Property Course Outline 09/04/2010 10:29:00

← I. The Acquisition of Personal Property (Thou shall not steal)

• 1. The Rule of Capture: Animals Ferae Naturae
o Gillet v. Mason – Tree limb of bees swarming
 Work into hiving bees establishes them as property
 Seeing and carving name in tree does not w/o
(rationale soli)
o Keeble v. Hickeringill – Decoy Pond < Tranquil
 Work into creating habitat for ducks creates some form
of ownership of the wild animals (animum revertendi)
o Constructive Possession – possession “constructed” by law
because it does not exist in fact; it is a legal fiction.
o Pierson v. Post – Upper middle class twit of the year
 Maiming, Mortally Wounding or Killing can establish
ownership over a wild animal by removing its liberty
o Blackstone Commentaries
 “If at any time they regain their natural liberty his
property instantly ceases unless they have animus
revertendi …”
o Buster v. Newkirk – Deer shot, pursued, but killed by Buster
 Giving up pursuit on wounded animal loses claim, while
mortal wound and work establishes ownership
o Bible Verses from the New American Bible
 “Let them have dominion over the fish of the sea, the
birds of the air, and the cattle, and over all the wild
animals and all the creatures that crawl on the ground.”
o Doctrine of Ratione Soli
 Property right through soil over all that is on property
whether its wild animals or natural resources
o Doctrine of Animus Revertendi: Habit of Return
 Domestication standard of owning wild animals without
physical restriction of animal’s liberty
 o Reese v. Hughes – Fox on the loose, gets killed
 Fox didn’t return on its own, therefore owner couldn’t
maintain ownership through animus revertendi
o U.S. Constitution
 Amendment V: No person shall … be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use, without
just compensation
 Amendment XIV: … nor shall any state deprive any
person of life, liberty or property, without due process
of law.
o Taber v. Jenny – New Bedford whalers distribute
 Killing, anchoring, and marking whale with a waif as is
custom in seafaring establishes it as property that can
be reclaimed in a reasonable period of time
 A salvor loses right to a salvage fee if they try to
misappropriate property
o Swift v. Gifford – Arctic whalers establish custom
 Iron Holds the Whale, maintains property
o Herman Melville – amateur whaler, novelist extraordinaire
 Moby Dick Excerpt – Fast Fish and Loose Fish
 Loose fish =fair game for anyone who can catch it
 Fast fish = belongs to the person fast to it.
o “Tuna boats battle – one snags a whopper”
 Fast fish becomes loose fish… free fish to capture
o Tuna Problem and Deer Problem
• 2. The Rule of Capture: Inanimate Objects
o Haslem v. Lockwood – Manure in the Road
 Work to give value to abandoned property can make it
yours.
o John Locke – Enlightenment philosopher
 The Second Treatise of Government excerpt
 Establishes the essence of work put into things
establishes property and accordingly, their value
o Popov v. Hayashi – Barry Bonds Ball debacle
 Pre-possessory interest established for work Popov put
into the ball, but was not quite able to complete due to
illegal activity. Equitable Division is used to split the ball
due to the clouded title of ownership.
 Court uses Gray rule to establish that possessor must
have been able to maintain control against incidental
contact, but not necessarily illegal contact.
← II. Adverse Possession
• 1. Of Land
o Rule of Natural Resources: Derived from Law of Capture
 Oil and Gas
 1. One may pump oil or gas from one’s land even
if it drains from another’s land
 2. Natural gas that is reinjected into the land,
either for storage or secondary recovery
purposes, belongs to the original owner. Hence an
action in trespass will not lie against such an
owner recovering the gas that may underlie
another’s land.
 3. Owner owns the land down to the center of the
earth
 Water
 1. Old English law said water could be used freely
without regard to the other land owners
 2. American rule says wasteful use of water is
unreasonable if it harms the neighbors
 3. Eastern states – Riparian Rights – each person
who owns land on the water has a right to use it
subject to the riparian rights of others
 4. Western states – first appropriation – the first
to put the water to productive use has rights
superior to later appropriators.
o Naab v. Nolan – Garage built with adverse possession.
