Property Outline 1

Acquisition of Property Rights:

First Possession of Property Rights:

o Introduction to course, excerpt from Steven Friedland, Teaching Property Law: Some Lessons

Learned, 46 ST. LOUIS U. L. REV. 581 (2002), on TWEN, Course Materials.

Themes of property law:

property as relationships among people e.g. nuisance, health and safety risks

property as something of value; diff people can have rights in the same property

labor as value of land (Locke)

The schema that Friedland presents also reflect themes we will encounter throughout the

course. Be clear on those schema.

Bundle of sticks: (not absolute, can be sep/split among diff people)

Right to possess the property e.g. road-widening; not absolute

Right to transfer the property e.g. fair housing act

Right to use/occupy the property (but, zoning)

Right to exclude others (but, can’t exclude invitees)

o Acquisition by Discovery, 3-18; excerpt from Eric Kades, History and Interpretation of

the Great Case of Johnson v. M’Intosh, (two titles, one US and one Native American)

How would you state the rule of law in M’Intosh? Investing labor creates

superior prop right. First in time wins. Discovery rule: Europeans agreed

amongst themselves that when they discovered new land not discovered by other

Europeans, they claim it and the others would respect it. How does the Court

justify its holding?

o Acquisition by Capture, 18-26; 30-40

Who is held to have a property interest in the animals in Pierson and Keeble?

What is the rationale for awarding property rights to the winners? What is your

evaluation of that rationale?

Pierson v. Post: Fox pursuit case; Rule = hot pursuit is not enough, must

have the animal in control and deprive it of its liberty; shows the tension

between labor and time; promotes certainty; easier to administer

Keeble: duck pond case; neighbor scared away ducks; rule = landowners

are considered prior possessors of wild animals on their land; encourage

duck hunting; labor v. time (but P doesn’t have first possession)

o Acquisition by Creation (ideas and expressions), 56-64.

What property right, if any, does AP have in its news? Why? Is there a

relationship between the dissemination of news and the killing of a wild fox?

If you create something (first in time) then it is yours to exploit, but not always

Associated Press: (news org taking news from AP and using it for their paper)

Is there a property right in news? If yes, does it survive after paper is

published? Yes, quasi property between news competitors because

seeking profit. Neither party has a prop interest as against the public;

shouldn’t be able to profit off other’s labor (labor theory)

Cheney Bros: silk scarves case; “stealing patterns?” = no!

Patents: limited monopoly for “inventions” – products or processes; but must be

new, useful, and not obvious

Property Outline 2

Trademarks: protection for words, symbols, other indicators of source or service;

based on use e.g. delta faucets and delta airlines; 3 requirements: distinctiveness,

non-functionality, first use in trade;

Copyrights: protection for creative works like books, art, music, etc.; limited to

expression and not ideas; fair use is allowed e.g. Weird Al

o Acquisition by Creation, cont. (persona, person), 83-103

Our focus in Moore is the conversion claim. What are all of the reasons the court

harnesses to deny the claim? In what ways is this case similar to, or different

from, our prior cases regarding the acquisition of property rights?

The Right of Publicity: White v. Samsung: Vana White robot; using her likeness;

argues CL right of publicity; SC says not her name/likeness, celebrity has

invested into their identity (labor); people don’t mistake the two

Moore: transformed cells into immortal cell line for research and patented that;

you can sell things e.g. plasma that are replenishable, not organs; he could have

negotiated a better deal if he had known; SC holds that P did not have a COA

because its not unique (we all have cells), would create more litigation and stifle

research, abandoned waste; labor? Scientist put in the labor w/research = $$

o Right to Exclude, 104-113. Can you reconcile Jacque and Shack?

Makes the difference between public/private property, but not absolute,

limitations e.g. ambulance, police, etc.

Jacque: mobile home delivery case; TC says did trespass = $1 nom and $100k

punitive damages; they knew it was wrong; trespass needs to have teeth

State v. Shack: migrant workers living on shack on farmer’s land; dr & lawyer

coming and trying to talk to them privately, he refuses; arrested for trespass; was

it? No, they were invitees, farmers invited workers to live there = rights to those

services

Pocono Springs: unusable lots; tried to abandon; HOA didn’t want to let them

out of paying dues; Rule: abandoned prop is that which an owner voluntarily

relinquished all right, title, calim, and possession with the intention of

terminating his ownership, but w/out vesting it in any other person and w/the

intention of not reclaiming possession, ownership, enjoyment, etc. Holding: no,

you cannot abandon this real prop in the way you would personal prop (taxes!)

Subsequent Possession of Property Rights:

o Acquisition by Find, 125-144. What is the general rule regarding finders’ rights? What

are the factual distinctions that give rise to variations of this rule? Do these factual

distinctions really matter? Why or why not?

Armory: Chimney sweep finds ring, jeweler gives it back to him w/out the jewel,

Rule = finder has the right as to everyone except the true owner or prior finders

Hannah: quartered soldier finds a brooch; Rule: the finder of an object has

superior rights even of the owner when the owner doesn’t have control of the

item (only owner who has never been to the prop; narrow)

Bridges: money found on the floor; who has control of it

SS Water: cleaning pool and finds two rings; rules for homeowner; it was in the

pool = it was in the land = possession of the homeowner

Elwes: boat found while mining; rules for landowner; fairness

Rule after Hannah: When a true owner of lost chattles does not claim property, it

belongs to the finder whe:

Property Outline 3

It is not embedded or underneath the ground, AND

It is found on private property that had never been occupied by the owner

and the owner had no knowledge of the object, OR

It is found on a business premises open to customers and the business

owners do not take steps to control the property

But, it belong to the owner of the premises, not the finder, when

o The finder is employed by the owner of the location, OR

o When the property is embedded in or underneath the ground

McAvoy v. Medina: customer found lost wallet and left it with store owner;

demands it back when no one claims it; rules for owner; wasn’t lost just

misplaced

o Acquisition by Adverse Possession, 144-150; Brown v. Gobble, on TWEN, Course

Materials; 159 (beginning with Note 2) -163.

