PROPERTY FALL 2010

Theories

First-in-time/occupancy (p. 11): taking possession of an un-owned thing is the way to acquire ownership
a. Pierson v. Post
b. Ghen v. Rich
c. Popov v. Hayashi
d. Contrary: Adverse possession and Spur

Labor (p. 14): a person’s labor makes an un-owned thing his (Locke)
a. Plaintiff’s argument in Local 1330 v. US Steel
b. INS v. AP, Smith v. Chanel, etc.
c. Keeble v. Hickeringill
d. Van Valkenburgh v. Lutz (adverse possession)
e. Manure case

Reliance (p. 91): dependence creates a property interest

a. Local 1330 v. US Steel
b. Adverse possession/boundary dispute agreements
c. Easement by estoppel
d. Elkus v. Elkus v. In re Marriage of Graham

Utilitarian/Efficiency (p. 46): maximize utility or societal wealth through property rights
a. Keeble v. Hickeringill
b. Cheney Brothers v. Doris Silk Corp.
c. Rule Against Perpetuities
d. Partition by sale v. partition in kind

Personality (p. 113): property defines the owner’s person and becomes a distinct right
a. Van Valkenburgh v. Lutz (Holmes on adverse possession)
b. Delfino v. Vealencis
c. Estancias Dallas Corp. v. Schultz
d. Kelo v. City of New London
e. White v. Brown
f. In re Marriage of Graham v. Elkus v. Elkus
g. Local 1330 v. US Steel

Rule v. Standard
Rule Standard
 Less litigation due to clarity  Flexibility
 Certainty  Fairness: individual adjudication
 Clarity: shapes behavior  Hard to apply, unequal
 Objective: not dependent on who’s application
judging and who’s being judge
 may be arbitrary

Institutional Competence
Judiciary Legislature
 Objective/no partisan  Biased by special interest group
 Common law can be both narrow  Institutionally slow
and flexible / faster  Nature of debate/democratic
 Limited to scope of case  Can call on commission groups
 Experience developing law  Testimony
 Anti-democratic  Can override the judiciary

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 PROPERTY FALL 2010
Capture and the Meaning of Possession
Cases:
Popov v. Hayashi: Popov was in process of catching ball when a violent mob prevented him from gaining
possession of the ball. Hayashi picked the ball up. Popov had a prepossessory interest that was interrupted by
illegal actions from others. Hayashi had done nothing wrong and had possession  equitable division

Pierson v. Post (Pierson wins):Post chased down a fox. At the last minute, Pierson killed and took the fox fully
knowing that Post was in pursuit. Capture or mortal wounding of animal is necessary for ownership

Keeble v. Hickeringill (Keeble wins): Keeble owned land on which he built a decoy pond for his business.
Hickeringill shoots gun with malicious intent to drive away Keeble’s ducks. Violent or malicious acts are not
allowed in damaging another’s occupation, and encouragement of the capture of ducks (rather than neither
getting any) is desirable. It was not fair competition.

Ghen v. Rich (Ghen wins): Ghen mortally wounds a whale and it sinks to shore, Rich finds it and sells it despite
knowing local custom where discoverer would send notice to the whale’s killer. Local custom is the rule = Mortal
wounding is sufficient to establish ownership, as immediate capture of a whale is impossible, and custom
encourages commercial whaling.

Notes
I. Rule of Capture/First in Time: whoever is first to gain possession of unowned item gets ownership
a. Possession/Mortal wounding is ownership except if there is unlawful interference
b. Possession definition: physical control and intent to exclude
c. Rationale
i. Easy: who has something is obvious
ii. Competition: encourages innovation, lower prices for consumers
1. Pierson, Keeble, Popov
iii. Labor/fairness: person who worked hard to get there first deserves it; he was better at capture;
doesn’t always promote efficiency
1. Popov, Pierson, Keeble
iv. (Exception) Custom: this is how it’s always been done; reliance interest and expectations;
economically efficient; institutional efficiency
1. Pierson, Ghen, Popov
d. Drawbacks
i. Fairness: distribution of property rights isn’t necessarily fair
1. Pierson v. Post: is it fair that Pierson swooped in at last minute after Post’s hard work?
ii. Efficiency: doesn’t necessarily promote most efficient use of property
1. Externality problems
e. Contemporary effects
i. Animals/fish
1. Overconsumption: depletion of natural wildlife: overfishing, save the whales, no foxes
left in England, etc.
2. Overinvestment in capture technology: due to competition
3. Fish and game laws, individual transferable quotas (ITQ)
ii. Rule of Capture: Oil and gas
1. Ratione soli (landowner owns animals on land) applies to oil and gas: landowner owns
oil/gas only when it’s under his land
2. Barnard v. Monongahela Natural Gas Co. (p. 34): A and B had shared pool of oil
under land, B drained all of it; B captured it first, so A had no recourse
a. Union Gas & Oil Co. v. Fyffe (p. 34): A may be able to get injunction
3. Compulsory unitization: upon vote of owners of land, one unit of all owners is formed
with all members sharing in production
iii. Water and America: rule of reasonable use
a. Groundwater was landowner’s but not allowed to harm neighbors

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 PROPERTY FALL 2010
b. Western States: prior appropriation, i.e. first in time, for surface waters due to scarcity
c. Eastern states: riparian rights that allow use of water subject to other riparians’ use
II. Demsetz, and Property Rights – externalities and common prop
a. Utilitarian theory of property
b. [Externality: cost or benefit that a resource user is not forced (or only partially forced) to take into
account when making decisions about how to use resource]
c. Communal property results in more externalities
i. “tragedy of the commons” – overuse of common resources, overconsumption
ii. Transaction costs, Policing, Holdouts, Difficulty of valuing benefits/costs
iii. His solution = privatization: private property causes people to internalize the costs
and benefits of actions  efficient use of resrouces
1. Can’t always privatize property
a. Whales: quotas on where, how many, and when
b. Air pollution: cap and trade
d. Anticommons thought experiment (Heller)
i. Multiple rights to exclude others leads to underconsumption
e. Criticisms
i. Unjustified leap from assuming efficiency-maximizing behavior of individuals to assuming
efficiency-maximizing behavior of society
ii. Common ownership has virtues: effective means of common resource management,
increases value of some kinds of resources, enhances sociability of members of atomized
society, lower costs when exploited by people acting together, people like working in
groups

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 PROPERTY FALL 2010
Acquisition by Adverse Possession
Roadmap
A. Check for statutory period of the jurisdiction, also consider special considerations
B. Elements
1. Open and notorious: occupy property in open and notorious manner to give owner reasonable notice
i. Mannillo v. Gorski: slight encroachment not enough—important for boundary disputes
ii. Howard v. Kunto: didn’t know they had the wrong deed, not open and notorious but still AP
iii. Marengo Cave Co. v. Ross: possessing cave under land not notorious
iv. Boundary disputes you need actual knowledge but for other cases you need it to just be open
and notorious to put true owners on notice
2. Actual use: must use property like an ordinary true owner would use it/ and use a great portion of it
i. Van Valkenburgh: many requirements, simple gardening not enough, shack,
ii. Ewing v. Burnet (p. 124): simply digging gravel enough
iii. Pettis v. Lozier (p. 125): lots of use not enough
3. Claim of right/title: must hold adversely to owner under claim
i. Good faith jurisdiction: believe that property is yours (majority view)
1. Van Valkenburgh v. Lutz: court was inconsistent, as VVs thought garage was on their
property but knew the shack wasn’t,
2. Howard v. Kunto: had the wrong deed but thought it was theirs
ii. Bad faith: know that property is not yours (Maine doctrine)
1. Van Valkenburgh v. Lutz: acknowledged it wasn’t theirs
iii. Objective acts jurisd: subjective state of mind doesn’t matter – ask are the other elements met?
1. Do the acts point to the fact that she was making a claim to the property?
2. Mannillo v. Gorski: overturns in favor of objective
4. Continuous use
i. Howard v. Kunto
1. Tacking allowed: can add previous owners’ periods of adverse possession if can
establish privity of estate
2. Privity sometimes requires deed: establishes good faith
3. Summer occupancy sufficient
ii. Ewing v. Bernet
1. Paid taxes on the lot and dug gravel from time to time
a. It was appropriate in context – look at what is ordinary in context
5. Exclusivity:
i. Van Valkenburgh v. Lutz: not a substantial enclosure
ii. Ewing v. Bernet established exclusivity by suing others for trespass while he was APing the
land

