Professional Documents
Culture Documents
Table of Contents
Landlord-Tenant Law....................................................................................................................... 3
Types of Leases............................................................................................................................ 3
Creating a Tenancy...................................................................................................................... 3
Assignments and Subleases......................................................................................................... 3
Landlord Duties/Tenants Rights and Remedies............................................................................4
Termination of Tenancy................................................................................................................ 5
Fair Housing................................................................................................................................. 6
Civil Rights Act.......................................................................................................................... 7
Fair Housing Act of 1968........................................................................................................... 7
Real Estate Transactions................................................................................................................. 8
The Sales Contract....................................................................................................................... 8
Marketable Title........................................................................................................................... 9
Duty to Disclose........................................................................................................................... 9
Implied Warranty of Quality......................................................................................................... 9
Deeds......................................................................................................................................... 10
Real Estate Finance (Mortgages)................................................................................................ 10
Recording................................................................................................................................... 11
Title Insurance........................................................................................................................... 11
Nuisance Law................................................................................................................................ 12
Coase Theorem.......................................................................................................................... 13
Calabresi/Melamud........................................................................................................................ 13
Wills, Estates, Present & Future Interests...................................................................................... 14
Wills & Trusts.............................................................................................................................. 14
Freehold Estates & Life Estates.................................................................................................. 15
Defeasible Estates..................................................................................................................... 15
Future Interests.......................................................................................................................... 16
Rule Against Perpetuities........................................................................................................... 18
Common Law/Marital Property and Community Property..........................................................23
Marital Property (dominant system)....................................................................................... 23
Community Property............................................................................................................... 24
Equal Protection......................................................................................................................... 24
Eminent Domain, Takings, and Zoning.......................................................................................... 25
Eminent Domain........................................................................................................................ 25
Takings....................................................................................................................................... 25
1
Zoning........................................................................................................................................ 28
Personal Property.......................................................................................................................... 28
Finders....................................................................................................................................... 28
Gifts........................................................................................................................................... 29
Adverse Possession....................................................................................................................... 30
Servitudes..................................................................................................................................... 31
Easements................................................................................................................................. 31
Covenants.................................................................................................................................. 32
Common Interest Communities................................................................................................. 33
Intellectual Property...................................................................................................................... 34
Jurisprudence................................................................................................................................ 34
General Property Themes............................................................................................................. 35
Landlord-Tenant Law
Types of Leases
Term of Years: lease continues until designated period ends WITHOUT need for notice
Periodic Tenancy: lasts for initial fixed period (like 1 month) and continues for additional
equal periods until lease is terminated with notice
Tenancy at Will: either party can terminate the tenancy, no fixed duration, no notice
Tenancy at Sufferance: arises when T holdovers after termination of lease.
o L can evict or renew tenancy.
Creating a Tenancy
Assignment: transfer the enter interest in Ts part of estate (P E with L). Transfer can be
under different terms.
Sublease: transfer less than Ts remaining interest.
o Sublease doesnt impact L-T relationship. Creates L-T relationship with TS(sublessee)
o Ls powers over S despite no legal relp: create K w/ S, evict T (so evict S), L sues S
and other Ss as 3rd party beneficiary
Tests for assignment vs. sublease: has T retained any interest? What are parties
intentions?
Privity of Estate: Relp between L and person land was conveyed to.
o PE can only exist with ONE PARTY AT A TIME per K
o L can sue A if A breaches
o Affect use and enjoyment of land (touch and concern of land), actual/implied notice
assignee must know of covenant before acquiring interest, must clarify
whether L&T intended to extend to assignee
o Assignments: L-A. Subleases: L-T, T-S.
Privity of Contract: Relp between the parties responsible for K (can still exist without P E)
o Assignments
L-T have PK unless novation (T1 and L release T from master lease)
T-A have PK . T can sue A for indemnification if he pays because A broke lease.
3
L-A have PK. if A assumes conditions of master lease. Then, L can sue A as 3 rd
party beneficiary for recovery.
Creates liability for breach PK remains until end of lease unless L grants T
novation
Subleases
L-T and T-S.
If S assumes conditions of master lease in agreement with T then also L-S
Limits on transfer (Consent to assignment)
Unless a lease expressly limits assignment or sublease T has free
alienation. Most leases have restrictions.