Be clear on the elements required to establish adverse possession as well as the

separate rules related to each element. Under Gobble, does the possessor need a

particular state of mind to prevail? (See note 2). What state of mind, if any,

should the law require of a possessor for a successful claim?

Brown v. Gobble: survey shows their land extends two feet past fence; tacked on

prior owner’s use of the land (total of 40+ years)

Elements of AP:

Adverse/hostile

Actual possession

Open and notorious

Exclusive

Continuous

Under claim of title or color of title

All for a period of ten years

o Adverse Possession, cont., 164-178.

How does a mistaken improver (or innocent trespasser, as Mannillo discusses)

differ from an adverse possessor?

Manillo v. Gorski: Son expands entrance to house to encroach on neighbor’s land

by 15 inches; Incursion Rule: if the AP is only a minimal incursion of the prop,

the neighbor must have actual notice of the incursion; makes it more difficult;

must actually tell them, survey that tells them (Gobble); also looks at intent and

whether they needed to know they were encroach; still same result that

landowner was neglectful of his property

If they cannot remove the encroachment w/out great expense/hardship,

owner may be forced to convey the land upon payment of fair value

Howard v. Kunto: Beach house deeds off by one; continuous/long enough even

tho only summers b/c that was normal use, needs to be suff connection between

owners for tacking e.g. selling, so as not to encourage squatting; tacking = needs

to be chain of privity; show w/chain of title, gift of transfer

Limits of AP: can’t AP against the gvt; can’t if true owner has disability (minor,

unsound mind, imprisoned), can’t combine successive disabilities

o Acquisition by Adverse Possession (chattels), 178-189.

Property Outline 4

What is the difference between the discovery rule in O’Keeffe and the demand

rule in Guggenheim (note 3)? Which rule is better and why?

O’Keefe: claims three paintings were stolen but owner says he purchased

them from O’Keefe’s husband, who was owner of the gallery; could thief

transfer title? No; Discovery Rule: SOL would begin when the injured

party discovers or should have discovered by exercise of reasonable

diligence and intelligence, facts which form the basis of COA; same

rules for AP; hard to prove open and notorious for art, burden on owner;

Demand and refusal Rule: system for NY, until the owner demands it

back and is refused; better for museums;

o Acquisition by Gift, 189-206. Work through the problems following Newman, in

paragraphs 2-4. Be able to justify your result.

Three basic requirements

intent to transfer title by donor

delivery of property

acceptance by done

Newman v. Bost: woman caring for old man then he dies; his estate tries to keep

her from getting what he left her; court says she is only entitled to what they key

opens; what he had present intent to give her; there are gifts given right before

death and gifts given during life (e.g. Julia’s piano)

Gruen v. Gruen: Son says father gave him painting $$ but borrowed it to keep in

his office; dies; stepmom says it goes to her; was there present intent and delivery

(constructive = access, symbolic = document)

Co-Ownership of Property and Marital Property

Common Law Concurrent Interests (types, characteristics & creation; severing joint tenancies;

joint bank accounts), 343-357

o Tenancy in Common: default; freely alienable; separate but undivided interests in the

property; each tenant in common owns an undivided share of the whole; have right to use

the whole; fractional shares can be transferred during life or at death, no right of

survivorship; most alienable

o Joint Tenancy: hold unequal and undivided interest in the same property w/equal rights to

use and possess the property; right of survivorship (1/3 dies ½); keeps in family;

minimizes probate; regarded as single owner; to create, must be created at the same time,

same title (instrument), same interest (equal shares and duration), equal possession; one

JT could take out interest and create tenancy in common; trend is moving away from four

unities and to intent test

o Tenancy by the Entirety: special concurrent interest for married couples; like JT in the

four unities + created in husband and wife; surviving tenant has right of survivorship;

must convey together; divorce terminates; exists in less than half the states; can’t bring

action for partition except for divorce; courts split on whether creditors of one spouse can

seize TBE property; meant to protect wife

o Avoidance of Probate: JT avoids the problem (costly, time, no interest passes); JT cannot

pass her interest in a joint tenancy by will;

o Riddle v. Harmon: Woman tries to terminate a JT by conveying her interest from herself

as JT to herself as TIC; court upholds = one JT may unilaterally severe the JT w/out use

of a strawman; policy = efficiency, could put prop in danger

Property Outline 5

o Harms v. Sprague: 1 brother signs mortgage for lover; then brother dies and lien on house

and bank wants the second half of brothers’ house; mortgage was executed by less than

all of the JT’s; the mortgage on the JT property was not a lien after the death of the JT

and did not sever the unities of JT, did not transfer title, thus the surviving T became sole

owner of the property;

Common Law Concurrent Interests, cont., (relations among concurrent owners – partition,

sharing the benefits and burdens, note on accounting), 357-382.

o Delfino v. Vealencis: V had 45/144 of the prop, lived there, business on the prop, only

stores the garbage trucks there, not actual trucks; holds that Partition by sale would not

best promote the interests of the parties; looked at physical characteristics of prop; favors

partition in kind over sale (only for emergency); can only order a partition by sale when:

1. physical attributes of the land are such that a partition in kind is impracticable

or inequitable, or

2. the interests of the owners would be better promoted by a partition of sale

BOP is on the party requesting the partition by sale to show it would better

promote the

Modern practice is to decree sales in partition in great MAJ of cases

o Benefits and Burdens:

Accounting: relates to receipts

Equitable action where co-tenants petition court to require another to

state the income, rents, or profits for the property and to give the P her

share

Concurrently owned prop can yield benefits to cotenants but can also

bring about expenditures

In all states, a CT who collects from 3rd parties rents and other payments

arising from the co-owned land, must account to CT’s for the accounts

received, net of expenses

A CT paying more than his fair share of taxes, mortgage, etc. generally

has a right to contribution from the other cotenants

o Spiller v. Mackereth: owned building as TIC; P began using it as warehouse; D

demanded either vacate or pay for half the rental value; Court holds each co-owner has

the ability and the right to use the ENTIRE property (P doesn’t have to move it all out);

ouster: if they have kicked out, ousted you , preventing you from using the property

