) if poss of buying other land
Ct allow depending on how someone can respond to market responses (and shut off principles); does this effect
housing availability (housing mkt), marketability?
Example, p. 887 (2) Cts found that covenant didnt have T & C
D (supply water)

(benefit: receive $; burden: provide water)

(benefit: receive water;
burden: paying for water)

SP
(want to stop running of
burden + benefit)
If every element except T&C (water necessary to use property):
Ct: can say that water isnt necessary to land (b/c not tied to land), and SPs desire to get out isnt going to hurt
D from providing svcs to other P, therefore, premium: better get out of cov earliest.
Developer: would put time limit on (to calc max profits and adj water prices); pays for developer to protect
himself: K w/ original property owner (and get high upfront costs for initial purchasers so want options
available), yet with this impede technological advances
Basic arg: benefits are greater than burdens of burdened landowner
Caullett v. Stanley Stilwell & Sons, Inc., p. 888
D (lot)
P
(D gets to build)
SP
Sometimes doesnt matter if T&C b/c its not a property interest, but just a K (benefits D as person, not as
landowner not attached to any land of Ds), better case if D owned land and desired eclectic architectural
diversity
Benefit = in gross

Burden run
General background rule (Common law): benefit of restricted covenant is in gross (personal, not tied to land),
then burden will not run. Burden can be in gross but benefit cant be in gross (has to be linked to land so can
buy out benefit)
Modern rule: look at continuity of time, sensitive if going too long (see if they can find burdened person, sell
land)
Scope of covenant:
73

Hill v. Community of Damien of Molokai, p. 893;

Applicable covenant (p. 894): no lot shall ever be used for any purpose other than single family residence
purposes, etc.
Look at definition of single-family (reasonable reliance expectation), yet unclear (look at it more broadly),
plus discriminates with FFHA (only include issues that are in contract if concerned about traffic, should be
in K)
Cts found that discriminatory intent in enforcing covenant against them (exception), yet didnt throw out
entire covenant b/c potential unconscionable uses (so narrow it with scope as oppose to throwing the
covenant out all together), dont knock out completely but just that use of covenant

Issue: if talk about only residential purposes, what about when people use homes as offices?
Is it applicable to only outer faade? Does it have to do with traffic, etc?

Shelley v. Kraemer, p. 905;

SCt of Missouri: property restricted for 50 years restrict the use of said property by people of Negro or
Mongolian Race. Received warranty deed to Shelley.
Ct: forced divesting of title from Shelley and revesting into immediate grantor (enjoined sale)
SCt Michigan: Ct left title to Black purchasers and restricted Black purchaser from occupying property; yet
can own any property (Civil Rights Acts of 1866) look narrowly at what covenant says.
US SCt: narrowing of scope too broad and entire thing eliminated. Buchanan v. Warley (states/municipality
creates segregated sections), yet Constitution only regulates States People yet also State Govt
enforcement (courts included) People (not to discriminate)
o so cts arent allowed to enforce this discrimination!
Broad: ct has right to not implement discriminatory acts (Constitutional rights)
Narrow: cts only enforce for racially restrictive covenants, then ct acting like state actors when enforcing
this.
Restatement (middle ground): fundamental right is implicated, the court will not be able to enforce.
CA: 1999: whenever you have title with summary of restrictive covenants are not enforceable (purchasing
public may be offended by records, writing)
keep historical record intacted yet also show that illegal to enforce restrict covenants (illegal with FFHA
now and dont have to go to Shelley case)
some people thought that things will be expunged (show racial discrimination)

74