C. Special Considerations
1. Chattels
i. Open and notorious
1. Difficult for adverse possessor to meet
2. Doesn’t make sense for personal property
ii. When does cause of action accrue?
1. Statute of limitations – time of the theft
a. Unfair if owner does not know identity of adverse possessor to sue
2. Elements of AP –but really hard because of open and notorious
3. Discovery Rule: Cause of action for replevin accrues when (i.e. freezes statute of
limitations until) owner discovers or should have discovered identity through
reasonable diligence of adverse possessor
a. Encourages true owners to act by shifting burden of proof from adverse
possessors to owners
b. O’Keeffe v. Snyder: Discovery Rule and UCC promote good faith purchases
and discourage trafficking in stolen art

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 PROPERTY FALL 2010
c. Autocephalous v. Goldberg & Feldman (p. 155): due diligence determination
is fact-sensitive and decided on case-by-case basis
4. Guggenheim Found. v. Lubell (p. 154): statute of limitations does not begin to run
until owner makes a demand for return and good-faith purchaser refuses
a. Defense of Laches: if you sit on your rights too long, then you can’t exert them
2. Disabilities (minor, mentally unsound, or imprisoned)
iii. If party has a disability after expiration of 21 year period to bring action of real prop they have
10 years after the end of the disability to bring the action – extends statute of limitations
iv. Disability must exist at time of cause of action was filed
3. Remedies
i. Property rule: award property
1. Give land back to the plfs or defs
ii. Liability rule: award damages
1. Defs pay plfs for the deed to the encroachment
2. Plfs pay defs for the value of improvements made, reliance on propd
4. Color of title: claim founded on a written instrument (will, deed)
1. Helps establish claim of right due to good faith
2. Adverse possessor gains not only occupied property but entire premises described
3. Actual use element relaxed
a. Van Valkenburgh v. Lutz: statute had different requirements
5. Boundary disputes
i. How courts deal with boundary disputes when stat period hasn’t been met but there are
other factors in ply:
1. Agreed boundaries: evidence that parties agreed to where the boundaries should
be placed and there has been reliance on this agreement (ex. Monetary changes)
2. Long acquiescence: parties have agreed to boundary for a long time – leave it
3. Estoppel: not allowed to challenge boundaries based on agreement or actions , i.e.
you’re estopped from claim
6. Government land
i. Common law: cannot adversely possess against government
ii. Modern law: some permit but with varying restrictions

Notes
I. Arguments for adverse possession
a. Economic utility/efficiency: productive use of land
b. Quiets title: statute of limitations so state of title becomes certain (Ballantine),
i. so you don’t sleep on your rights
c. Personhood is wrapped up in labor of land (Holmes)
d. Reliance theory: combination of inaction of owner and time, expenses expended by Aper
i. Discourage trespass and reward good faith
II. Chattels
a. Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)
i. Burden is on museum to prove objects obtained with consent
b. The Getty’s Troubled Goddess: Aphrodite statue likely stolen, but Getty intends to return
c. Purchasing goods with bad title
i. Uniform Commercial Code (UCC): “a good faith purchaser for value” gets goods free and
clear even though sellers may have gotten goods through fraud or deceit—but NOT theft
ii. Doctrine of Market Overt: bona fide purchaser can acquire good title from thief if sale takes
place in an open market (some European and other countries)

Cases
Van Valkenburg v. Lutz (VVs prevail) : Lutzs maintained a prop for more than 30yrs: traveled way, Charlie’s
shack, and gardening. VV bought the property in foreclosure sale ejected Lutzes from property. Actual use and
claim of right were in contention: prop wasn’t cultivated/ improved enough: garden didn’t use whole property,
one-room house wasn’t enough also need claim of title.

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Mannillo v. Gorski: (Gorski wins): Gorskis possess property and are conveyed the deed. Defs make changes that
encroach on the plf future land. In Mannillos buy the adjacent property and sue to remove the encroachment, Defs
claim AP. (1) bad faith standard is incorrect  objective standard and (2) a minor encroachment may not
be open and notorious. Do not want to unduly burden true owner to be on constant alert for small encroachments
– but here prop was small enough that they should have noticed.

Howard v. Kunto: (Kunto wins): Plf discovers that deeds are incorrect (prop owners on street legally own prop to
the left of them), Plfs try to quiet title to Kunto’s summer home (which they legally own title to) – Seasonal
occupancy is sufficient to establish uninterrupted, open and notorious, and actual use. Tacking of prior owners
despite lack of privity is allowed.

O’Keefe v. Snyder: O’Keefe claims ownership of 3 paintings stolen from her 1946 –action for replevin. Def claims
good faith purchase and AP. Possession of chattels usually not open and notorious. Discovery rule shifts burden
from possessor to owner, encourages owners to use reasonable efforts, and encourages good faith purchases.
 Discovery Rule: cause of action wont accrue until injured party discovers or should be able to discover
facts about location of property
 Guggenheim Rule: once you know the identity of the possessor SOL begins to run

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 Acquisition by Reliance
Notes
I. Local 1330 v. U.S. Steel
a. Reliance interest: workers depended on company’s representations and promises of staying open
i. Rejected on three grounds
1. No definite promises to stay open
2. Statements not made by company officers
3. Profitability never actually occurred
b. Community property: property rights develop from long relationship, reliance interest, and labor
i. Unfair to employees due to reliance and labor and community dependant on the factory staying
open
1. U.S. Steel has right to make decisions about its property
ii. Closing down factory might not be economically efficient
1. Difficult to empirically establish externalities
iii. Court says legislature is proper body—not judiciary—to decide
1. No authority in Constitution, statute, or case law
2. However, not acting, even if recognizing corporate property right, is still a decision
3. Congress eventually did pass statute, but it was weak and first beneficiaries were
investment bankers
c. Antitrust claim: not addressed in class
II. Singer, The Reliance Interest in Property
a. Reliance interest underlies moral principals limiting right to exclude
b. Several property doctrines provide support for Local 1330 by shifting property interests from owners to
non-owners
i. Adverse possession: reliance interest is basis for shifting property interest
1. Common elements: open and notorious, continuous, actual use
ii. Prescriptive easements: owners lose right to prevent others from using property in specific
way; adverse use rights transferred to others
iii. Easement by estoppel: although permissive use, cannot prevent future use due to reliance
interest
iv. Easement by necessity: landlocked parcels have rights of access across remaining land of
grantor to reach public way
c. Hoefeld
i. Property is relational – others are affected by your rights and privileges
1. You don’t have an absolute right over your property
ii. Property is not something owned but is a bundle of rights and privileges, i.e. bundle of sticks
iii. Property rights are only rights if state acts. Privileges are only privileges if state won’t act.
1. For every right, there is a correlative duty
a. X has right to property; Y has duty not to infringe on X’s right
2. Privilege: permission to act in a manner vis-à-vis property without being L to others
for damages and without others summoning state power to prevent your acts
a. For every privilege there is a correlative “no right”
iv. Singer argues that court in Local 1330 mistakenly believed that the factory had absolute right
on property