(proves interference w/use of property, but has to have attempt denied), constructive

ouster is when absolutely impossible for co-owner to use prop based on other co-owner’s

use

o Swartzbaugh v. Sampson: walnut farm; husband and wife owned as JT; husband added

boxing ring; wife sued developer and husband for injunction; holds that husband has the

right to use the entire property, can lease out his right, only thing she can do is to sue for

ouster; an estate in JT can be severed by destroying one or more of the unities but didn’t

happen here; JT can compel rent; JT cannot bind or affect right of other w/out consent of

other; JT cannot lease w/out of CT; JT is entitled to possession of entire property

o Expenses and Contribution:

Contribution: duty to share expenses require to maintain ownership of prop

Co-owner can seek reimbursement from fellow co-owners for certain

types of expenses

Property Outline 6

No affirmative right to contribution from other CT for repairs unless

agreement

CT has no right to contribution from other CT for expenditures for

improvements

Carrying Costs: e.g. taxes; can’t be a hottub

Exclusive Possession Exception

Anything that could forfeit the property

o Injunction Against Waste: co-owners can’t commit waste e.g. turning into a dump

o Necessary Repairs: e.g. foundation crack, water leak from roof

MAJ says no right to contribution (grey area, vague, subjective) WA allows if

notice given; BUT can get the costs back that the court deems reasonable &

necessary BEFORE the proceeds of the house are divided

o Multiple-Party bank accounts

joint accounts: "A and B", "A or B"; Current Use and Survivorship; most

common; both parties can use and both have survivorship; "true joint

tenancy" bank account: deposit $ with intention of gifting to other tenant 1/2;

"convenience" account: only draw on to use for bills, no survivorship rights;

many banks are weary of power-of-attorney accounts and prefer joint accounts;

all purpose account = invites litigation to establish true intention of depositor;

e.g. if heirs can establish putting Jt's name on the account was only for purpose of

paying decedent's bills, then money could belong to decedent's estate and not

joint tenant

MAJ surviving joint tenant takes money remaining on deposit in joint account

unless clear and convincing evidence a convenience account was intended

savings account trusts (Totten Trusts)

"B, in trust for A"; Current use; e.g. to parent to use for child, and only for child

while the child is alive, caring for elderly relative; limits on how you can use the

funds and allow someone to sue if you misappropriate the funds

payable-on-death accounts "A, payable on death to B"; all it is is survivorship; some states allow b/c should

do in a will; in some jdx's not permitted because viewed as a testamentary

instrument that is not signed and witnessed in accordance with the requirements

of the Statute of Wills

o Relationships Among Concurrent Owners: policy: fairness and efficiency;

o Remedies Available to Co-Owners:

Partition: judicial remedy to terminate JT or TIC; two kinds 1) in kind: physically

divide up real estate [alienability, to keep the peace] 2) by sale: ordering auction

sale of prop then dividing up $ based on share)

Concurrent landowners may decide to terminate a cotenancy, in event that

voluntary agreement is impossible, recourse to equitable action of partition is

necessary; available to any JT or TIC, unavailable to TBE

Marital Interests (common law system), 383-407

o Community Property (Spanish Tradition) marital property is kept separate; that they

acquire in their own name; anything you get before marriage e.g. inheritance, gifts;

(income in concept)

Three schemes: 1) hold all prop in sep ownership 2) hold prop acquired from

earnings as comm prop and inherited as sep 3) hold all prop from all sources as

comm prop

Property Outline 7

Property acquired or possessed by either husband or wife is presumed to be

comm prop unless proved otherwise by preponderance of the evidence

Big diff between CP and JT/TIC: Cp can only exist between husband/wife,

neither spouse acting alone can convey prop except to other spouse; at death each

partner has power to dispose of by will one half at death (no survivorship); at

death of one spouse prop receives tax advantage

Management of CP: each T cannot coney his undivided interest; most CP states

give both equal management powers; must act in good faith but good judgement

is not necessary; creditors of managing spouse can reach whatever CP the spouse

is legally entitled to manage

Mixing the two: not all state in agreement, diff rules as to the time it is

determined

Migrating couples: depends on domicile of the spouses when the prop is

acquired; once prop has been characterized does not change when parties move;

CL state gen recognize CP when brought in

Rights of Domestic Partners: CL marriage is only recognized in 10 states

o CL/Sep Prop: prop that a spouse can own and manage on their own w/out consent of

other spouse; things brought into marriage, gifts, inheritance; upon divorce, prop of

spouses remained the prop of spouse holding title; held in TBE was converted into TIC;

placed emphasis on way title was held (e.g. in husband’s name) and largely ignored

wife’s contributions

o No fault divorce trend; rule of “Equitable distribution”

o Sawada: husband got in car wreck and didn’t have insurance; sisters seriously injured

that he hit; go after husband’s home (his only asset) wanted to attach lien from prior suit;

but husband transfers ownership of house to children. Fraud? No, court says can’t attach

debt of one to TBE of the prop; not fair to wife; dissent says should be equal;

o In re Marriage of Graham: divorce, but during marriage wife had worked full-time to

support husband getting his MBA. Court held that the MBA was not marital property

which was subject to division by the court; doesn’t have cash value, loan value,

redemption value, lump sum value, or value realizable after death = what makes up

wealth; couldn’t be assigned, sold, transferred, conveyed, or pledged, didn’t terminate

upon death; not encompasses by broad view of property; just achievement

o Elkus v. Elkus: famous opera singer whose husband was coach, dedicated life to her;

husband was entitled to distribution of fame as marital property; broad def of marital

property; doesn’t need to be license as a business; the nature and extent of contribution of

husband determined the status as marital property

Marital Interests, cont. (termination by death; community property system), 407-419 and look up

and bring to class R.C.W. 26.16.010, R.C.W. 26.16.020, and R.C.W. 26.16.030

o Termination of Marriage by Death of a Spouse

English: land should stay in patriarchal family and support widow

Dower: gift made by bridegroom at wedding; law gave dower to a surviving wife

in all freehold land of which her husband was seised during marriage and that

was inheritable by the issue of husband and wife; was life estate in 1/3 of each

parcel of qualifying land; but extinguished if she died first

Curtesy: at wife’s death, widower was entitled to life estate in each piece of

wife’s real prop if certain conditions were fulfilled; attached to all freehold land

of which wife was seised during marriage and that was inheritable by the issue of