Courts interpret restriction narrowly (if no assignment, sublease still
allowed)
Limits on Ls power to deny consent
Absolute prohibition on assignment (courts allow but disfavor)
Assignments granted at Ls sole discretion
Commercially objectively reasonable: requires commercially
reasonable reason to deny consent
o Kendall v. Pestana: P wants to buy interest from sublessee for
airplane hanger space but D unreasonably refuses to consent to
assignment without increase in rent and other terms. Court
required consent unless reasonable objection.
Policy: favors alienability of property and upholds K
implying good faith and fair dealing
o Commercially reasonable factors: financial strength, building
image, lessee might not succeed or is not financially
responsible, legality, need to alter premises, nature of
occupancy (office, factory), competition with Ls business
interests in the same building
o Not commercially reasonable: personal taste, convenience,
sensibility, higher rent, ethically opposed
Cannot violate anti-discrimination laws
Remedies: A breaches, L can sue L or A.
If L transfers future interest in land, tenancies go with the land/ new L
Termination of Tenancy
Fair Housing
(Californias Fair Housing law covers more than Federal FHA. (if exempt from federal,
probably still covered/must comply according to CAs law.)
Covered by Act?
Race
National Origin
Gender
Families/disabilities
Exemptions
Broad enforcement
options?
3601 (Fair
Housing)
Yes
Yes
Yes
Yes
Yes
Civil Rights Act 1866: prohibits private discrimination of race or ethnicity in rentals or sales
of real property
o Only bars intentional discrimination
o Jones v. Mayer: 1982: Civil Rights Act applied to private transactions
3.
4.
5.
6.
Marketable Title
Implied covenant of marketable title legal title only, not physical condition of land
o Seller really owns property
o Sellers title is absolute and not shared with others
o Property is not subject to legal liabilities
Encumberances include: easement, covenant, lien, mortgage obligations, future
interests/leaseholds/current shared interests
o Permissible encumberances: insignificant blemish, public land use regulations (or
zoning ordinances), building code defects, visible encumbrances
Also cannot have restrictions exposing buyer to litigation, lower property value, property
uninsurable, violation of zoning ordinance or covenants
o Lohmeyer v. Bower: P bought title from D. P discovered zoning violations. Ct held
violations unmarketable title.
Subject to encumbrances on record buyer waives protection that sellers title is
absolute and not shared with others. Also gives up protection for existing restrictions like
easements. Still protected from unrecorded/unknown encumbrances.
Remedies: buyer must notify seller of title defect and allow time to fix
o Buyer can sue seller and be excused from perfoming K or seek damages (like
abatement of purchase price, recovery of down payment)
Duty to Disclose
Deeds
10
Recording
Policy:
o Protects bona fide purchasers from prior unrecorded conveyances and from losing
valuable consideration
General rule: First in time: if no one records, first in time wins
o Exception: Notice and race-notice statute.
o Race statute (very uncommon): first to record prevails, regardless of notice
o Notice statute: 1) subsequent BFP who provides 2) valuable consideration and 3)
has no notice of prior interest
o Race-notice: 1) subsequent BFP who provides 2) valuable consideration 3) has no
notice of prior interest and 4) records first
Types of notice:
o Actual notice: directly told
o Inquiry: reasonable buyer should have asked about property rights
o Constructive notice: constructively notified if prior buyer recorded
Shelter Rule: if C buys from B, C is protected whether he has notice of As record if B had
no notice of As title when B purchased from O. B was a BFP and thus had full title
ownership rights to convey to C.
o Policy: prevents fraud, encourages productive use/land transfer, penalizes person
who was in best position to avoid loss (seller is least cost avoider).
11
But, raises transaction costs (buyer has burden of doing title search)
Title Insurance
Title insurance insures against defects in the record (status of legal title)
o Covers title held by another
o Defect/lien/encumbrance
o Unmarketable title
o Insured owner has no right of access to land
o Excludes:
Defects that can be found through inspection/survey of land
Problems created by insured
Defects not in public records
Ordinance/regulation on land
Rogge v. Chelsea Title & Guaranty: Rogge purchased land with title insurance from
Chelsea. Chelseas title search uncovers acre shortage in purchase description. Held:
insurer has duty to disclose information affecting buyers decision, whether it falls under
title search. (discourages malpractice).