 Adverse Possession gives Naabs
 1. Hold tract adversely or hostilely
 2. Possession is actual (as opposed to
constructive)
 3. Possession is open and notorious
 4. Possession has been exclusive
 5. Possession has been continuous
 6. Claim of Title or Color of Title
 (Optional) Paying taxes in Western states.
o Theories of Possession:
 Maine Doctrine – bad faith needed (traditional)
 Jersey Doctrine – conduct matters (objective)
 Good Faith – good faith matters
o Claim of Title and Color of Title Notes
 Claim of Title -- Intent to claim land as own whether by
mistake or not. Present in ever AP case.
 Color of Title -- Defective title of land description.
Allows constructive possession of entire parcel
described if possessor actually possesses any part of it.
o John Stuart Mill – Utilitarian sage of the day
 Principles of Political Economy
 Philosophy that land must be used most efficiently
and justice should be offered to people who make
best use of land
 Earning theory: want to reward occupants of land who
use it productively
 Sleeping theory: penalizes land owners who sleep on
their rights.
o Oliver Wendell Holmes, Jr.
 The Mind and Faith of Justice Holmes
 Statute of Limitations – A man’s rooted hold on
property cannot be displaced without cutting at
man’s life
o Patrick v. Goolsby – Constructive Possession through color of
title
  One cannot claim constructive possession over
unoccupied land against a man with a superior title with
some actual possession on the land.
 Adverse Possession Questions --HYPOS
o St. Thomas Aquinas
 Summa Theologica – Faith is higher than reason but
reason is higher than anything else… encyclopedia of all
that is know.
 Whether it is natural for man to possess external things
 Man has natural dominion over external things
 “let him have dominion over the fishes of the sea”
o The Commentaries on the Laws of England
 Blackstone tomes that have been used extensively in
English common Law for Property
 The Founders’ Constitution, Blackstone Commentaries
 Property is the “third absolute right” – Gov’t cannot
take it away unless for wrongdoing.
o Chaplin v. Sanders – trailer park with four owners
 Hostility can remain even after adverse possessor has
learned of true owners interested
 True owner’s knowledge of encroachment meets
notorious criteria
 Uses Jersey Doctrine (conduct matters), where the
state of mind does not matter.
o State of Mind Note
 Knowledge that one’s title may be inferior may
affect claim due to bad faith.
o Two ways to acquire title:
 AP action to quiet title, or
 Owner brings trespass suit to eject.
o Tacking and Disability in Adverse Possession
 Tacking of adverse possession period requires privity
(which comes from a deed running between parties
during transfers of land) No title? No privity, which
means no tacking
 Disability of the true owner can freeze the statute of
limitations indefinitely … tacking is not allowed. If owner
becomes disabled after AP period begins, it does not
affect the period of time.
o Law of Abandonment
 If the owner shows apparent intent to abandon all claim
to the property it is essentially up for grabs.
 Real Property – Adverse possession is an element of
claiming abandoned property
 Squatters have no rights of title.
o Philosophes take on Adverse Possession:
 St. Thomas likes it – things/property are to serve man;
people are stewards. Since property is limited some
people are left out. If the need is “manifest and urgent”
(imminent danger) it is lawful to secure another’s
property and is not theft.
 Blackstone doesn’t like it – property is an absolute right
of man, to which it cannot be taken away even for the
good of community; should only be taken as
punishment of a crime.
 Locke believes man deserves what he puts work into.
Labor acts like pursuit gaining possession over wild
state
 Mill believes giving property back after a great length of
time would be a greater injustice than to leave the
“original wrong without atonement.”
o St. Thomas Aquinas
 Whether it is lawful to steal through stress of need?
 It sure is… When a good is needed in essence for
survival, the person in need gains a superior claim
over the good but bread or goods stolen out of
necessity should be paid for later.
 Three Criteria

• Motive – why- you want to preserve your
life
• Circumstance – Extreme Need
• Deed – Taking property belonging to
another
o State v. Moe
 Great depression raid and riot of Red Cross commissary
 Need does not excuse criminal conduct, but may
mitigate punishment
o Matthew, Chapt. 12
 Jesus lets his disciples eat the heads of grain in fields,
justifies taking for necessity.