Property Outline 8

husband and wife; but did not attach to land unless issue of the marriage capable

of inheriting the estate was born alive; abolished in all but 4 American jdx

Take away: both husband and wife must sign deeds to land to release dower,

even though the title is only one of them

o Modern Elective Share: post-civil war era “forced share legislation” giving surviving

spouse an elective share in all prop; entitled to ownership share, not just support

Elective share statutes: surviving spouse can renounce the will and elect to take a

statutory share; usually larger, only to the prop that spouse owns at dealth, not to

JT or insurance proceeds, need to say equitable division by judge

Leaseholds: Landlord-Tenant Law:

The leasehold estates and the lease, 441-453; RCW 59.18.200

o Types of Leaseholds:

Term of years: agreement that is set to expire at the end of a certain period; has

specified end date; don’t need notice; both T and LL know that is the date you

are supposed to vacate and LL can rent to someone else; could be months

Periodic tenancy: auto renew until one or both parties stops it; LL doesn’t know

when T is leaving, need to provide notice to terminate, e.g. month-to-month give

a month’s notice; notice must come 6 months before terminate; if you don’t give

enough notice you have renewed for another term; policy: give LL enough time

to find new T; most states are shifting to 30 days notice

Tenancy at will: messy, no period, express or implied, year or more has to be in

writing; must go through eviction proceedings or proper notice when you want

them to leave but most states require 30 days notice,

Tenancy at sufferance: LL suffers, brief period when T was supposed to move

out but didn’t, very common, LL has two options: eviction or consent (to some

sort of lease going forward)

o Is it a lease? License? Conveyance? Lease transfers a possessory interest in land so it’s a

conveyance that creates prop rights;

o Garner v. Garish: “priv of termination at a date of his own choice”; ruled lease creates a

life tenancy, which can be terminated by the lessee or at the altest, upon his death. Lease

grants a personal right to named lessee to terminate at a date of his choice; create a life

tenancy terminates at the will of the lessee or at the latest upon his death.

o Hannon v. Dusch: Lessee discovered tenants that would not leave the prop he was trying

to move into; LL only has to put T in legal possession, not actual possession, and no duty

to delivery. Case law remains divided on issue; under American Rule, T’s remedies are

against the person wrongfully in possession, may sue to recover possession & damages

o Subleases and Assignments:

Assignment: T’s transfer of all of her interest for the remainder of the lease term;

assignee takes over rest of T’s estate, taking same thing T had rather than less

Sublease: is something less, T transfers only part of the remaining lease term; T

who sublets retains some interest in the lease – a reversion; creates an entirely

new k’al relationship between T and sublessee (LL isn’t involved)

o Privity of estate: LL can sue T; based on mutual/successive interest in same prop; if LL

wanted to sue he could sue on POE; if sublessee destroys apt, T could sue SL based on k,

but no PE

Property Outline 9

o Ernst v. Conditt: race track case, assignment or sublease? Assignment which = LL could

sue new T for making “improvements”; Rule: if the transfer is a sublease, no privity of k

and D could not be liable to pay rent and the expense of removal of the improvements; if

assignment, privity does exist and D would be directly liable for $; An assignment

conveys the whole term, leaving no interest nor reversionary interest in the

grantor/assignor; CL distinction: if instrument transfers lessee’s estate for the entire

remainder of the term = assignment; if less than entire term = sublease

o Two ways to distinguish: formalistic and intention of the parties

Selection of tenants (discrimination); delivery of possession, and the tenant who defaults 453-

470; 482-488; problem 3, page 456 (Mrs. Murphy questions).

o Fair Housing Act: unlawful to refuse to rent, sell, or negotiate b/c of race, color, religion,

sex, familial status (not kids), or nat’l origin; cannot discrim in terns, condition or priv of

sale or rental b/c of…; make, print, or publish advertisement that indicates a preference,

limitation, or discrimination based on… (last one gets people into trouble)

To prove, can show disparate treatment, or

o Exceptions: 1) single family house sold or rented by owner as long as living there, 2)

rooms or units in dwelling no more than 4 fam where owner lives in one; but do not apply

to advertisements

o Civil Rights Act: all citizens of the US shall have the same right as is enjoyed by white

citizens to inherit, purchase, lease, sell, hold, and convey real and personal property

o RCW 49.60.030: state level act, adds families against children, leaves out unmarried

couples, students

o Berg v. Wiley: T had health code violations, locks out LL so LL picks locks and changes

them; court rules that self-help constituted a nonpeaceable entry giving right to damages;

LL may use self help to retake if 1) LL Is legally entitled to possession, and 2) LL means

of reentry are peaceable (not violence inducing) want to discourage self-help

The tenant who abandons possession 492-522.

o Somer v. Kridel: wedding canceled, student who couldn’t pay rent; LL demands rent; LL

has a duty to mitigate damages by making reasonable efforts to re-let an apt wrongfully

vacated by T; fairness and equity; no expenses incurred, look @ facts e.g. if apt was

advertised, shown, T could show there were good T’s who were rejected; RST says

should not encourage abandonment of prop; “surrender” is a term of art = T’s offer to end

a tenancy; 42 states + DC have duty to mitigate damages

Rights, duties and remedies (quiet enjoyment, constructive eviction, illegal lease, implied

warranty of habitability)

o Rent and Damages: LL’s right to sue for back rent and damages occasion by the T’s

breach of lease obligations is straightforward; if T is in possession, Ll may also term the

lease and recover possession; doctrine of anticipatory breach; but absent statute,

anticipatory breach is gen unavailable

o Security Devices: purpose is to protect LL but limits are placed on the amount; create a

trust relationship, must be placed in trust or escrow account, NOT to be co-mingled

w/other funds; LL must pay interest; LL must submit itemized list of deductions from it;

penalties are levied for violations

Rent acceleration: T’s default = all rent for term is due & payable (MAJ)