Possible solutions
o System of title registration run by state eliminates title insurance monopolies and
reduces costs, runs risk of ineffective state-run system
o Remove seller & buyer broker buyer broker is paid on commission of sale so
incentivized to encourage buyer to buy fiduciary duty conflict
Nuisance Law
Externalities
o Demsetz: reduce negative externalities by assigning private property rights
Private property better allocates resources and reduces costs of negotiation
when internalizing externalities
Weaknesses: ignores benefits of communal property, role of culture/politics
Ex) ocean fisheries
o Hardin: reduce negative externalities through social regulation
Ex) carpooling
o Merge of Demsetz and Hardin: pollution credits
Definition: interference with persons private use and quiet enjoyment of land
Public vs. private nuisance
o Public = activity prohibited by law affects public
Aggregation of private nuisance
o Private = activity affecting one person or small set of individuals
First in time?
Relative economic harm/benefit
Cost to remedy
Negligence
Health and safety
Estancias Dallas Corp. v. Schultz: Schultzs enjoyment of residence interrupted by AC unit
of Estancias apartment building. Held: balance of equities test damage to Schultzes
outweighed damage to public from nuisance.
Tests:
o Balance of equities: gravity of harm > social utility? (private harm > public
benefit?)
12
Gravity of harm
Extent of harm
Character of harm (ex: legitimate or malicious)
Social value of s use
Suitability of s location
Burden on to avoid harm (first in time coming to nuisance?)
Utility of conduct
Social value of s use/conduct
s cost of avoidance/prevention
Suitability of location
Remedies
o Harm > utility injunction on s activity
o Utility > harm damages or no recovery
o Harm is substantial and unreasonable receives damages
o Temporary damages = damages for past harm
o Permanent damages = damages for past and future harm.
o Boomer v. Atlantic Cement Co.: creates nuisance by emitting dust and noise from
cement plant. Held: injunction conditioned on paying permanent damages
essentially permanently purchases right to nuisance from s.
o Spur Industries v. Del E. Webb Development Co.: Webb began developing residential
areas near Spurs ranch ranch created nuisance of smell and flies. Held: Spur
endangered public health but was first in time. Webb came to the nuisance. Use
liability rule Webb pays Spur to move.
Coase Theorem
First Coase Theorem: assignment of property rights does not affect the amount of
interference most efficient user will get the rights
o Conditions for theorem to apply (aka absence of transaction costs)
Absence of bilateral monopoly (no two parties are locked into dealing with
another)
Absence of collective action and free rider problems (parties cannot hold out
or free ride)
Adequate wealth (parties can buy the rights they need)
Knowledge of partys best interest (what partys best option is)
Second Coase Theorem
o If transaction costs are high assign property interests to party that would buy
them.
o Court can set level of nuisance where marginal cost of nuisance generator =
marginal benefit of abatement for victim
o Basically, property right goes to most socially valuable user
First Coase Theorem example: Cap and Trade
o Many parties, no opportunity to free ride, wealthy competitors, knowledge of
pollution costs/permit prices
Calabresi/Melamud
Witnessed by 2 parties
Exception: holographic will
Valid if in testators own handwriting and signed by him and testator is
of sound mind
If no valid will intestate
Order of distribution: spouse issue (children) parents & parents
descendants (siblings) grandparents & descendants
Divide shares based on representation if one person of a generation died
Trust: fiduciary relationship where trustee manages the property in the trust on behalf of
the beneficiaries
o Settlor: grantor/benefactor
o Trustee: holds legal title and can invest/dispose of trust assets.
Can also be one of the beneficiaries
o Beneficiaries
o Creation of trust
Testamentary trust must comply with statute of wills. Allows for increased
flexibility (liquidate trust assets)
Inter vivos trust interest in real property, must meet SoF. Avoids delay and
cost of will administration.
15
Defeasible Estates
16
Future Interests
Grantors Interests
o Reversion: grantor retains future interest when conveying an estate less than FSA
o Possibility of reverter: O retains future interest when creating fee simple
determinable
o Right of entry: O retains future interest in taking back estate when creating fee
simple subj to condition subsequent
Grantee/Transferees Interests
o Vested Remainders (immediately possessory at natural termination of prior Life
Estate OR term of years does not cut short prior interest)
Indefeasibly vested remainder: remainder in a PRESENTLY IDENTIFIABLE
person. NOT subject to any limitations, conditions, or RAP.
Ex) To A for life, then to B.
Vested remainder subject to divestment: (gets it UNLESS condition
violated) remainder subject to condition subsequent (interest can be taken
away)
Ex) B: To A for life, then to B and his heirs, but if B does not reach age
21, then to C and her heirs.