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 PROPERTY FALL 2010
Acquisition by Creation
Notes
I. IP protection is balance between labor theory and utilitarian theory
a. Labor theory: creativity and ingenuity
i. Fruits of one’s labor should be protected
ii. One who adds value gains ownership
1. INS v. AP: AP collected and organized news, adding value to it
iii. Locke Law of Accession: how much value of raw materials were increased determines
who owns resulting product
1. If you exert labor and remove an object from its natural state, it becomes your
property
2. Haslem v. Lockwood (p. 14): adding value to manure by raking it into piles makes
it yours
b. Utilitarian theory: economic efficiency
i. Instrumental argument: no one would gather create stuff if it’s profitless and unprotected
(INS v. AP)
1. However, competition forces technology innovation and lowers prices (Smith v.
Chanel, Inc., Cheney Brothers v. Doris Silk Corp.)
2. Property rights are relational – Hoefeld – who is there property rights against?
II. Types of IP protection
a. Patents
i. Processes/products that are novel, useful or non-obvious
ii. Most protective - 20 years
b. Copyrights
i. Conferred for unique manner of expression
ii. Life of author + 70 years
iii. News is not copyrightable but is quasi property
1. INS v. AP: AP has right to property; INS has duty not to infringe
iv. Right of publicity
1. White v. Samsung :White’s celebrity rights extend to ads that merely remind
public of her
c. Trademarks
i. Least protective but essentially extends ad infinitum
ii. Trademarks cannot be used in manner that may cause confusion except when comparing
products or becomes ubiquitous word, e.g. aspirin
1. Smith v. Chanel.: Smith can compare its perfume to Chanel No. 5 in its ads

Cases
INS v. AP (AP wins): AP sued INS for pirating previous news stories and rewriting them and publishing them as
their own. Current news is common prop., but labor, time, and money in creating stories, writing and
distributing is property. After publication can spread the news but cant sell in a way that interferes with business.

Cheney Brothers v. Doris Silk Corp.(∆ wins): ∆ copied plaintiff’s seasonal silk patterns and undercut them on
price. Patterns were neither copyrighted nor patented due to short life of fashion. Competition theory.

Smith v. Chanel (Smith wins): Smith copied Chanel No. 5, which was unpatented, and advertised that its perfume
was the equivalent. Labor (and expenditure of money) is not enough to create protectable right. The copyist serves
the public interest by offering competitively priced goods. “Imitation is bloodline of competition”
 Utilitarian and labor theories in tension

White v. Samsung (White wins): Samsung used an ad - robot standing in front of Wheel of Fortune game. Dissent:
we shouldn’t extend prop rights so far as to stunt and deter people from being creative

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Reflections on Acquisition and Possession
Notes
I. Government determines property rights
a. Johnson v. M’Intosh: discovery and conquest gives government—and not individuals—sole right to
Native American land
i. Discovery: sighting or finding of hitherto unknown or uncharted territory
ii. Conquest: taking of possession of enemy territory through force
iii. Native Americans only had right to occupancy
b. Bentham: “property and law were born together and will die together”
i. Property not dependent on facts or natural order but on government and law
II. Court in Moore says no property right in human body
a. Conversion claim: you need to maintain prop interest in the object
i. But there is no judicial support for this and statutes against maintaining interest in body parts
ii. Should it be extended? Consider:
1. Impediments to research and progress of science
2. Value of human body –money?
3. Institutional confidence?
III. Right to include & right to exclude are necessary and sufficient conditions for transferrability
a. Right to exclude strongly protected: trespass is strict liability
i. But can be limited if open to all public
ii. Jacque v. Steenberg Homes: protect right to exclude with damages
1. “Without a remedy, there is no right.”
2. Prevents self-help remedies
b. However, right to exclude can be limited
i. Singer: reliance interest limits right to exclude
1. Property rights are not absolute –Hoefeld
ii. State v. Shack: can’t bar access to government aid for disadvantaged segments of society

Cases
Johnson v. M’Intosh (∆s wins): Piankeshaw Indians conveyed land to plaintiffs. US granted same land to ∆s.
Only the government can negotiate for land with NAs who did not actually own land but just possessed-- Property
rights determined by govt

Moore v. UC Regents (∆s win): Moore sues because ∆s used plf’s diseased spleen and cells for research which
yielded a bug commercial value without his consent – property rights in human body? No. Patient rights are
adequately covered by informed consent, and civil liability unfairly burdens medical research and investment in
it. Last, valuing body parts is immoral.

Jacque v. Steenberg Homes (π wins): ∆ delivered a mobile home by plowing a path across Jacque’s land without
permission. Intentional trespass - right to exclude is a fundamental property right, which must be protected by
state. Otherwise, people may result to self-help remedies.

State v. Shack (∆ wins): Shack, an attorney for a nonprofit created by Congress, entered onto complainant’s land to
counsel migrant farmworkers housed there. It is not trespass to go onto land to offer government aid to
disadvantaged segments of society.  limits on right to exclude

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Nuisance (Right to Use and Quiet Enjoyment)
Roadmap
1. Is it a substantial interference with use and enjoyment of land?
a. If not, then there’s no nuisance.
2. Is it a public or private nuisance?
a. If it’s private, only an owner of interest in land can bring suit.
b. If it’s public, then does the plaintiff have a special injury? (Spur)
i. Injury or damage must be of a kind different from that suffered by other members of the public
3. Is it a nuisance per se? Is there a statute on point? (Spur)
a. Nuisance per se is nuisance no matter how reasonable the defendant’s conduct
4. Can the harm to the plaintiff be characterized as a trespass?  Strict L
5. Is it intentional or unintentional?
a. If unintentional, then must have negligence, recklessness, or abnormally dangerous activity. (rare)
b. If intentional, then must show harm is unreasonable (High Penn).
i. Threshold test (High Penn, Estancias, Boomer, Morgan) – determine L then remedy
1. Has the level of interference crossed some threshold that a normal person should not
have to endure?
2. Is the behavior unreasonable? To an ordinary person would the harm be substantial?
a. If the plf is hypersensitive would the harm be foreseeable?
3. Remedy
a. Restatement factors can be applied here to balance the equities
i. Knowledge or foreseeability? – substantially certain to occur?
ii. Naturally occurring? Purposeful development – coming to the
nuisance?
iii. Change in circumstances since plf’s arrival?
ii. Restatement: determine unreasonability by gravity of harm v. utility of ∆’s conduct
1. Gravity of harm inflicted on plf:
a. Extent and character of harm
b. Social value of plaintiff’s use of land
c. Suitability to locality
d. Burden on plaintiff to avoid harm
e. Coming to the nuisance?
2. Utility of ∆’s conduct:
a. Social value of conduct
b. Suitability to locality
c. Impracticality of defendant preventing harm
i. Cost, available technology
3. ∆ can pay off plf to avoid shutting down the business causing the nuisance
6. Is there a coming to the nuisance defense?
7. Remedies
a. In Restatement, balance gravity of harm v. utility of defendant’s conduct
i. Harm > utility: grant plaintiff an injunction (Morgan, Estancias)
ii. Serious harm but high utility: let activity continue if defendant pays damages (Boomer)
iii. Utility > harm: Let activity continue by denying all relief
iv. Abate activity if plaintiff pays damages (Spur)
b. Injunction v. remedies – policy argument

Notes
I. Coase Theorem
a. When there are few parties, parties will bargain to efficient outcome because transaction costs are low
i. Bilateral monopoly: two parties can result in high negotiation costs because each party
bargains “strategically” to get as much as possible
b. If A inflicts harm on B, we restrain A. However, if we restrain A, then B inflicts harm on A.
II. Special considerations (p. 644-45)

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III. Lateral and subjacent support
a. Lateral support: parcels surrounding land
i. Support under natural conditions
ii. No right to support of structures
b. Subjacent support: support from underneath; mirrors lateral support
IV. Environmental controls
a. Problems with nuisance law
i. Plaintiffs have weak incentives to bring expensive lawsuits with different problems of proof
ii. Judiciary not good at dealing with scientific issues
iii. Judiciary ill-suited for devising and overseeing ongoing programs
iv. Judges lack political competence to make large-scale value judgments
b. Solutions
i. Class actions, provision of fees to plaintiffs, special environmental courts
ii. Legislative and administrative intervention
1. Regulation: prohibit certain activities, require prescribed technologies, set standards
for limiting pollution
a. More direct, more certain, easier to monitor
b. Does not commodify environmental quality
c. More acceptable politically
2. Incentive systems: emission/effluent fees, marketable or transferable rights
a. More decentralized than regulation
b. Primary advantage is lower costs
c. Encourages more technological innovation

Cases
Morgan v. High Penn Oil Co. (Nuisance, inj): plfs own property and a refinery opens next to their land carrying
noxious and hazardous odors when it transports oil. The nuisance was intentional, unreasonable, and substantial,
so temporary damages and an injunction were necessary.