o LL’s Duties: disputes between T and LL 1) T wishes to vacate or stay put pay less (no)

rent 2) T injured by defective premises and claim damages angst the LL in tort

Property Outline 10

o Village Commons v. Marion County Prosecutor’s Office: Prosecutor’s office signed lease

for basement office; LL duty to maintain common equipment; serious serious issues and

problems, mainly water intrusion; LL said would fix but didn’t b/c of $; Rule = T will be

relieved of obligation to pay if the LL deprives T of possession and beneficial use of any

part of the demised premises by actual eviction; water was recurring, LL’s own acts

o Cov of Quiet Enjoyment: implied right to possession, occupancy, beneficial use of every

portion of leased premises; creates duty for LL to provide suitable premises

o Constructive Eviction: condition of the leased premises amounts to a breach of the cov of

quiet enjoyment AND if the breach is so substantial as to justify the T absenting the

premises AND if T leaves w/in a reasonable amount of time

o Actual Eviction: being physically removed or kept out by LL

o Partial Eviction: actual and constructive; relieved of all liability even if only kept form

part of premises if actual but not constructive

o The illegal lease: does not apply if code violations develop after making of te lease; T

under illegal lease is tenancy at sufferance; LL is entitled to the reasonable rental value; T

could w/hold rent and stave off L’s action to evict (doctrine is dead)

o Hilder v. St. Peter: sewage backs up in apt; only oral lease, had paid all rent due, P

cleaned up ALL sewage for security deposit but D denied receiving; P discovered several

defects and items in disrepair, fixed w/own $ [but stays in apt]; implied warr of

habitability exists, requiring the LL to deliver and maintain through the lease, premises

that are safe, clean, and fit for human habitation, covers all latent and patent defects in the

essential facilities of the unit (vital to use); must give notice and time to fix; cannot be

waived nor can T assume risk by acknowledgment; P may w/hold rent or seek damages

MIN rule, not always in commercial leases;

Don’t have to leave, tons of diff damage option, more about making livable

o Policy behind leaving caveat emptor: 1) value of prop used to be land itself, now is the

house 2) we are no longer a useful/handy society (invisible problems)

o Must be willful and wanton AND essential to health/safety of T to get punitive damages

Transfers of Land (the Land Transaction):

Introduction to buying and selling, 541-558.

o Caveat Emptor: buyer beware; trend is away from it; CL rule, exceptions (fraudulent

misrepresentation: seller makes a rep of fact & must know or should have known what is

wrong is material to the males e.g. roof leaks, made falsely w/the intent of misleading and

buyer 1) justifiably relied 2) suffers injury as a result)

o Executory: title is not transferred immediately upon signing, must do certain things

between k and closing e.g. title search, abstract of title, etc.

o “good and merchantable title” = most important phrase

o Timeline: research/prep – buyer submits offer – mutual acceptance of offer – exec period

– closing

Contract of sale (statute of frauds, marketable title), 570-580.

o Statute of Frauds: except for lease for less than 3 years, no interest in land could be

created/transferred except by signed instrument by party bound

o Intended to prevent fraud and clarify essential terms of agreement

o Essential terms: ID of parties, price, prop description, expression of intent to buy/sell,

signatures, etc.

Property Outline 11

o To satisfy: signed by party to be bound, describe the real estate, state the price (may be

implied e.g. fair market value)

o Exceptions: less than a year, adverse possession, part performance, estoppel (when

unconscionable injury would result from denying k after one party has been induced by

the other to change his position on the k)

o Hickey v. Green: Buyer sells old home hoping to buy new one; seller reneges and sells to

another for more $; Rule: An exception to the SOF is when a party to the oral k partially

performed in reliance on the oral k. Part perform allows the specific enforcement of an

oral k when particular acts, such as selling your home, have been performed by one of the

parties to the agreement. Had changed position based on the k (sold home); injustice

o Writing: e-sig., k or other record may not be denied legal effect/validity b/c it is

electronic form; weakened the SOF?

o Marketable Title: a title not subject to such reasonable doubt as would create a just

apprehension of its validity in the mind of a reasonable, prudent, and intelligent person,

one which when guided by competent legal service, would be willing to take and for

which would be willing to pay fair value; seller must convey it; if not buyer can rescind

o Lohmeyer v. Bower: (2-story house code violation) A violation of a city ordinance as well

as the other violations makes this title unmarketable and doubtful; MT = free form

reasonable doubt; doubtful if exposes party holding it to hazard of litigation; defect must

be substantial character and one which may cause injury

Contract of sale, cont. (duty to disclose defects, implied warranty of quality), 582-602.

o Stambovsky v. Ackley: haunted house sale; was undisclosed condition that impairs value

of the house grounds for recision of k? Yes, where a condition which has been created by

the seller materially impairs the value of the k and is peculiarly w/in the knowledge of the

seler or unlikely to be discovered by prudent buyer exercising due care w/respect to the

sale, nondisclosure constitutes a basis for rescission as a matter of equity; overrides even

an express disclaimer; seller’s fault for publicizing house; not physical condition of house

o Johnson v. Davis: seller knew the roof leaked but affirmatively represented that there

were no problems; heavy ran = buyer sues for rescission of k; When a seller knows of

facts materially affecting the value of the prop, which are not readily observable and not

known to buyer, seller is under duty to disclose to buyer; fraudulent concealment (obj &

subj test); diff between action and inaction; fairness and equity; erosion of caveat emptor

o Merger: k merges into the deed; buyer can no longer sue seller on promises in the k of

sale not contained in the deed, but must sue seller on warranties contained in the deed

(exceptions of fraud, collateral agreements, etc.) now in disfavor

o Implied Warranty of Quality: CL = conveyances of real prop carry no implied warranties

of quality or fitness (caveat emptor); exception for new construction; applies to people in

the trade of construction (e.g. not your handyman uncle)

o Lempke v. Dagenais: structural problems with garage built by D; prop sold to P; P sues;

can P sue w/out privity of k for defects on basis of implied warranty of workmanlike

quality? Yes, privity of k is not necessary to sue builder/contractor under an implied

warranty theory for latent defects which manifest themselves w/in a reasonable time after

purchase and which cause econ harm; implied warr can transfer to sub purchaser and

cover defects that arise in a reasonable time; fairness, might be some time before the

defect appears, builder should know & best repair; buy/sell is quick now

The deed: the piece of paper that affects the transfer of property;

Property Outline 12

o handed over at closing; has to be in writing based on the SOF; needs names of the parties

& sig of seller;

o Six Covenants in Warranty Deed:

Present covenant: can be breached at the time the deed is delivered

Cov of seisin: seller promising ?