Vested remainder subject to open: remainder in one or more members of
a class that may increase ID certain but share of remainder uncertain
Note: AT LEAST ONE member of class must exist
SUBJECT TO RAP
Ex) Children of C: To B for life, then to the children of C and their
heirs
Contingent remainder: (satisfy condition, THEN gets it)
Subject to a condition precedent to become possessory
Created in unascertainable person (condition not yet fulfilled)
SUBJECT TO RAP
Ex) B: To A for life, and then if B reaches age 21, to B and his heirs
Ex) B: To A for life, then to B if B returns to France
Alternate contingent remainders: if one partys interest vests, then
the complementary contingent remainder fails.
Contingent remainders can become vested.
o Executory Interest: future interest that divests interest away from another
estate/interest
SUBJECT TO RAP
Can divest a vested future interest OR fee simple determinable
Shifting executory interest: divests another transferee
Ex) C divests from B: to A for life, then to B, but if C returns from
France, then to C.
Springing executory interest: divests transferor
Ex) B divests from reversion: to A for life, then to B if B gives A a
proper funeral.
17
Defeasible Fees
Freeholds
Present Estates
Future Interests
Held by
Transferor
n/a
n/a
Fee Simple
Determinable
Possibility of
Reverter
n/a
Right of Entry
n/a
n/a
Executory Interest
Indefeasibly Vested
Remainder
Life Estate
Leaseholds
Vested Remainder
Subject to Open
Term of Years
Reversion
Vested Remainder
Subject to
Divestment
Executory
Interest
Contingent
Purpose: prevent living people from having too much control over property after they die
avoid aristocracy
Rule: A valid interest must vest, if at all, within 21 years of a life in being. must be
certain to vest or fail
o 21 years plus any gestation period if can satisfy by pregnancy, RAP is
not violated
o Entire class of persons must vest or fail within 21 years must CLOSE and
gift vests to EVERY member in class
Process:
o 1) Does RAP apply to the interest?
Includes:
Contingent remainders
Vested subject to open (unless class closes)
Executory interests
Option to purchase/right of first refusal
o 2) When does perpetuities period begin?
Deeds: effective upon delivery
Wills: effective at death
Trust: effective at death
Inter vivos: effective when irrevocable
18
19
Generation skipping tax: forces each generation to pay tax encourages each
gen to increase wealthConcurrent Interests
Numerous clausus: categories established and virtually finite.
o
Characteristic
Tenancy in Common
Definition
Conditions
Joint Tenancy
Tenancy in the
Entirety
Each spouse owns the
whole parcel
Parties must be
married
4 elements of unity
Equal shares
required?
Survivorship?
Restrictions on
transfer?
No
Avoid probate
when tenant dies?
Avoid taxes when
T1 dies?
How to end?
No
Specific intent,
vesting, etc.
unity of interest:
1) acquire title
simultaneously;
2) in same deed/will;
3) equal parts;
4) equal right to
possess whole
Yes, though this is
eroding
Yes
-No, but transfer
converts JT to tenancy
in common
-JT inalienable (right
of survivorship T1s
interest ends upon
death cannot
devise)
Swartzbaugh: lease
doesnt sever JT
Mortgage
extinguishes at death
Yes
No
Yes
Yes
Divorce
Death
Mutual agreement
>2 parties
permitted?
Widespread?
Yes
Mutual agreement,
Party transfers
interest
Petition for partition
Yes
Universal
Universal
About 20 states
(never in community
property states)
No
No
Yes
Yes
Yes
Sawada: can create
shield to creditors
Yes
20
Presumptions:
Account funds belong to each party PROPORTIONATE TO
CONTRIBUTION unless there is clear contrary evidence of intent
Presumes RIGHT OF SURIVORSHIP unless clear contrary evidence of
intent
o Creditors:
Can seize interest and sever JT during debtor tenants life.
Interest disappears after debtor tenants life.
Tenancy in the Entirety: only exists between husband and wife with right of
survivorship.
o Requires 4 unities + marriage
o Can create creditor shield: creditors of one spouse cannot access this interest
because neither husband nor wife can transfer interest
o Termination: mutual agreement, divorce, death
o Sawada v. Endo: Mr. Endo gets in car accident but transfers ownership of property to
kids before suit is filed. Court: creditors cannot reach property interest regardless of
transfer because of tenancy by the entirety.
Rights and Duties of Cotenants
ACCOUNTING RULES
1) If cotenants are in possession, they share operating costs pro rata.
2) If 1 cotenant in possession, entitled to contribution IF expenses >
implied income (fair rental value).
3) if 1 cotenant managing, share net profits with cotenants.
4) if 1 cotenant extracting resources, share net profits.
5) if 1 cotenant makes improvements, that cotenant receives any
resulting gain or bears any resulting loss.