Estancias v. Schultz (Nuisance, Inj): plf sues for an loud AC system but for the def to switch systems it would cost
a lot of money. After balance equities injunction and damages.

Boomer v. Atlantic Cement (Perm damages, no injuction): ∆ operated a cement plant with a $45m investment and
300+ employees near plfs that caused damage via dirt, smoke, and vibrations. ∆ would not be able to abate nuisance
without shutting down because no technology to mitigate. An injunction would have been too drastic due to
large disparity between economic consequences of injunction and effect of nuisance. Nuisance not meant to be
used as environmental control

Spur Industries. v. Del Webb (Nuisance per se): Spur owns a cattle lot and Webb developing the same land, both
parties extended lots until Webb had sales resistance because of odor and flies. Cattle feedlot was a public nuisance
to nearby residents due to being a health problem. But if no statute – balance equities: indemnification of Spur

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Eminent Domain and Takings
Roadmap
1. Eminent Domain: Is government exercising its right of eminent domain?
a. Is there a taking – this is agreed in eminent domain
b. Is there a public use (or public purpose)?
i. Ends Test: if the ends are sufficiently “public”
1. Kelo - econ development plan qualifies as a public purpose, defer to local government
ii. Means Test: takings should be permitted only for pressing needs that would be difficult without
the means of eminent domain.
c. Was there just compensation?
2. Regulatory Taking: limit on right to use
a. Permanent physical occupation (PPO)? If so, it is a per se taking.
i. Loretto: regulation requiring cable installations are a PPO, categorical rule
ii. Nollan: although exaction, easement would have been PPO
b. 100% diminution in economic value?  per se taking
i. Lucas: establishes categorical rule that 100% diminution is per se taking
ii. Exceptions:
1. Common law nuisance control?
a. Apply nuisance restatement test – what potential harm being prevented?
2. Is there already a limitation on the owner’s title that limits the use? (background prop)
a. Post-enactment purchases (Palazzolo) – not a bar, but a factor
iii. Is there a way to conceptually sever?
1. Lucas: state background principles make concept sever ok (v. TRPA)
2. Penn Coal: conceptual severance of surface and minerals allowed when there is only
one owner and 100% diminution found
3. Palazzolo: 90%+ diminution in value is not 100%, cannot conceptually sever parcels
4. Tahoe: cannot conceptually sever time to establish 100% diminution in economic
value
5. Penn Central: cannot conceptually sever airspace to establish 100% diminution in
6. Keystone v. Benedictis (p. 989): cannot conceptually sever support estate even though
PA law did
c. Penn Central Test: when its not a 100% diminution but still a big reduction
i. Economic impact of regulation
1. Palazzolo: $200k is ample value left even though it may be worth $3m
2. Penn Coal: regulation can go too far, no legitimate public purpose because safety not
an issue whereas huge economic harm
3. Penn Central: transferable development rights (TDR) eases burden of regulation such
that not a taking
ii. Interference with distinct investment-backed expectations (DIBE)
1. Palazzolo: no absolute bar if investment is after regulation
iii. Character of harm
1. More willing to tolerate interference with right to use than to exclude
2. Is there average reciprocity of advantages?
a. Is π being singled out for what should be a community burden?
i. Penn Central: sustains historic preservation law
ii. Lucas/Penn Coal
3. Exactions: is the government attaching a condition in exchange for permission to develop that would otherwise
be an unconstitutional taking?
a. Would the exaction otherwise be a taking?
b. What’s the purpose?
c. Is there an essential nexus?
i. Nollan: essential nexus must exist between condition and public purpose
d. If there is an essential nexus, is there rough proportionality to the impact of development?
i. Dolan: rough proportionality must exist between condition and impact of development

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ii. Is there enough evidence to make this determination?
e. If there is no essential nexus and no rough proportionality, then use balancing test
i. Impact fees is a taking in CA so look at rough proportionality

Notes
I. 5th Amendment: “nor shall private property be taken for public use, without just compensation”
II. Rationale
a. Individual possession derives from state grants held subject to implied reservation that state might
resume ownership
b. Eminent domain is inherent attribute of sovereignty necessary for government
c. Efficiency (Posner): necessary to prevent bilateral monopoly
III. Compensation: fair market value
a. Rationale
i. Posner: government would otherwise substitute land for cheaper inputs
ii. Fischel & Shapiro: protects private entitlements and disciplines power of state
1. However, inefficient because encourages landowners to overinvest
iii. Fairness argument
iv. Protects exploitation of relatively powerless groups
b. Regulatory takings: fair rental value, option price, interest on lost profits, before-and-after valuation,
benefit to government

Cases

Eminent Domain

Kelo v. New London (Public Use): huge public development and economic plan created by private firm to bolster
economy of city – requires private land. “public use” = public purpose (5 th amend) – underlying goal is economic
improvement which is for a public purpose (but since going through a private firm need strong plan). Court defer
to local government decisions for takings plans.

Loretto v. Teleprompter (PPO): NY law allow cable companies to install cable, paying only a nominal fee to
landlord. Permanent physical occupation always results in a taking, calling for just compensation, regardless of
public benefit, economic impact, and size of occupation. It interferes with right to exclude.

Regulatory Takings – exercise of police power

Hadacheck v. Sebastian (No taking): plf owns brick manu that a city eventually develops around; ordinance
soonafter issued prohibiting bricks manus. Nature of the regulation is to prevent a nuisance and protect citizen
health (no just comp). Harm preventing v. benefit conferring standard (overturned in Lucas). Also not a complete
injunction because he can still remove brick clay

Penn Coal v. Mahon (Taking): ∆s executed a deed (private K) to convey the surface but retain right to remove coal
underneath, waiving all claims for resulting damages. New statute forbade mining of coal that would cause
subsidence - Not allowing mining would be equivalent to taking or destroying coal, and safety is not an issue. Any
regulation that goes too far in limiting rights to prop is a taking with just comp.
 Conceptual severence

Penn Central v. NY (No Taking): NYC passed Landmarks Preservation Law and designated Grand Central
Terminal as a protected. Plf proposed two plans to build office building on top of Grand Central. Both were denied
by city commission because it would alter landmark too much. (refer to PC test) - TDRS

Lucas v. SCCC (Taking): plf buys 2 lots to build property on, but new coastal regulations limit building –had to
keep lots in natural state. If reg constitutes a 100% diminution in economic value of prop  taking, except if
reg is preventing a common law nuisance

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Palazzolo v. Rhode Island (Taking): plf owns prop and then an act is passed limiting wetland alterations, title
transfers from his corp to him as shareholder, and he argues that reg will deprive him of 100%. Preexisting
regulation should not bar a new owner from claiming a taking – can be a factor.

Tahoe-Sierra Preservation v. TRPA (No Taking):

π bought land to build house, ∆ placed a moratorium delaying development for 32 months. No artificial prop
interest in time, look at whole property interest (disavows conceptual severance), property regains value after
moratorium ends.

Exactions

Nollan v. CCC (Taking): π owned beachfront property and wanted to build a new house, ∆ granted permit on
condition that they allow an easement along property – state must pay for easement.
If permit had not been conditioned on easement, then this would have been a taking (because the state would have
created a discreet property interest on the Nollan’s property like in Lorretto). No essential nexus between the
condition and purpose: visual access is not equivalent to or physical access.

Dolan v. Tigard (Taking): π wants to expand store. Property is within 100-year floodplain. Planning Commission
granted permit subject to dedication of land along creek for greenway and construction of bike path.
Yes essential nexus due to legitimate public purpose of preventing flooding and reducing traffic congestion, the
degree of connection, i.e. rough proportionality, between the exaction and projected impact of proposed
development was insufficient. Keeping floodplain open would have been roughly proportional but requiring it for
greenway was not; not enough connection between bike path and increased traffic; loss of right to exclude.