Cov of right to convey: promises that they own it and convey it; pretty

limited; not doing it outside your authority

Cov against encumbrances: no liens, mortgages, etc.; can be problematic

on foreclosed properties

Future covenants: promises about things going forward, will not be breached

until something happens in the future

Cov of warranty: tied to seisin, seller will come in and sell for lawsuit if

someone claims they own it (3rd party assertion of ownership)

Cov of quiet enjoyment: same as warr; no one can kick you out

Cov of further assurances: lots of commercial k; will provide you with

evidence if you need it in the future e.g. adverse possession

o Warranties of Title:

Three types of deeds:

General warranty deed: warrants title against all defects in title, whether

arose before or after grantor took title

Special warranty deed; warranties only against the grantors own acts but

not acts of others; could still have fights;

Quitclaim deed: no warranties of any kind; but cheaper (1/2)

o Forged deeds: shouldn’t punish the third party, kind of sad

o Estoppel by deed: grantor conveys land to grantee that the grantor does not own, and the

grantor warrants the title to the line; if grantor acquires title to the land, the grantor is

estopped to deny that he had title to the land at the time of purchase and that title passed

to grantee; should put deed on notice!

Delivery: deed must be delivered to be effective (as well as acceptance and intent to transfer)

o Sweeney v. Sweeney: two deeds, one deed destroyed in fire; Rule = if a deed has been

formally executed and delivered, the presumption that the grantee assented to the transfer

of the title/possession can be overcome only if there is evidence that no delivery or

transfer was intended in fact; worried about fraud, needs to be voluntary

o Rosengrant v. Rosengrant: Husband/wife and husband has cancer, nephew takes care of

their farm while away, promises it to him in deed stored in safety deposit box, but

nephew recorded after their death. Wasn’t delivery b/c wasn’t a present transfer: could

take it back, invalidated the will; husband continued to operate farm as his own

The mortgage, 645-661.

o Fannie Mae/Freddie Mac created market to buy/sell mortgages

o Deed of trust: borrower holds title to the land to a person to hold in trust to secure

payment of the debt to the lender

o Basic Money Mortgage: sign a note (says the amount, can sue you); sets out structure and

creates lien if you default; home is yours

o Land sale installment k: keep property in bank’s name, home still stays w/seller, don’t

own property until last payment, protects bank and seller, some states allow

Property Outline 13

o Murphy v. Fin. Dev. Corp: P’s fell behind on mort, paid back back payment but not legal

fees and late fees, house was sold at sale, and sold for low price and buyer was only one

at the auction; banks have two fiduciary duties: 1) good faith (not bad faith) 2) due

diligence: have to act in same way reasonable seller would to obtain fair price; bank

owned P fair market value

Private Land Use Controls: The Law of Servitudes:

Easements (history, creation, distinguished from licenses), 809-823.

o How to create: Prescription, Implied by Use, Necessity, Grant,

o Conditions on your prop: judicial control (e.g. nuisance), private control (e.g. servitudes),

legislative control (e.g. zoning)

o Servitude: an obligation or a burden imposed on prop typically for the benefit of another

prop owner

o Affirmative easement: Gives the neighbor the right to enter/perform an act on servient

land; right to use the land of another e.g. beach access

o Negative easement: forbidding one landowner from doing something on his land that

might harm neighbor; right to not do something, to restrict can use their land

o Real covenant: more of a k right than prop; same thing as neg easement, but can sue for

damages but hard to prove and pass on,

o Equitable servitude: can get injunction

o Easement appurtenant: gives that right to whomever owns a parcel of land that the

easement benefits (both serv and dom tenement); attaches to and benefits dom;

transferrable but can be made personal, has benefit and burden; harder to prove; look for

intent e.g. testimony of old owners

o Easement in gross: gives the right to some person w/out regard to ownership of land; not

benefit any land (a person/party), involves only serv estate, may be in/alienable;

sometimes personal but do not attach to land; intent or commercial;

o Dominant: one that receives the benefit

o Servient: one that is burdened by the easement

o Easement by grant: when a prop owner gives the easement e.g. creates a deed that gives

away an easement

o Easement by reservation: when prop owner would sell the prop but serves an easement

for himself

o License: oral or written permission given by occupant of land allowing the licensee to do

some act that would otherwise be trespass e.g. plumber; revocable EXCEPT 1) coupled

w/interest that cannot be revoked, 2) becomes irrevocable under rules of estoppel

o Willard v. First Church of Christ, Scientist: old lady owned two lots and let church use

one for parking; sold to man but wanted to keep easement so is recorded in deed but

doesn’t pass to subsequent buyer; rule goes with grantor’s intent; could vests interest to a

third party;

Easements (implied easements), 825-839.

o Goes against the SOF which requires writing

o 1. Prescriptive easement: like AP but for use not possession

o 2. Licenses that become irrevocable (easement by estoppel, equitable consideration)

o Holbrook v. Taylor: (landlocked prop used neighbor’s road but doing construction) and

created license by estoppel = couldn’t be revoked. Requirements for easement by

Property Outline 14

estoppel: 1) license (original permission), 2. Some form of investment, and 3. Belief (that

license wouldn’t be revoked, reasonable reliance)

o 3. Implied by Prior Use

o 4. Implied by Necessity

o Van Sandt v. Royster: (overloaded sewer line) used to be same lot, sues for injunction;

holds there was an apparent easement: was continuous, known/apparent, necessary; If the

land cannot be used w/out disproportionate effort and expense an easement may still be

implied in favor of the grantor/grantee on the basis of necessity alone; original purchaser

was aware of the sewer and had reasonable expectations concerning the prior use

CL rule for easement from existing prior use 1) severance of title 2) apparent,

existing, and continuing use of one parcel at the time of sev, 3) reasonable

necessity for the use at the time of sev

Implied reservation vs. implied grant: expands the scope of implied easement to

something that did not exist at time of sev

Termination of easement by merger of tenements: if dom and serv come into

same ownership ,easement is extinguished forever

o Othen v. Rosier: landlocked parcel of land, claims easement was too muddy to use; court

holds no easement, by necessity nor prescription; failed to show that the easement was

necessary rather than just convenient; Rule for easement by necessity: 1) unity of

ownership, 2) necessity now, 3) necessity then (when sev); policy: taking land from

someone else so only want to do it when there is absolute proof of all the elements