6) Necessary repairs treated like operating costs; optional repairs
treated like improvements.
o Right to possession: each cotenant has right to use parcel
Liability for Rent: NOT liable to other cotenants for rent
EXCEPTION: Ouster cotenant in possession refuses request of
another cotenant to share possession of land can get fair rental
value proportionate to his share
o Right to rent, income, profit
3rd parties: each cotenant gets pro rata share of rent from 3 rd parties
Minerals/natural resources: each cotenant entitled to pro rata income from
NONRENEWABLE resources of land
o Liability for Mortgage/Tax Payments
Each cotenant must pay proportionate share of payments that could create a
lien on property if left unpaid
Tenant has right to sue other cotenants if he pays more than his share
EXCEPTION: cotenant in sole possession: cannot receive
contribution UNLESS they exceed the fair rental value of property for
that period
o Liability for Improvements and Repair Costs
Cotenant who pays for these is NOT entitled to contribution UNLESS they
have a prior agreement
22
o
o
23
Rule Governing
Tenancy by Entireties
Logic
In theory, husband's
creditors should be
able to reach all but
the wife's right of
survivorship
Conveyance to
children fraudulent;
Sawadas can recover
almost the whole value
of the house
(now abolished)
Interest reachable
Effect in Sawado
II
Creditors of either
spouse can reach the
present interest and
that spouse's right of
survivorship
Conveyance to
children fraudulent;
Sawadas can recover
at least half-interest in
the house
III
Conveyance arguably
ok; Sawadas barred
from recovering while
Mrs. Endo is alive
IV
Protects the
inviolability of the
tenancy during the
lifetime of the innocent
spouse
Conveyance to
children probably
fraudulent; Sawadas
should be able to
recover, but only to
the value of the right
of survivorship (not
much)
Death:
o Surviving spouse takes EITHER
What they would normally get from decedents will
OR forced elective share of of property
Community Property
Everything spouses own goes into common pot for each spouse
o General Rule: assume community property unless proven otherwise
o INCLUDES increased value to separate property due to community efforts (or
efforts by a spouse during marriage), not reasonable rates of return from
investment
o EXCEPTION: things acquired BEFORE marriage and gifts and inheritances are
separate property
o Partially paid for assets: 3 approaches
**Pro rata (CA & WA)**: % of property paid before marriage percentage
as separate
Inception of right (TX): separate or community determined when legal
right acquired
Time of vesting: determined when title passes
o Must have mutual consent to convey anything (small gifts okay)
o Degree acquired during marriage depends on jurisdiction
Divorce: divided equitable (equally in CA) between spouses, separate property retained
by original owners
Death: Spouse can transfer half of community property and all of separate property
NO tenancy by the entirety
MIGRATION:
o property initially characterized DOES NOT CHANGE unless both spouses consent
o MP CP: separate remains separate, subsequently acquired becomes community
o CP MP: CP remains CP but at death forced elective share get statutory share
+
Equal Protection
Common Law Marriage: live together with marriage roles for x years can reap
marriage benefits
25
Varnum v. Brien:
o Levels of scrutiny:
Standard (rational basis for legitimate scrutiny): logical demonstration +
underlying goal
Ex) age classification for driving, income classification for taxes
Immediate scrutiny: important government interest and substantially related
Strict scrutiny: presumptively invalid and compelling state interest and
necessary to achieve the interest
Ex) race classifications (affirmative action)
5th amendment of US Const.: Nor shall private property be taken for public use without
just compensation.
o Eminent Domain: liability rule govt takes without consent & provides
compensation
Purpose: protect against redistribution of wealth by requiring public purpose
and compensation
Avoids holdouts by individual owners and delay of development
o Test: is there a public use?
Ultimate private ownership =/= taking improper under public use
requirement
Berman v. Parker: Taking of department store to develop for another
businessman okay
Redistribution of land wealth to promote equality = public purpose
Hawaii Housing Auth. v. Midkiff: Court held program to decrease land
oligarchy (buy land from landowners and lease it to homeowners to
build their houses) serves public purpose of redistributing land wealth
to promote equality
Urban renewal: land given directly to private company for economic devt =
public purpose
Kelo v. City of New London: Court okayed goal of economic
development when s property condemned to revitalize city.
New Means Test (Tom Merrills Economics of Public Use) public use is too
vague
o Public use if 1) necessary to overcome transaction costs 2) low CS lost
3) not rent-seekers
o 1) how important is power of eminent domain? (how important are liability
rules to this project?)