• 2. Of Chattel
o Autocephalous Greek Orthodox Church of Cyprus v. Goldberg
 Statute of Limitations doesn’t begin on adversely
possessed Chattel until true owner is aware of who has
item or where it is. As long as owner continues due
diligence to seek out the property then SOL doesn’t
begin = Due Diligence Rule.
 They may pursue action once a demand has been
refused.
 Bad faith purchaser must answer demand of true
owner; related to the tort of Conversion
 An unrecognized country’s claim through law may be
ignored
o Georgia O’Keeffe v. Barry Snyder
 Visible, open and notorious are all key aspects to get
the statute of limitations rolling. Personal property like
jewelry may be openly worn far from the owner, easily
concealing it.
o New York Rule
 Demand and refusal rule starts adverse possession
Statute of Limitation – clears up ambiguity of due
diligence rule.
• 3. Of Artifacts
 o Elgin’s Marbles
 Museum’s Property rights maintained since artifacts
were lawfully purchased (regardless of whether the
government should have at the time)
 Greece says marbles might as well have been stolen;
statutes are of vital importance to national heritage.
o 2002 Declaration on the Importance and Value of Universal
Museums – Discourages illegal traffic of artifacts, museums
serve international community as agents in the development
of culture – not just servants of one particular nation or
people. To restrict further would be a disservice.
o Kennewick Man and the Native American Graves Protection
and Repatriation Act
 Sacred objects and remains important to native
American cultures should be returned to tribes that are
interested
 If found on federal land and shown to be Indian
heritage, then they are to be returned to tribe or
federation
 If found on individual owners land, nothing is expressly
said.
 If in museum, then they should be returned to tribe
unless involved in research development (90 days to
return)
 In Kennewick Man – est. 9,000 yo – tribes have
difficulty claiming ownership with the older the artifact
that is discovered.
o Willamette Meteorite
 Considered a sacred object by Oregon tribe, but
museum had lawfully purchased it from a landowner …
compromise was met to maintain sacred access to rock
← III. Subsequent Possession: Finding (Will Finder’s Keepers hold
up in court?)
• 1. Lost Objects – item involuntarily parted with through neglect
o Armory v. Delamirie—Chimney sweeper finds jewel
  Finder retains ownership rights over found jewel after
finding it… he keeps it against all but the rightful owner
o Bridges v. Hawkesworth – finder in public area of shop
 Finder of item deemed “lost” retains claim over
landowner and may keep it against all but the rightful
owner
o South Straffordshire WaterCo. v. Sharman–Pool boy finds
rings
 Hired help does NOT maintain property interest over
landowner when lost property is found
 Pool was not open to public, finder was employed
• 2. Mislaid Property – intentionally put in place and later forgotten
o McAvoy v. Medina – See what I have Found (in barber shop)
 Finder of mislaid item does not maintain ownership over
landowner … w/ intent to return item to rightful owner
o The Law of the Find – Purpose is to (1) protect original
owner, (2) protect possession, (3) compensate advertiser
(finder or locus in quo owner), (4) protect LQO , (5) object
lying at the edge of property could go to finder over a land
owner.
 Abandoned Property – owner voluntarily relinquished all
right, title, claim and possession
 Finder’s maintain rights over locus in quo and the
person who gave up property rights
 Lost Property – owner involuntarily parted through
neglect, carelessness, or inadvertence.
 Finder maintains right over all the world except
the true owner prior to possession
 Mislaid Property – intentionally put into a certain place
and later forgotten.
 Locus in quo owner maintains property right
against all the world but the true owner prior to
possession
 Treasure Trove – treasure property that has been found
after being hidden … often requires substantial period of
time to establish finder’s exclusive rights (and likely
death of rightful owner)
 True owner or heirs maintain right but usually the
modern trend is to treat as lost property which is
given to finder.
 Common law splits authority between finder and
locus in quo owner.
o Michigan Lost Property Act –
 deliver lost property to law enforcement agency.
o Property interests in Sunken Treasure
 Columbus-America Discovery Group v. The Unidentified,
Wrecked and Abandoned Sailing Vessel
 Discoverers of sunken ship full of gold maintained
92 percent interest in a ship recovered against
underwriting insurance company that paid out on
the ships sinking 130 years prior.