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Freehold Estates
Estates Roadmap
1. Name the interests
a. Fee simple absolute: “to A and his heirs”
b. Life estate: O conveys “to A for life”
i. Reversion (goes back to O) v. remainder (someone else)
c. Fee simple defeasible
i. Fee simple determinable followed by possibility of reverter
1. “to A (so long as, while used as, during the time that, until)…”
ii. Fee simple subject to condition subsequent followed by right of entry or power of termination
1. “to A (in the event that, but if, provided)…right of entry”
d. Vested remainder is given to known person and not subject to condition precedent
i. Absolutely vested remainder: “to A for life, then to B and his heirs”
ii. Vested remainder subject to open: “to A for life, then to his children” and no children have yet
been born
e. Contingent remainder is given to unknown person or subject to condition precedent
i. “to A for life, then to B if she reaches 21, otherwise to C”
ii. Always followed by a contingent alternative
f. Executory interest
i. Shifting: “to A, its successors and assignments, but if not used as library for next ten years, to
B and his heirs”
ii. Springing: “to A and his heirs but if A dies to B”
2. If the will is susceptible to interpretations, then construe in favor of devising entire estate, particularly if the
remainder would be subject to intestacy.
a. Construe right of entry in favor of covenant or contract
b. Construe in favor of vested remainder over contingent remainder
c. Construe in favor of tenants in common over joint tenancy

Rule Against Perpetuities Roadmap

1. Identify future interest
a. Must be executory interest, contingent remainder, or vested remainder subject to open
2. Identify lives in being.
a. Anyone named in conveyance, owner of property, or intervening generations alive at time interest is
created
i. If O conveys, then he is a validating life too
ii. If O devises, he is not
3. Apply rule: anything that vests within 21 years after death of life in being is valid.
a. Executory interest: when contingency occurs
b. Contingent remainder: when contingency is removed and not when it becomes possessory
c. Vested remainder subject to open: when class closes
4. Examples:
a. “To A but if A stops gambling purposes then to children of B” violates so “To A”
b. “T devises to A for life, then to A’s children when they turn 25.” A is alive at the time of conveyance
with 2 children B (26) and C (20)
i. A could have another child and then die 3 years later, child will be 23, gift wouldn’t have
vested, so breaks the rule.  A has a life estate and T has a right of reversion.

Notes
I. Ways to dispose of property
a. By will
i. Testator/testatrix writes a will
ii. Devise: leave real property to devisees
iii. Bequeath: leave personal property to beneficiaries

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b. Dying without will, i.e. intestate
i. Statutes of descent determine heirs, next of kin, or distributes
1. Usual order of heirs (note cannot have heirs while still alive!)
a. Issue: descendents, e.g. children, grandchildren, etc.
b. Ancestors: parents
c. Collaterals: all relatives who are not descendants or ancestors
d. Escheat: property returns to state
c. By trust
i. Establish trust, which is managed by a trustee for the beneficiaries in a fiduciary relationship
ii. Separates burden of property management from benefits of ownership
iii. Revocable v. irrevocable
1. Revocable: settler can change trust, usu. until death
2. Irrevocable: settler cannot change trust
iv. Major advantage is property held in trust avoids probate
d. Will substitutes
i. Life insurance
ii. Joint tenancy
iii. Joint checking account: money automatically goes to survivor
iv. Pension: designate a beneficiary (can be trust or person)
II. Estates in Land
a. Estate is interest that is or may become possessory after some time
b. Fee simple: greatest ownership possible in estate in land
i. Fee simple absolute is indefinite
c. Life estate: possessory interest for life
i. Reversions and remainders always follow and are inheritable
1. Reversion: goes back to grantor
2. Remainder: goes to another grantee
ii. Valuation is based on life expectancy tables
iii. E.g. to A for life, then to B forever
1. A has life estate, B has remainder in fee simple absolute
2. If A transfers to C, then C has life estate pur autre vie (measured by A’s lifespan, not
C’s)
d. Possessory v. future interests
i. Possessory is any immediate right to land
ii. Future might or will give right to land
1. Doctrine of Waste: possessor has duty to maintain land; future interest holder has
correlative right to possessor not destroying value of land
III. Restraints on Alienation
a. Three types
i. Disabling restraint: grantee cannot transfer interest
1. E.g. to A and his heirs but any transfer hereafter in any manner of an interest in
Blackacre shall be null and void
ii. Forfeiture restraint: if grantee attempts to transfer, then property forfeits to another person
1. E.g. to A and his heirs, but if A attempts to transfer the property by any means
whatsoever, then to B and her heirs
iii. Promissory restraint: grantee promises not to transfer, which is enforced with damages or
injunctions
1. E.g. to A and his heirs, and A promises for himself, his heirs and successors in interest
that Blackacre will not be transferred by any means
IV. Future Interests
a. Reversion: interest left in owner when he carves out lesser estate (ie not a fee simple) and does not
provide who takes property when lesser estate expires, e.g. “to A for life”
b. Defeasible Estates, i.e. defeasible fee simples
i. Fee simple determinable
1. Future interest of transferor is “possibility of reverter”

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2. Future interest becomes possessory automatically when a stated event occurs
3. Must use words that connote duration
a. E.g. so long as, while used as, during the time that, until
ii. Fee simple subject to condition subsequent
1. Future interest is “right of entry” – transferor retains power to terminate estate
2. Future interest holder must assert her property rights when a stated event occurs
3. Must use words that connote condition
a. E.g. in the event that, but if, provided
4. And must explicitly state right of entry
iii. Adverse Possession: what happens when condition is violated?
1. Statute of limitations
a. Fee simple determinable: begins to run when condition is breached
b. Fee simple subject to condition subsequent: usually does not begin to run until
right is exercised and then rebuffed
2. Open and notorious: condition broken may not be very evident
c. Remainders
i. [future interest in transferee that is certain to become possessory at expiration of prior estate]
ii. Vested remainder: given to a known person and not subject to condition, certain to
1. Vested remainder: ascertained person, not subject to change
a. E.g. to A for life, then to B and his heirs
2. Vested remainder subject to open (or divestment): later born children are entitled to
share – at least one child is born (if no children then contingent)
a. E.g. to A for life, then to his children
b. Class gifts go to more than one person in group; class usually closes when
remainder becomes possessory
i. E.g. to B for life, then to A’s children
1. Only the children alive at B’s death get it
iii. Contingent remainder: given to an unknown person or made contingent on event occurring
other than the natural termination of the preceding estate
1. Always followed by alternative contingent remainder
2. E.g. to A for life, then to B if she reaches 21, otherwise to C
a. B has contingent remainder; C has alternative contingent remainder
3. E.g. to A for life, then to B’s children (and B has no children at time of conveyance)
iv. Vested has condition attached after gift has vested whereas contingent has condition
incorporated into gift
1. E.g. to A for life, then to B, but if B should fail to graduate, then to C
a. B has vested remainder subject to divestment
2. E.g. to A for life, then B if he graduates, then to C
a. B has contingent remainder; C gets it in the meantime
d. Executory interest: future interest in 3p that cuts off other’s interest not as a result of natural expiration
i. Shifting: divests or cuts short interest in transferee
1. E.g. to A, its successors and its assignments, but if not used as library for next ten
years, to B and his heirs
a. A has fee simple subject to executory divestment
b. B has shifting executory interest
ii. Springing: divests or cuts short interest in grant
1. E.g. to A and his heirs but if A dies to B
a. A has fee simple subject to divestment; B has springing executory interest
V. Rule Against Perpetuities
a. Must prove that a contingent interest is certain to vest/terminate no later than 21 years after the death of
some life in being at the creation of the interest.
i. Balances one generation’s control of property against subsequent generations (Keeps land
alienable (not applicable to trusts)
ii. Limits dead hand’s control to generations