Is government unable to overcome transaction costs through property rules?
(holdouts?)
o 2) Are those losing their property holding a lot of consumer surplus?
CS: when condemning property, pay owners market value but what about
the additional value residents hold above market price (neighborhood value,
sentimental value)
o 3) Are those receiving rent-seekers?
Rent-seekers: private interests that capture government/public entities for
own services some public benefit but a lot more private benefit
26
Poletown Neighborhood Council v. City of Detroit: GM tells Detroit it will move plant
unless City finds and sells them big plot of land cheaply (condemn Poletown).
Merrills test NOT public use though high transaction costs through bargaining,
too much CS (ethnic community) and GM is rent-seeker.
Compensation
o Fair market value: valued at highest and best use it can be adapted for (including
future use)
o No compensation necessary for: goodwill, owners sentiment, economic value of
rebuilding
o Partial takings:
If reduces value of remaining parcel pay severance damages (reduction in
value)
If increases value can offset severance damages, but must still pay
compensatory damages
o
Takings
Exaction: Govt takes from private owner in exchange for a regulatory accommodation
(favor)
o Nollan v. California Coastal Commission: wanted to improve house but commission
wouldnt approve project unless granted easement across beachfront property so
public could better access beach. Held: taking because no nexus goal was to get
people to see the beach from road.
Test for Taking
o 1) Is there an exaction?
If yes, nexus between exaction and accommodation? (favor must be
related to purpose of regulation)
If yes, is there a rough proportionality between exaction and
accommodation?
o Yes no taking
o No taking
o 2) If no, is there public use?
If no, taking prohibited.
o 3) If yes, permanent physical occupation?
Yes taking, compensation required
o 4) If no common law nuisance/negative externality being eliminated?
must be common law nuisance affecting neighbors
Yes no taking even if property value drastically reduced
No total wipeout of value that was not because of a limit that was
part of original title? Land deprived of all economically productive use
Yes taking
o 5) If no, weigh Penn Central factors:
Average reciprocity of advantage if burdens imposed on owners by
regulation offset by benefits conferred on owners not a taking
Diminution in value to claimant closer to 100%, probably a taking
Extent to which regulation interferes with reasonable investor
expectation
Conceptual severance: Look at taken portion as fraction of the whole (significant
fraction or not?)
27
Pennsylvania Coal v. Mahon: Coal co. transfers property to Mahon, reserving rights
to minerals. Government passes Kohler Act, not allowing subsidence through mining
(takes away support estate access from Penn Coal) Held: regulatory taking
deprived Penn of 100% of support estate value.
o Keystone Coal: same facts but technology had improved. Held: no taking because
the amount required to avoid subsidence was comparatively less with better mining
technology.
Remedy = compensatory damages
Lucas v. South Carolina Coastal Council: SC enacted Act after Lucas purchased 2 lots to
build houses that barred permanent structures on beachfront lot. Held: taking because
too far limit was not part of original title.
Palozzolo v. Rhode Island: Palazzolo owned coastal wetlands land, got sole ownership after
creation of Council to protect wetlands. Held: not a taking because not total wipeout of
value. Also had reciprocity of advantage (enjoyed public benefit of protected wetland) and
investor expectations (full notice of regulation)
o
28
29
Zoning
Village of Euclid v. Amber Realty Co.: intended industrial use for land but Euclid passed
zoning laws dividing parcel into 3 zones, decreasing value of land. Held: not a taking
o Issues: Substantive due process (inhibits freedom of K vs. protecting public safety);
equal protection (creating class zoning? Or is there rational zoning criteria?); taking
(require compensation? usually no taking because doesnt satisfy three factors
unfair)
Purpose: separation of uses; groups interests; regulates future development
Zoning process: 1) State passes enabling statute 2) Comprehensive Plan adopted by
zoning commission 3) Enact zoning ordinance (no total wipeouts) 4) Appoint
administrative board to approve variance/exceptions
Non-conforming use:
o Existing uses are grandfathered: new zoning laws/systems DO NOT AFFECT
existing property
o Most ordinances bar expansion of non-conforming use
o Cannot be transformed into different non-conforming use
o Abandonment terminates non-conforming use
o Destruction of structure terminates non-conforming use
o Nuisance then cannot continue using
o Eminent domain
o Problem with Artificial Monopoly: owner of nonconforming has monopoly
because ordinance prevents subsequent competitor market entry. Solution:
amortization: owner of use recovers his investment and then right to continue use
ends. Valid if time period is reasonable.
o Northwestern Distributors v. Zoning Hearing Board: zoning board enacts ordinance
prohibiting adult stores after already started operating adult bookstore. Allowed
90-day amortization period. Held: Rezoning existing nonconforming u se out of
existence = per se taking. No phaseouts allowed.