← IV. Subsequent Possession: Transfer of Personal Property
• 1. Bailment
o Bailment (valet) is a Temporary transfer of possession from a
Bailor (driver) to another person called a Bailee (parking
attendant.
o The Winkfield Doctrine
 Allows the bailee to recover full damages for bailors
goods when damaged or taken by a wrongdoer. The
bailor can then go to the bailee to recover its costs.
 Sometimes criticized because bailee can use money as
bargaining tool.
• 2. Gifts—a voluntary transfer of property w/out any consideration
o Law of the gift – three parts to perfect a gift
 Intent to give on account of the donor
 Delivery
 Actual – handing over of a treasure chest
 Constructive – passing of a key or map to allow
donee access to gift
  Symbolic – intialing or engraving something to
mark it as donee’s property
 Acceptance on account of the donee
o Wilcox v. Matteson – promissory note under pillow
 Servant never grabs gift from under dying man’s bed
during his lifetime, this clouds the delivery portion of
the gift intended for the man’s wife and forces it to
become a part of his estate.
o Gift inter vivos
 Made during donor’s life; irrevocable.
o Gift Causa Mortis
 Because deceased could never refute parties claiming
intent to gift, delivery cannot be excused from the
requirements to perfect a gift in their lifetime.
 Made in contemplation of death; Revocable if donor
recovers
o Coconis v. Chirstakis – Wedding ring
 Plaintiff (guy) lost right to claim gifted ring on account
of his lack of interest in continuing the contract.
Defendant girl was not obliged to finish wedding plans
when it appeared he already broke the deal.
o The Wedding Ring – No fault method
 Wedding ring is returned to donor when engagement is
terminated to avoid determination of blame.
← V. Property in Ideas
• International News Service v. Associated Press
o Property rights can be kept in information gathered by a news
service due to the expenditure of staff, money and resources
in gathering it. While information is history that cannot be
owned, the intentional taking of an other’s gathered news is
an interference in business. AP has no property rights against
public but does have quasi property rights against INS.
• Holmes and Bentham – Says property is only a creation, does not
arise from value in contrast to property coming from God.
• Article 1 of Const. – grants Congress the power “to promote the
Progress of Science and useful Arts by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.”
• Note on Property in Ideas: Introduction to Intellectual Property
o Patents – protects inventions and processes developed
 Last 20 years after recorded at Patent and Trademark
office … may be extended for pharmaceuticals needing
to pass trials for market
 Requires three things
 1) Social utility (new or useful)
 2) Novelty (not previously described)
 3) that the subject matter of it is non-obvious
(must be beyond lay man’s skill to create it)
o Copyrights – works of art, literature, and composition
 Protects five fundamental rights (bundle of rights)
 Reproduction,
 Adaptation,
 Publication,
 Performance, and
 Display
 Last for term of author’s life plus 70 years
 Multiple authors protect survivor’s life +70years
 Two requirements
 Original work of authorship
 Fixed in a tangible medium of expression.
o Trademarks – protects marks which distinguish one product
from another. Must be a tangible and distinctive symbol,
word, name or device. Last 10 years Three sources
 Common Law of Unfair Competition
 Protected 1st person to “actually” use a mark for a
product in geographic area
 Lanham Act of 1946
  Nationwide protection of marks extended, 1st of
multiple users to register mark gets national
right, except in markets where mark is
established
 Trademark Revision Act of 1988
 Replaced actual use requirement to “intent to
use”
 Trademark
 is “any word, name, symbol, or device, or any
combination thereof”
• (1) used by a person
• (2) which a person has a bona fide intention
to use in commerce and applies to register
on the principal register established under
the Act to identify and distinguish goods.