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Concurrent Estates
Notes
I. Tenants in common (Delfino)
a. Separate but undivided interests with right to entire parcel (unless divided by K)
i. Ownership does not have to be equal
b. Can be conveyed at different times by grant, will, or sale
c. No right of survivorship
d. Can be reached by creditors before and after tenant’s death
e. When in doubt, construe as tenancy in common

II. Joint tenancy (Riddle, Swartzbaugh)

a. Unities
1. Time: interest must be vested at the same time
2. Title: must acquire by same instrument or by AP (but not through intestate succession)
3. Interest: tenants must have equal and undivided shares, same duration and identical interests
(some states allow unequal share interests)
4. Possession: tenants each have right to possession of whole (Swartzbaugh)
b. Key feature: right to survivorship – property rights are automatically transferred to other JTs
i. Avoids probate as will substitute; cannot be conveyed by will
c. Tenant can unilaterally convey to third party, destroying joint tenancy (Riddle)
d. Creditors can only reach during lifetime of tenant

III. Tenancy by the entirety

a. All unities of joint tenancy + unity of marriage
b. About half of states recognize
c. Unlike joint tenancy, cannot unilaterally sever without consent of other party except by sale,
divorce (becomes tenancy in common), or death

IV. Remedies (Swartzbaugh)

a. Partition - Available to tenants in common or joint tenants
i. In kind: split property (common law favors this) (Delfino)
1. If can’t partition equitably, can have one tenant pay owelty
2. Supported by labor, reliance, and personality theory
ii. By sale: sell entire property
1. Modern law uses partition by sale more frequently
a. When physical attributes of the land make in kind impracticable
b. Interests of owners would be better promoted by sale
2. Supported by efficiency theory
iii. Adverse historical effect on black farmers
1. Typically died intestate; after several generations, large number of owners; one
would sell to white buyer who forced partition by sale to take land at low cost
b. Ouster
i. If cotenant refuses possession – injunction or money damages for value
c. Accounting
i. Rents and profits
1. Cotenant who collects from 3P rents must acct to cotenants for amts received
ii. Repairs and improvements
1. No affirmative right to contribution from other cotenants
2. For repairs get credit if bring accounting action, improvements credit when sell
d. Sue for waste: prop owned by both, one uses prop in way that prevents maximization of value
e. Contribution
i. Taxes, mortgage payments & other carrying charges
1. Cotenant who pays more than his share has right to contribution from other
cotenants except when in sole possession of property (jurisdictional

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V. Relations between cotenants

a. Fiduciary duties
i. Cotenants are generally not fiduciaries to each other except in some circumstances
1. One cotenant buys concurrently owned property at mortgage foreclosure or tax sale
and asserts superior title against cotenants
2. Cotenant claims adverse possession against kindred cotenants unless so unequivocal
and notorious as to put cotenants on actual notice of hostile claim
VI. Marital Interests
a. Common law
i. Common law division of property
1. Title extremely important: property held as tenants in common or JTs remained in
co-ownership but all else separate
2. Wife usually entitled to continuation of support, i.e. alimony
ii. Equitable distribution (Graham, Mahoney [p. 327], O’Brien [p. 327], Elkus)
1. Some statutes allow division of all property, some only marital, and others only
property acquired from earnings of spouses during marriage
2. Alimony gone except for rehabilitative alimony
3. Movement towards equal division
iii. At death (p. 335-37)
1. Common law
a. Dower: life estate of 1/3 to wife
b. Curtesy: life estate to husband
2. Modern law
a. Forced elective share: surviving spouse can renounce will and elect to take
statutory share, usu. 1/2 or 1/3 in addition to support
i. Forced share to protect spouse from disinheritance
ii. Joint tenancy not included in elective share because it disappears at
death
b. Community property
i. Earnings of each spouse during marriage should be owned equally
in undivided shares including whatever is purchased by earnings
ii. Separate property: prop acquired either (1) before marriage; or (2)
by gift, devise, or descent.
a. cant transfer something into separate prop by title
b. Community property
i. Compared to joint tenancy or tenancy by the entirety
1. Spouse can devise 1/2 of community property at death, unless owned as JTs
2. Cant make property separate without consent
3. No right to survivorship
4. Federal income tax advantage with stepped-up basis on death of spouse
5. Like tenancy by the entirety, cannot convey share of community property without
spousal consent
ii. Creditors can reach
iii. Mixing community with separate property – how to separate upon divorce
1. Inception of right
a. Buy as separate property, remains as separate property
2. Time of Vesting
a. Whenever it is paid off –if installments or financing
3. Pro rata apportionment
a. How much put in by community, how much as separate
c. Migrating couples
i. Ownership does not change upon change of domicile

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ii. Upon death, law of decedent’s domicile governs personal property (wherever the property
was acquired and characterized at first either as community or separate), but law where land
is located governs real property
d. Domestic partners
i. Common law marriage largely abolished
1. No longer needed due to modern transportation
2. Certified marriage made proof easy for govt benefits, pensions, and property claims

VII. Same-sex marriage (Varnum)

i. 3 levels of scrutiny for equal protection clause:
1. Economic regulation subject to rational basis test
a. As long as rationally related to legitimate state interest, defer to legislature
2. Gender discrimination and illegitimacy subject to intermediate scrutiny
a. Judged based on whether substantially related to important govt objective
3. Strict scrutiny
a. any classification that is suspect (race), need compelling state interest
i. History of discrimination
ii. Characteristics that discriminate class = ability to contribute to
society
iii. Distinguishing characteristics = immutable beyond control
iv. Political power of class
ii. Due process clause protects liberty to marry whomever you want
1. States are allowed to govern how they wish
Cases
Riddle v. Harmon: Held that a joint tenant may unilaterally sever. Riddles have JT. Mrs. Riddle conveyed her
interest to herself as a tenant in common. Joint tenants can already unilaterally sever by conveyance to 3P. No
longer need strawman fiction to terminate JT.

Delfino v. Vealencis: Held for Vealencis to partition in kind. ∆ owns and occupies a dwelling and portion of
land used for garbage removal business. No one actually possesses remainder. πs want to develop subdivision and
partition by sale.. Partition in kind is favored over partition by sale because latter is extreme.
 Partition by sale only if
(1) in kind is impracticable/inequitable and
(2) interests of owners better in sale.
Partition in kind is practicable since only two owners. Can’t assume development is more important than actual use,
no violation of zoning law and can’t assume that subdivision would not be approved with business next door.

Johnson v. Hendrickson: Partition-by-sale. Owner died intestate. 1/3 passed to widow rest to three children.
Widow remarried, bought adjacent farm, dies and left her 1/3 share to husband and two sons. Original children
demanded partition by sale. Husband and two sons asked for partition-in-kind. Partition-in-kind requires too many
divisions of land and lowers value. Ownership of adjacent farm is immaterial.

Ark Land Co. v. Harper (∆s win): πs bought 2/3 and sought partition-by-sale of ∆s land, refused to sell.
Money cant always compensate emotional attachment to land. Economic value of property in partition by sale is
relevant but not dispositive.

Gray v. Crotts: One of four cotenants demanded portion of property adjacent to his home after partition-in-kind.
If court finds:
1. Partition in kind is impractical and wasteful; and
2. Sale will not protect interests of all parties
Then the court can assign all the property to one tenant and the rest get compensated

Swartzbaugh v. Sampson (Sampson wins): Husband and wife as JTs. Husband leased portion to ∆ wife sued to
cancel lease. Each tenant owns an equal interest and has right to possession of whole so each can unilaterally
lease as long as lessee does not bar cotenant from possession. – Remedies available above.

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In re Marriage of Graham (husband wins): Wife supported husband while he got MBA. Wife claimed MBA as
marital property subject to equitable division by court. MBA is not property: (But also alimony not available to her)
1. Cant be sold, transferred, assigned, etc. (although image, social sec., pension etc is property)
2. It is personal to holder and only has potential of future acquisition of property
3. Terminable at death of owner

Elkus v. Elkus: Wife was opera singer who became famous. Husband was voice coach and helped with her career,
raised children, sacrificed own career in the process. Held that career and celebrity status is marital property.
NY statute broadly defines marital property, including career, and career potential. Precedent professional licenses
were marital property.