Variances permitted if: 1) show hardship (conforming to zoning would prevent
reasonable return on investment of property and 2) public interest (variance wouldnt
fundamentally change area)
Aesthetic zoning: majority = valid government purpose
o Stoyanoff v. Berkeley: uniform theme of houses in neighborhood but one house
desired to be built looks grotesque, modern deviates from theme. Held: conserves
property values and there was notice of Board passing this.
Personal Property
Finders
Recover Possession
Recover Damages
Real Property
Ejectment
Trespass
Personal Property
Replevin
Trover
Establish ownership
Quiet Title
Driving Principles: RELATIVE OWNERSHIP & POLICY AGAINST SELF-HELP
o Goals of Finders Law:
Get property to true owner
Provide clarity of new ownership
Discourage unlawful behavior
30
Rules:
o Finder = first person to take possession of lost/unclaimed property
Requirements: intent to control AND act of control
CA LAW: value > x turn into police and get it back if no claimant
o Finder has superior title to ALL but true owner
Mislaid: consciously lose possession (put it down and forget)
Lost: unconsciously lost possession
o Abandoned: deliberately/intentionally giving up property: finder has ABSOLUTE
TITLE
o Finder in a public place becomes owner (place = shop: Bridges v.
Hawkewworth)
o On private land, employee finder vs. owner belongs to owner (South
Staffordshire v. Sharman)
o On private land, finder is a trespasser to owner.
o Tenant finder lessor owns it. (Elwes v. Brigg: tenant w/ 99 years lease finds
embedded boat)
o Possessor of land possesses EVERYTHING on land.
Hannah v. Peel: Peel was conveyed house subsequently requisitioned for quartering of
soldiers. Soldier was stationed there and found brooch on window frame, turned it in. Peel
sold it. P wanted brooch or equivalent damages. Held: For soldier b/c Peel was not
physically in possession no right to brooch, didnt know about it.
Armory v. Delamirie: chimney sweeper finds jewel and brings to goldsmith for
identification. Held: damages to sweeper value of best jewels fitting socket (efficient
deterrence)
Popov v. Hayashi: Popov catches ball but does not maintain control of it. Hayashi picks it
up in midst of mob chaos. Held: neither has superior title equal and undivided interest
in ball.
Gifts
Adverse Possession
Goals: 1) encourage productive use (reward earners) 2) clarity of title 3) encourage active
ownership (punishes sleepers)
Elements required:
o 1) open and notorious 2) actual entry 3) exclusive and continuous
occupancy 4) adverse and hostile claim of right 5) for the statutory period
Hostility: AP has NO legal interest legally incompatible with using land
Bars tenants, cotenants, licensees; cannot AP government
land, cannot AP against future interests until they become
possessory
Open and Notorious: visible and obvious enough for reasonable owner to receive notice
of AP
Actual entry:
o Majority: enter land and use as ordinary owner (if vacation homes area, use as
vacation home sufficient)
o Minority (CA): must cultivate, improve, or substantially enclose property
EXCEPTION: color of title (see below)
Exclusive and continuous occupancy: true owner or general public cannot be sharing
with AP. True owner must use as ordinary owner would. If multiple APs concurrently
possessing, acquire title as tenants in common
Adverse and hostile: true owner cannot have consented to occupancy (ex)
maintains gate for AP)
o Objective test (Majority): Did true owner consent to possession? If no, AP valid.
o Good faith test (Minority): AP has good faith mistake belief he owns property.
Statute of Limitations:
o Change in ownership does NOT reset timer during owners line of succession
EXCEPTION: SoL does NOT apply to State
o Tacking: if AP1 conveys title to AP2, combine their possessory time to satisfy SoL
Requires privity between APs
Relativity of title: AP2 drives out AP1 AP1 can eject AP2 gap of
recovering possession still attaches to SoL.
Howard v. Kunto: Summer homes Kunto takes possession from Millers who
occupied for a long time deeds incorrectly reference lots next to them.