 Must be “so distinctive that it is capable of
performing the function of identifying and
distinguishing the goods that bear the symbol
 A Trademark cannot be (inherently non-distinctive)
 Descriptive term
• Quality or nature “Good Oranges”
• Geographical source “Florida Oranges”
• Surname of person “Gary’s Oranges”
 Can if combined – “Gary’s Good Florida Oranges”
 What a Trademark Does (four things)
 1. Identify seller’s goods to distinguish from
others
 2. Signify that all goods bearing symbol come
from one source
 3. Signify equal quality among items with symbol
 4. Prime instrument in advertising and selling the
goods
← VI. Property in Persons
• 1. In Human Beings (obsolete)
 o Donum Vitae (the Gift of Life) – civil law can’t replace
conscience or dictate norms concerning things outside its
competence –
 inalienable rights of persons must be recognized and
respected by civil society and political authority –
 child has (a) right to be born and physical integrity from
conception till natural death and (b) a right to be raised
by his parents.
o Dred Scott case
o XIII Amendment – slavery is outlawed anywhere in the US
o XIV Amendment – US Govt owes nothing to anyone for loss of
slaves from 13th amendment.
o Karl Marx – Property is contingent, not a natural right.
Society creates it for benefit of certain classes to others
detriment.
o Pierre-Joseph Proudhon – “property is theft” ownership is
inherently stealing from humanity
o Lenin’s first decree – All land is taken away for no
compensation.
o Rerum Novarum (Read Again) – Papal encyclical says
benefit of owning property is a natural right, but in the end is
meant to serve humanity; not for any one person to
dominate, even through apportioned among individual owners
it is still meant to serve common good of all people
 Owning property gives motive for work
 To own goods, property is necessary for human life
 Man has reason unlike animals
• 2. In Human Tissue
o Moore v. Regents of UCAL develops two points
 One does not maintain property rights in tissues and
cells excised from the body (to amount to conversion)
 Physicians must disclose any pre-existing research or
economic interests prior to excising cells and tissues.
o Uniform Anatomical Gift Act
 Right to sell or purchase organs is expressly forbidden.
  Allows direction of anatomical gift to another or allows
waiver of direction
 Right to destroy is opposed on grounds that it
encourages waste and causes negative externalities
(such as death of those who are in need of an organ
and do not receive one)
o JP II Speech to International Congress of the Transplantation
Society (2000)
 Human Body is expression of the soul;
 Commercialization of body parts is immoral and wrong;
 To use body as an object is to violate the dignity of the
human person
o Junior Lewis Davis v. Mary Sue Davis – Frozen Embryo
 Raises embryos created from divorced parties to tissues
from proprietary tissues because of its potential for life.
 Not person until birth, but more than mere property
 Whoever does not want child prevails
← VII. Efficient Use of Property
• Aristotle says a poiticaly community, a state, can have three things
1. Common to all, 2. Nothing in common, 3. A mix
• Act 4:32 – “No one claimed that any of his possession was his own,
but they had everything in common”
• St. Thomas – Private property is lawful for men to posses
o 1. Man is more careful w/ it than held in common
o 2. More order in taking care of it if you know you are
responsible for it.
o 3. More peaceful state with less quarrels arising
• Julio Silva Solar – communist emphasis
o Dialogue on private property – owner of the mare owns the
mule couples slavery with property in they are both additions
to natural law, slavery went away, now its property’s time;
property holders have hypnotized others into believing
property is necessary for efficient use of property.
← VIII. Estates
• Interest (Remainders)
 o Present Interest – Where one has a right to possession right
now and may be enjoyed at the moment of conveyance
o Future Interest – Where one enjoys the right to possess in
the future, if at all
 Vested Interest – Ascertained person and capable of
becoming possessory at termination of prior estate
 Indefeasibly vested – sure thing
 Vested subject to total divestment – words of
condition subsequent “but if” that specify that any
child must survive A to take
 Vested subject to partial divestment – member of
an open class, like a group of children
 Contingent Interest – Subject to condition precedent
(can be alternative)(unborn person, unascertained)
 An unborn person
 An Unascertained person
 Subject to some other condition precedent
• Intestate – governed by statute
• Testate – governed by will
• Fee Simple – infinite duration or perpetuity
o Created by words “To A and his heirs …” though “and his
heirs” is often understood today
o Absolute and not subject to termination
• Fee Simple Defeasible
o Fee Simple Determinable – “So Long As,” “while,” “until,”
 Espouses a condition to maintain property or else it
returns to A and proper heirs. “so long as land is used
as a farm …”
 Adverse possession statute of limitations ambiguous,
once use changes, new heir must act
 No future interest in 3rd party
 Lesser duration given = Reversion
 Future interest in grantor is possibility of reverter
 Estate automatically ends.
o Fee Simple Subject to Executory interest
 “So long as, then to B”
  Executory interests only happen after a defeasible
estate based on something happening.