Easements (assignability, scope), 856-870.

o Miller v. Lutheran Conf and Camp: Frank transfers ¼ share of his right to boat fish (and

swim!) to brother; but didn’t have interest in swim but leased to the camp; brother’s heir

wants to commercialize; court held that it was an easement in gross = only transferred

commercially, the interest cannot be commercially used and licenses granted w/out the

common consent of the present owners, who must act as “one stock”; brother didn’t have

the right to grant license to camp; policy = don’t want to overburden the easement

o Brown v. Voss: tries to build house ($11K) on two lots w/privity of previous owner; but

there was only an easement app on the one parcel; construction caused damage to road,

tried to block road, CL rule is that can’t use easement for benefit of new piece of land;

have to prove damages for injunction and weren’t any and won’t be any = nominal,

looking at burden on the easement and changing kind of use that was anticipated

Easements (termination, scope, negative easements, conservation easements), 875-892.

o Termination: by agreement in writing, by terms of the easement, merger, AP or

prescription, abandonment, condemnation, release, estoppel

o Preseault v. US: RR tracks case for bike trail; 1. Was an easement and not fee simple b/c

min prop they need 2. Abandonment = must be acts by the owner of the dom tenement

conclusively and unequivocally manifesting either a present interest to relinquish or a

purpose inconsistent w/its future interest = yes 3. Against the intention of the original

grant to be used for trail; 4. Was a taking b/c was abandoned and turned into trail;

o Negative Easements: right of the dom owner to stop the serv owner from doing

something on the serv land; not favored; English exceptions: Light, air, support, stream;

US: CA has view and conservation easements e.g. won’t develop prop

Covenants (historical background and creation of real covenants and equitable servitudes), 892-

903; Moseley v. Bishop, TWEN (Course Materials).

o b/c of loopholes in easements; cov are k based; looking for a doc limiting rights

Property Outline 15

o court of equity = injunction; court of law = damages under real cov

o vertical privity: priv between one of the covenanting parties and a successor in interest;

strict = burden = transfer of same estate; benefit = allows transfer of lessor estate

o runs only w/the estate, not the land; does not run with an adverse possessor

o horizontal privity: priv between the original covenanting parties; RST says shouldn’t be

necessary but hasn’t influenced courts yet; must have some mutual or successive interest

in either the land benefitted or the land burdened

o Tulk v. Moxhay: English square, wants to build over garden; owner must have notice for

burden to run w/the land, either actual or constructive or inquiry (if can see it or figure it

out); intent = purchase price, lang of deed, etc.; focus on notice & fairness, equit serv is

easier to bind future owners; concern w/burdening party not original signer

o Mosley v. Bishop: tile drainage ditch, new neighbor and problems with ditch, new

neighbor won’t fix it; 3 requirements: 1. Intent 2. Touch and Concern 3. Privity of estate

o Equitable Servitude: cov respecting the use of land enforceable against successor

owners/possessors in equity (injunction) regardless of its enforceability at law

Requires: 1. Parties intend the promise to run 2. Subsequent purchaser has

actual/constructive notice of the cov, and 3. Touch and concern 4. (writing)

Runs to assignees, adverse possessors, burdens the land itself and not estate

o Traditional diff was real cov = damages and equit serv was injunction, but have more or

less merged; RST says shouldn’t matter but hasn’t influenced

Covenants, cont. (validity and enforcement, creation of equitable servitudes implied by law, or

reciprocal negative easements), 903-916.

o Samborn v. McLean: subdivision and wants to build gas station; developer had sold

chunks of lots at a time, was gas station subject to neg easement? Yes, but court calls it

reciprocal negative easement (implied servitude); general scheme doctrine (common

grantor/owner who intends a general scheme, benefit retained property, uniformity,

notice); uniformity of area should have given inquiry notice, MAJ use this but some take

SOF more seriously

o Neponsit: HOA wants bank to pay HOA fees on foreclosed props; Yes, must pay; touch

and concern must be to a substantial degree, the court should be able to state the problem

and find reasonable method of approach to it; RULE: a cov which runs with the land

must affect the legal relations (adv and burdens) of the parties to the cov, as owners of the

particular parcels of land and not merely as members of the comm in gen; used to be

logical connection rule;

Covenants, cont. (scope, termination), 927-940.

o Termination: all have to do w/changes inside the are restricted by cov

Merger: unity of ownership, benefit & burden by same person

Formal release, written and recorded

Acquiescence, arises when P has failed to enforce the serv against other breaches

and then seeks to enforce against the D

Abandonment: similar to acq. But makes serv unenforceable to entire parcel

rather than to P immediately involved

“doctrine of unclean hands”: court will refused to enjoin a violation of servitude

that the P previously violated

Laches: involves unreasonable delay by P to enforce serv against D causing

prejudice to D

Property Outline 16

Estoppel: D has relied upon P’s conduct making it unequitable to allow P to

enforce the servitude

o Western Land Co: when can we term established restrivtive cov? Reno, busy street, court

says the cov’s remain of substantial value to the homeowners in the subdivision, had not

so radically changed as to nullify its purpose of restricting comm. business;

equity/fairness; Rule= as long as orig purpose of the cov can be accomplished and sub

benefit will incur to the restricted area by enforcement, the cov will stand even if has

greater value if used for other purposes; must be so gen as to frustrate purpose of cov;

change must be so widespread that cov is essentially valueless; not easy to do; must have

everyone except for one to constitute abandonment

o Rick v. West: hospital case, neighbor refused to release cov = deal falls through; D relied

on residential restriction and has right to enforce the cov. Only upon evidence of a sub

change in the neighborhood that would render the defendant’s enforcement of the cov

unconscionable or oppressive. The restriction is not outmoded by a change in the

character of the neighborhood and continues to provide a real benefit to the defendant.