Varnum v. Brien – SJ to π – “equal protection” is equal protections for similarly situated people. Homosexuals are
equally situated, allow gay marriage in Iowa.

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Leaseholds
Notes
I. Types of leases
a. Term of years
i. Fixed period of time – specific start and end date, with no limit on number of years
ii. Neither party can terminate without other party’s consent
iii. No notice needed at end of term not to renew, but to renew need writing
iv. Does not terminate at death for commercial but may for residential (don’t want it transferred
via will)
b. Periodic tenancy
i. Lasts for fixed duration (usually month to month) that continues until termination
ii. Automatically renewed unless notice given; cannot terminate in middle of period
1. 1/2 year for year-to-year tenancy; equal to length of period for less than half a year
2. Statutes vary, though e.g. 30 days’ notice for month-to-month
iii. Need to give notice of termination
iv. Death usually doesn’t extinguish except in case of residential tenant, but can be overwritten by
contractual provision
c. Tenancy at will
i. No fixed period and lasts until either party ends it, or at death
ii. May not be assigned
iii. Disfavored because gives a lot of power to one party – when in doubt construe as periodic

II. Notes on Leases

a. Courts often hold “leases” to be something else, such as licenses or loans
i. Uncontested permission to use one’s land
b. Conveyance v. Contract: recent shift from property to contract law
i. Property law: traditionally, a lease transfers a possessory interest in land
ii. Contract law: leases contain promises, i.e. covenants
1. Help tenant bargaining power, pro-tenant reforms, more responsibility to landlord,
responsibility based on status
c. Statute of Frauds: leases longer than one year must usually be in writing
d. Form leases
i. buyer has no choice but to accept terms due to unequal bargaining power

III. Subleases and assignments

a. Assignment: transfer from one lessee to another of entire interest
b. Sublease: anything less than entire interest, landlord against interest holder, not subleaser
c. In commercial context, shift towards minority rule (Kendal v. Ernest):
i. Majority rule: lessor may arbitrarily refuse to approve a proposed assignee no matter how
suitable assignee appears to be and no matter how unreasonable lessor’s objections
1. If arbitrarily withhold consent then you have duty to mitigate (Sommer v. Kridel)
ii. Minority rule: consent may be withheld only where lessor has commercially reasonable
objection to assignment (Kendal v. Ernest Pestana)
1. Rationale
a. Property law: shortage of land favors free alienability
b. Contract law: implied duty of good faith and fair dealing
2. Acceptable factors to reject leasee: financial responsibility, suitability for property,
legality of use, need for alteration of premises, nature of occupancy
3. Unacceptable factors: personal taste, convenience, sensibility, to charge higher rent
than originally contracted for (Yeshiva Univ. case with the abortion clinic)
IV. Tenant’s Duties/Landlord’s Rights and Remedies
a. Self-help remedies (Berg v. Wiley)
i. Self-help is allowed when:
1. Landlord is legally entitled to possession and

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2. Landlord’s means of reentry are peaceable
ii. What is reasonable or permissible force?
1. Berg held that self-help is never peaceable because possibility of violence is too high
2. Self-help may only be theoretical but not practical option, even in jurisdictions where
allowed
iii. Modern trend has been toward prohibiting self-help
1. In some jurisdictions, applies only to residential leases
2. Self-help may violate due process of law
3. All states now have summary proceedings, which are quick and efficient means to
recover possession after termination of tenancy
a. Replaces ejectment proceedings, which were time-consuming
b. In reality, summary proceedings are time-consuming and expensive, even if
not contested
b. Duty to mitigate (Sommer v. Kridel)
i. Under common law, no duty to mitigate:
1. Duty to pay rent is separate from duty to provide premises
2. Tenant should not impose duty on landlord due to his own wrongdoing
3. Landlord should not be forced into personal relationship w/ new tenant
4. Landlord should not be required to seek new tenants “continually”
5. Law should not encourage abandonment of property: invites vandalism
6. Mitigating damages might constitute unwilling acceptance of tenant’s surrender of
premises
ii. Under contract law, duty to mitigate if reasonable
1. Rationale
a. Modern notions of fairness and equity
b. Efficiency: no duty to mitigate encourages economic and physical waste; duty
to mitigate encourages productive use
c. Prevents property damage due to unoccupied property
2. Reasonable diligence
a. Landlord must treat abandoned premises as part of vacant stock
b. Landlord has burden to show reasonable diligence
i. Offered or showed apartment to prospective tenants or advertised in
local newspapers
iii. Security Devices
1. Security deposits: deposit protects landlord if tenant defaults in rent, damages
premises, or otherwise breaches lease
2. Liquidated damages: tolerated when amt is reasonable and damages hard to determine
3. Rent acceleration: upon breach, all rent becomes payable, though landlord cannot take
possession

V. Landlord’s Duties/Tenant’s Rights and Remedies

a. Covenant of quiet enjoyment/doctrine of constructive eviction (Reste Realty)
i. Quiet enjoyment: duty of landlord to tenant – not to disturb tenant, clean, exclude, basics
1. Common Law Doctrine
a. Breach of covenant (ie constructive eviction) when:
i. Positive acts of interference by landlord and not omissions
ii. Withheld something essential to full enjoyment covered in lease
iii. Latent (as opposed to patent) defects must be disclosed at time of lease
iv. Landlord promised to make repairs and didn’t make them
v. Common area maintenance
b. Some jurisdictions expanded include: abatement of immoral conduct/nuisance
2. NJ Standard (Reste)
a. Any act or omission on part of landlord that renders premises substantially
unsuitable for the purpose for which they were leased or which seriously

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interferes with beneficial enjoyment of the premises is a breach of the
covenant –constructive eviction
b. just because you agree to defects doesn’t mean you assumed the risk
3. Duty to pay rent dependent on duty of quiet enjoyment
a. Other promises/covenants were independent
b. Implied warranty of habitability (Hilder)
i. [Implied duty to maintain premises that are safe, clean and fit for human habitation in contract
and cannot be contracted around]
1. Both latent and patent defects are covered; cannot be waived
ii. Constructive eviction extended quiet enjoyment: if premises were so uninhabitable that tenant
could not occupy, then tenant didn’t have to pay rent (Hilder)
iii. To show breach, tenant must first notify landlord and wait reasonable time
1. Then, look at housing code to see if there was a substantial violation
2. Next, look at impact on safety, health, or if its fit for habitation
iv. Remedies
1. All K remedies available: rescission of lease, reformation (modify lease), damages
2. How to determine damages for discomfort
a. Difference between premises as warranted and fair market value of premises as
defective (Hilder)
b. Difference between agreed rent and fair rental value of premises as they were
during occupancy in unsafe, unsanitary or unfit condition
3. Tenant can withhold rent and may or may not have to abandon (jurisdiction)
a. May require putting it in escrow account to show good faith
b. Landlord had notice and defect exists at time rent withheld
4. Tenant can pay for repairs and deduct from rent
v. Compared to covenant of quiet enjoyment
1. Includes omissions and not just positive acts
2. Often does not apply to commercial property
Cases
Kendall v. Ernest Pestana (Kendall wins): Lessor may only withhold consent for assignment based on
commercially reasonable objections. Perlitches subleased to Bixler, interest to Pestana. Bixler sold business to
Kendall. Bixler requested consent from Pestana who refused arbitrarily and wanted to increase rent. Law favors
alienability, esp since there is shortage of commercial land, contract law requires good faith and fair dealing.

Berg v. Wiley (Berg wins): ∆ leased restaurant to π. Berg made unauthorized changes to premises and health
violations, ordered Berg to comply. Berg closed restaurant for remodeling, and Wiley attempted to change locks.
Both called police. Wiley returned with police officer to change locks when Berg wasn’t ther. Damages for lost
profits and self-help is never allowed.

Sommer v. Kridel and Riverview Realty Co. v. Perosio: ∆ entered into lease but never moved in and gave up two
months’ rent he already paid. π did not show apartment to anyone for more than a year. Perosio entered into two-
year lease and occupied it for one year, paying all rent and then surrendering apartment. LLs have duty to mitigate
and that burden of proof is on landlord.