 Offers no future interest in O
 Instead it’s in 3rd party B, which is an executory
interest
 Automatically
 Shifting – divests a grantee
• “O to A and heirs, but if…, then to B and
heirs,” B’s interest is a shifting executory
interest
 Springing – divests a grantor … springs back to
grantor and then to a new grantee
• “O to A for life, then one year later to B and
heirs.” When A dies, O takes by reversion
and B then divests O one year later.
o Fee Simple Subject to Condition subsequent “In the
event that…”, “but if,” “upon condition that”
 Espouses direction in certain events after life
 Adverse possession Statute of limitation tolls once
grantor enters property to trigger ejectment.
 Future interest in grantor is upon right of entry
 Ends when O exercises the right.
• Fee Tail – as infinite as the continued descendency
o Created by words “To A and the heirs of his body …”
o Lasts only as long as the line has direct descendency from A
 When it runs out it can go back to O’s estate, or
 Get punted to B (a collateral line, previously stipulated)
• Life Estate – Old person’s best option to beat MedicAID’s lookback
period
o Signs away interests in the property on the condition that
person can live in the property until they die.
• Restraints on marriage and alienation are void
o “To A so long as she doesn’t marry” – void
o “To A so long as she hasn’t married” – may be valid if intent
is determined not in restriction of marriage
 o “To A, who cannot sell the land to anyone” – void due to
alienability.
• Lynch v. Bunting – Property sold with the intention to be a school.
o Expression that land must be used as a school makes it a Fee
Simple Determinable
• Forsgren v. Sollie – Property sold to be used for a church or home
o Phrases “on the condition that” and “this property is conveyed
to be used as and for a church or residence purposes only”
o Although it didn’t express a right of reentry it can be assumed
through a four-part test
 1. Language of the instrument – On the condition that
 2. Nature of condition and its importance to the grantor
– if it was an absolute condition of the sale.
 3.The amount of consideration paid for the transfer In
proportion to the full value of the estate in fee – was it
a major deal with the condition attached to it?
 4. Existence of facts showing the grantor’s intent to
benefit the adjacent land by the restriction – was it
meant to benefit the grantor naturally.
• Rule Against Perpetuities
o “No interest is good unless it must vest, if at all, not later
than twenty-one years after some life in being at the creation
of the interest” – John Chipman Gray
o Chilcott v. Hart
o Jee v. Audley
o RAP is not enforced against a vested interest
 If land is devised to A, a bachelor, for life, remainder to
his children
o Rule applies to future contingent interests created in a
transferee (NOT in the Grantor)
 Applies to third party grantees
 Applies to vesting contingent interests
 If interest is vested from the beginning then rule
doesn’t apply
 Rule is saying make your interest vested within this
point of time or its voided
  If reversion, possibility of reverter, right of re-entry;
rule doesn’t apply
 Rule is a rule of proof, not of construction (doesn’t tell
us how to interpret, intent is irrelevant – you just apply
the rule to the conveyance to see if it passes or not)
o If reversion, possibility of reverter, right of re-entry; rule
doesn’t apply
o Rule is a rule of proof, not of construction (doesn’t tell us how
to interpret, intent is irrelevant – you just apply the rule to
the conveyance to see if it passes or not)
o O to A so long as…(RAP does not apply here, even if a million
yrs)
← IX. Co-Tenancies
• Tenancy in Common (Default option)—Unity of possession by two
or more owners shaing a single right to possession of the entire
interest.
o They can alienate their interest without difficulty or concern
for co-tenant
• Joint Tenancy –Two or more persons holding property at the same
time, same timtle to the same interest and same right of
possession.
o Survivorship is central (like a tontine)—joint tenant surviving
other co-tenant takes the entire estate.
o Four unities needed to have a joint tenancy
 Unity of Time
 Unity of Title
 Unity of Interest
 Unity of Possession
o They can alienate their interest without difficulty or concern
for co-tentant
• Cortelyou v. Dinger – Tenancy in Common where one-half signed
their parcel to be a joint-tenancy with other party within Tenancy in
Common  completely kosher since TiC allows party severability in
interest.