Kunto moves in, sues to eject Kunto. Held: Summer possession = typical
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owner of area & tacking allowed (privity of estate color of title). Court ruled
for Kunto.
o Discovery rule: SoL begins running when reasonable owner discovers/should have
discovered identity of possessor of property
OKeefe v. Snyder: paintings disappear from gallery but she doesnt report
theft for 26 years. Held: SoL does not run until reasonable owner discovers
through due diligence.
o Disability: minor, insane, in jail
After SoL runs, add 10 years after disability ends OR get 21 year
SoL, whichever is longer.
Disability MUST BE IN EXISTENCE when SoL CLOCK BEGINS
Van Valkenburg v. Lutz: cleared path on vacant lot to get to his, built house for brother,
put trash and little garden all on vacant lot. VV buys lot and kicks out Lutz. Lutz gets
easement by prescription and tries to AP. Held: no AP because did not actively possess (did
not improve land), knew land wasnt his, de minimis use does not satisfy open and
notorious poor reasoning
Color of Title: (belief AP is true owner through written document) if you have color of
title, you have constructive possession of ENTIRE parcel even if you only possess part of it
o If NO color title and improve part of land, owner might only lose the improved
part
o If have color of title over Xs and Ys lots, deed conveyed by X, possessing Xs lot
does not get X and Y lots because Y had no reason to know of AP.
Real property:
o O sells to A, then O sells to B Fraud BFP without notice BFP gets good title
o O sells to A, stranger sells to B Forgery BFP cannot get good title. Must go
through AP.
Personal property:
o Seller acquires through fraud and sells to BFP BFP gets title immediately.
o Seller acquires through theft and sells to BFP BFP must go through AP.
Liability rule: AP values his improvements on land more than true owner uses land AP
compensates true owner for acquired property
Property rule: provides windfalls to certain parties AP awards windfalls
Servitudes
Easements
Covenants
Real covenant: promise concerning the use of land that benefits the original parties to the
promise and their successors
3rd Rest Creation of Servitudes
o Intent to create servitude running with the land
o Compliance with SoF
o Notice to the party that one seeks to bind
o Cant be illegal, unconstitutional, or violate public policy
Violating FHA: a) disparate treatment? (covenants purpose is to exclude
particular people) b) disparate impact? (excludes people protected under
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Condominiums: each owner owns unit in fee simple, undivided share in common areas as
tenant in common
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Cooperatives: each resident owns shares of residential corporation (which owns all units
and building and land)
Rules governing servitudes:
o CC&Rs in constitution means notice greater deference
Florida 1: assumption of validity
Void if 1) unconstitutional 2) illegal 3) against public policy
Florida 2: reasonableness burden exceeds benefit (aggregate
utility maximization)
Business Judgment Rule: all but unjust most deferential
o Regulations/statutes after living there
No presumption of validity
General reasonableness required
Impact on individual and process because individual had no notice
o Restrictions on sale
Pre-approval only upheld if rejections are reasonable
Provisions that give association right of first upheld
Nahrstedt v. Lakeside Village Condo Association: condo has restriction against pets.
Nahrstedt has 3 cats. Court: goes with Florida 1 because she had notice and it was in
terms of initial deed.
40 West 67th Street Corp. v. Pullman: Crazy shareholder of cooperative causes trouble.
Coop board voted to terminate his lease. Court upheld termination by referring to business
judgment standard.
Valid or invalid servitudes
o Valid: aesthetic bans, business restrictions, bans on religious services (if all
encompassing)
o Invalid: assembly bans, flag bans, green energy/public policy bans
Intellectual Property
Intellectual property arose from the notion of intangible property created for the purpose
of pursuing commerce
o Keeble v. Hickeringill: had decoy pond to capture ducks. shot guns to scare
away ducks. Held: interfering with business in a non-competitor way (better decoy
pond would have been okay)
Trademark: patent identifiable characteristics to create logo or trademark (no knockoffs)
o Test: show consumers contested logo/infringement and see if it makes them think
of a specific brand or general product. If specific, then infringes upon trademark.
Copyright: statutory protection. Protects an idea. Lasts for 70 years.
o Allowed to use for quotes in reviews, teaching, parodies
Patent: 17-22 years. Cannot patent discoveries. Can patent
inventions/processes/machines
o Goal: try not to create windfalls for first movers for a long period that disincentivizes
other developers.
o Also tries not to benefit first movers that invest little cost/resources but gain a lot
Trade Secrets: enforcing NDAs
Personality: property rights of individual identity
o Enables individuals to exploit their own identities, prevents public confusion
Cheney Brothers v. Doris Silk Corp.: Cheney made patterns and Doris Silk copied one that
sold well. Held: encourage competition so allowed. No copyright/patent.
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Jurisprudence
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