Reste Realty v. Cooper (Cooper wins): When it rained, water would flood office, but manager would fix when
notified. ∆ signed a new lease conditioned on fixing driveway. Manager died, and π ignored ∆’s complaints.
Moves out -- constructive eviction, which was breach of quiet enjoyment.

Hilder v. St. Peter (Hilder wins): Apt was in terrible condition, and landlord never fixed anything after promising, π
paid all her rent. Implied warranty of habitability. Landlord is in better position to fix than tenant who is
urbanized, abandonment of premises as under doctrine of constructive eviction no longer necessary. Withholding
rent is also allowed since no longer independent covenants.

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Servitudes
[agreements that create an interest in the land]
1. Real covenants
a. Enforced by damages
2. Equitable servitudes
a. Injunction

Definitions:
Appurtenant v. gross easements – cannot be revoked
a. Easement appurtenant: right to whoever owns the parcel of land that the easement benefits, right is
attached to the property
i. Dominant: enjoys use of easement
ii. Servient: burdened by easement
b. Easement in gross: gives right to person without regard to ownership of land
i. Not easily transferred except for commercial easements now

Roadmap
1. Is it a license? [Revocable permission to enter real property possessed by another]
a. Revocability exceptions
i. License coupled with interest cannot be revoked
1. E.g. license with profit (right to take things off of land) is irrevocable
ii. Estoppel: Build structures on prop - treated as easement by estoppel
2. Is there an express easement?
a. Must comply with Statute of Frauds: interests in land must be created or transferred in written and
signed unless it’s a lease under three years
b. If it’s in the deed, then it can be transferred with property if appurtenant
3. Is there an easement by estoppel? (Holbrook)
a. Permission or acquiescence by servient owner
b. Expenditure of money based on reliance on servient holder (not necessarily on easement itself)
c. Actual use of easement
d. Not all jurisdictions recognize easement by estoppel (Othen)
4. Is there an easement by prescription? (Holbrook, Othen) – all elements are relative to easement only
a. Open and notorious
b. Statutory requirement
c. Actual use
d. Hostile and claim of right/title
i. Permission is not claim of right because not adverse
e. Continuous use
f. Exclusivity – sometimes required to get it in writing
i. Othen v. Rosier: not shared with owner
5. Implied easements
a. Implied by prior use? (Van Sandt)
i. Single owner once owned entire property
ii. Necessity (reasonable necessity) existed at the time of the severance
iii. Prior to severance, one part of parcel was apparently and continuously used as easement, i.e.
quasi easement (apparent to the purchaser, constructive )
b. Implied by necessity? (Othen)
i. Single owner once owned entire property
ii. Severance/subdivision caused necessity (stricter than prior use)
iii. Necessary to enjoyment of land, e.g. landlocked or absolutely needs something, not just
convenient
1. Some courts may grant when access exists but is inadequate, difficult or costly; others
require strict necessity (esp if by reservation)

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c. By reservation: owner impliedly reserves easement across new owner’s land (disfavored because
should have written it in the deed)
d. By grant: new owner needs easement over owner’s land
e. Restatement of Property §28 factors:
i. Whether claimant is conveyor or conveyee (grant or reservation)
ii. Terms of conveyance
iii. Consideration given for it (how much money paid)
iv. Whether claim is made against a simultaneous conveyee
v. Extent of necessity of easement or profit to claimant
vi. Average reciprocity result to conveyor and conveyee
vii. Manner in which land was used prior to conveyance
viii. Extent to which manner of prior use was or might have been known to parties
f. What remedies are available?
i. Injunction
ii. Damages: either straight damages or get an easement but have to pay
iii. No relief (Othen)
Notes
II. Affirmative v. negative easements
a. Affirmative: gives right to do something on servient land, active use of land
b. Negative: forbids landowner from doing something on his land, limits use of land
i. Courts have limited these greatly

Cases
Holbrook v. Taylor (p. 677) – Taylors easement by estoppel: In 1942, Holbrooks bought property. In 1944, they
gave permission for haul road to be cut for newly opened mine. Road used until 1949 in exchange for royalties. In
1957, Holbrooks built tenant house, and used road. In 1964, Taylors bought adjoining property, built house and
used road until 1965 with permission. Holbrooks demanded money and blocked road. Not an easement by
prescription because not adverse, continuous, or uninterrupted. However, prior use by license, improvement, and
construction of house (reliance) established easement by estoppel.

Van Sandt v. Royster (p. 682) – Roysters easement prior use: In 1903-4, Bailey constructed sewer drain to
connect to public sewer on west side of lot. Then conveyed west-most lot to Jones who built a house and connected
to sewer. Also conveyed middle lot to Murphy who did same. Gray now owns Bailey’s lot, Van Sandt owns Jones’
lot, and Royster owns Murphy’s lot. In 1936, Van Sandt basement flooded and sued to enjoin. B’s quasi easement
became an easement implied from a prior use, as she reserved it when she conveyed the servient estates, had been
continuous and apparently using it before severance, and needs the easement.

Othen v. Rosier (p. 689) – No easement: In 1896, Hill conveyed 100 acres. Othen eventually bought 60 and 53-acre
tracts, and Rosier 100 and 16.31 acre tracts. Othen used roadway across Rosier’s prop. Rosier also used it and had
fence around it. Rosier built levee making roadway impassable. No easement by necessity because Hill had not
reserved an easement across 16.31-acre tract at either conveyance of 60 or 100 acres. No easement by prescription
because no exclusivity due to Rosier also using it and no claim of right due to Othen using with Rosier’s
permission.

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Covenants
VI. Discrimination in selection of tenants
a. Fair Housing Act, 1968 (p. 376; refer to covenants for roadmap)
i. Prohibits discrimination in sale or rental of housing based on race, religion, national origin,
sex, handicap, and familial status
1. Familial status (aka family with children under 18)
a. Numerical occupancy limitations can be justified on ground of maintaining
economic value of property
b. Can refuse to rent to unmarried heterosexual couple
c. Can refuse to rent based on sexual orientation
2. Exemptions
a. Single-family housing (except when owner has more than three houses) when
selling with broker and no discriminatory advertising
b. If owner lives in building with four or less units then can discriminate but no
broker and no discriminating ads
ii. Only requires proof of discriminatory effect to make out a prima facie case – don’t need motive
iii. Enforcement
1. Anyone injured by discriminatory practice may sue for injunction and damages
(including punitive damages)
2. Defendants:
a. Private ∆ can show that action was taken as a rational business purpose
b. Government official needs to show compelling govt purpose and no less
discriminatory alternative available
b. Civil Rights Acts of 1866, U.S.C.A §1982
i. All citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and
personal property.
ii. Bars all racial discrimination, private and public, in sale or rental of property
iii. No exemptions
c. Fourteenth Amendment
i. Prohibits discriminatory, esp. racial, state action under equal protection clause
ii. However, discriminatory private action may be prohibited as well under Shelley v. Kraemer
1. Not every court action is a governmental action just because it has to be enforced by
the govt (ie breach of K)
d. State and local legislation
Many have broader reach than FHA and might cover discrimination based on age, sexual orientation, marital status,
and occupation

Roadmap:
1. Would this behavior be otherwise unconstitutional by the state?
2. Is there state action in enforcing the action?
a. What type of state action?
i. To enforce discrimination?
ii. To enforce constitutionality
b. Intensive?
i. Employment, housing prohibitions if enforced by the state would be unconstitutional

Cases
Shelley v. Kraemer (p. 783)
In 1911, thirty out of thirty-nine property owners signed covenant banning blacks from occupying property for fifty
years. In 1945, blacks bought property, and neighbors sued to enforce covenant.
Held for Shelley that covenant cannot be enforced by government under 14 th Amdt.
Equal protection clause of 14th Amdt. guarantees equal rights by government but not by individuals, so covenant by
itself is OK. However, constitution is violated by state enforcement of racially restrictive covenant

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