The court must continue to enforce the covenant.

o Common Interest Communities: obligation binds owners of individual lots or units to

contribute to support of common prop; Uniform Common Interest Ownership Act

Easement Real Covenant Equitable Servitude

Burden intent

notice

(writing)

Intent

Notice

Touch & Concern

Horizontal Privity

Strict Vertical Priv.

(writing)

Intent

Touch & concern

notice

Benefit Appurt

intent

in gross

intent or comm.

Intent

Touch & Concern

Relaxed Vert. Priv.

No notice

No horiz. priv.

Intent

Touch & concern

Zoning:

Historical background and Structure of authority underlying zoning, 967-987.

o Industrialization; housing explosion;

o 4 principles of modern city planning: 1. Sep of uses, 2. Protection of single family home,

3. Low rise developments, 4. Medium density population

o Village of Euclid: created classes of use, height, and area districts, intended to promote

police power of public health, safety, gen welfare; e.g. apartments can’t be built next to

single family homes; court holds that the ordinance is constitutional; zones were

excluding nuisance, value single fam homes the most; wants to control spread, value of

the property, safety concerns e.g. fire, children in streets, etc

A law will be upheld if the state shows that it was 1. Enacted to promote a

legitimate state interest, and 2. The law is rationally related to the legitimate state

interest

The nonconforming use and Controls on household composition 987-996; Problem 1, page 992;

1062-1071.

Property Outline 17

o PA Northwestern Distributors, Inc. v. Zoning Hearing Board: city trying to force out

adult bookstore by enacting zoning law after it moves in; yes, a pre-existing use

constitutes a vested property interest that cannot be taken away without just

compensation; slippery slope

o Village of Belle Terre v. Boraas: restricted to single fam dwellings; court upheld

ordinance b/c deals with economic and social legislation, and will not violate equal

protection if the law is reasonable and bears a rational relationship to a permissible state

objective. The police power includes zoning an area to promote family values, youth

values, and quiet seclusion; does not ban association because a family within its

guidelines may entertain whomever it likes.

o Heightened Scrutiny Test: Marshall in min thought should have applied: a law impacting

a fundamental interest or protected class will only be upheld if the state shows that it was

1. enacted to promote a compelling state justification and 2. the law is narrowly tailored

to address that justification [use only if fact pattern looks like Belle Terre]

o Zoning:

if you have an undeveloped lot, easier to take

if you have invested in the lot, taken steps to start building the business plan

substantial investment = equity = nonconforming use

will now vest your rights to be a nonconforming use

Eminent Domain: the power of the gvt to force transfers of property from owners to itself

Background, Public Use and Just Compensation, 1107-1127.

o Fifth Amendment constraints: "nor shall private property be taken for public use, without

just compensation" [could be taken with just compensation!]

1. public use and 2. with just compensation

limits both taking and regulating of property

o Fifth Amend doesnt grant the power, but only confirms it

o origins to ancient Rome

o Policy: Posner argues justification comes from efficiency; holdout problem:

public good needs particular land and people might hold out for their own selfish

interests and harm the public benefit e.g. roads and railways;

gvt does unsavory things so we don't have to do them individually; need ability

to put in pipes (small taking) and need to create sewage treatment plant

we allow ourselves to be at risk of ED because we get things back from gvt

o Need "fair market value" of your home; but that could vary widely; may not be enough

including renovations, labor, etc.; sentimental value

o Two views of "public use" 1. the term means advantage or benefit to the public (broad

view), and 2. the term means actual use or right to use of the condemned property by the

public (narrow view)

o lots of state leg have passed laws to narrow taking but many have loopholes

the Public Use Puzzle; What is it?

o Kelo v. City of New London: the Kelo house, Kato defended her; condemnation would

create jobs and revitalize the city, but was not all open to the gen public, private lessees

were not common carriers; however it was a public use; broadly interpreted to mean

“public purpose”; would there be harm?

o Western Seafood Co. v. CIty of Freeport: e.g. case; family business, waterfront piece of

land, nothing around it; rest of city is economically depressed; private developer wants to

Property Outline 18

put in a luxury pier; once he has the prop, will bring $$ to the community; only if the area

is "blighted" which is undefined; Western seafood lost; said it was blighted enough

Modern Interpretations, 1131-1143 1179-1195. (balancing only applies if one of the rules doesn't)

o Loretto v. Teleprompter Manhattan CATV Corp.: cable TV box case; RULE: if there is a

perm physical invasion on your prop, then its a taking; taking away two sticks

(exclude and use) of the bundle = taking

o Pennsylvania Coal Co. v. Mahon: Coal company owned the mineral rights of land but

mining would cause damage and danger, possible collapse of homes; argued it took away

value of the property; when a diminution reaches a certain point the government must

compensate for it. The Pennsylvania Coal Co. could not exercise the only valuable right it

possessed which was to mine the property for profit. Public may have use for the support,

and an interest in their safety, however, the subsurface rights to a property could not be

taken for the public without just compensation.

Dissent: should have the power to prohibit use of land that seriously threatens

public welfare without any just compensation.

o Lucas v. South Carolina Coastal Council: bought land on isle of the palms; Leg passed

act saying the land was protected; the Act’s complete extinguishment of his property’s

value entitled him to compensation regardless of whether the legislature had acted in

furtherance of legitimate police power objectives. No restrictions at the time of purchase;

two categories of regulatory action as compensable without case-specific inquiry

into the public interest advanced in support of the restraint: (1) when the property

owner has suffered a physical invasion of his property; and (2) when the

regulation denies all economically beneficial or productive use of land.

o Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection:

filling back in the beach but would become state owned land; SC upholds the law; the

state owns the seabed, there could be no taking