• Tenancies by Entireties – Resembles joint tenancy in essence as
a common law approach to land owned by a husband and wife.
 o Survivorship gives sole possession to surviving joint-tenant.
o Unities are present since common law presumption showed
married couple as one person.
o Divorce or annulment would create a tenancy in common
where each party may have a severable, one-half
interest.
• Sawada v. Kokichi – Hawaiian couple conveys property to sons
before creditor could litigate claim against their assets
o No judgment can be taken against the innocent half of a
tenancy in entireties.
• US v. Parcel of Real Property known as 1500 Lincoln Avenue –
o Property owned in entirety between a husband and wife. The
law 21 USC §881(a)(7) seizes home but there is an exception
 Innocent party will not lose land—
 Wife had no knowledge, but her interest is not
severable because it is a tenancy by the entireties.
• Marriage and Property
o Genesis 2:24
o Mk 10:5-9
o The Common Law System
 Early system made woman “feme covert” under the
cover of her husband.
 Blackstone – “By marriage, the husband and wife are
one person in law: that is, the very being or legal
existence of the woman is suspended during the
marriage, or at least is incorporated and consolidated
into that of the husband.”
 Dower
 Jure uxoris
 Married Women’s Property Acts
 Wife retains control of property she brings prior to
marriage and may acquire more property
 Spouse
 Community Property States
 Since both parties bring
←
←
← X. Property in Land
• 1. Disovery and the Natural Law
• 2. Trespass.
←
←
←
←
←
←
←
←
←
Property II Course Outline 09/04/2010 10:29:00
← Gaudium Et Spes
← I. The Home Sale Process
• The Home Sale Process
• London v. Courduff (1988) –Buyer suing for unknown sale of landfill
o Caveat Emptor insulates the seller in this instance because
the buyer should have known or should have investigated
o EXCEPTION: Caveat Emptor will not protect seller when
they’ve actively concealed defects to the property.
• Stambovsky v. Ackley (1991) – Buyer seeks rescission on haunted
house
o Caveat Emptor typically applies to most physical attributes of
property, however, “as is” clause did not apply to paranormal
attributes to the property.
o Poltergeists are not among common questions for
homebuyers  cannot be expected to be thoroughly
researched
o Seller had told public, and periodicals of haunting but not to
the prospective buyer  enables exception to Caveat Emptor
• The Ghost of Nyack
• “Stigmatized Property Law” Feb. 2006
o Haunted homes, murders, AIDS-inflicted residents may all be
required to be disclosed to buyers of property.
• Caveat Emptor
o “If the parties are at arms length, and excepting
concealment, there is no duty on the part of the seller to
disclose defects to a buyer”
 EXCEPTIONS: Defects that are not readily discoverable
upon normal inspection (i.e. toxic waste storage,
poltergeists)
• Sales Contract, Sample
• Estate System Definitions, Deed
o Mortgage deed – Instrument creating a mortgage. Must
contain:
 1) The name of the mortgagor,
 2) words of grant or conveyance,
  3) the name of the mortgagee
 4) a property description sufficient to identify the
mortgaged premises,
 5) the mortgagor’s signature
 6) an acknowledgment
o Quitclaim deed – A deed that conveys a grantor’s complete
interest or claim in certain real property but that neither
warrants nor professes that the title is valid.
o Warranty Deed – A deed containing one or more covenants
of title; esp., a deed that expressly guarantees the grantor’s
good, clear title and that contains covenants concerning the
quality of title.
o Contract for Deed – A conditional sales contract for the sale
of real property. AKA “Installment Land Contract; Land Sales
Contract; Land Contract.
• Grand Lodge v. Thomasville (1970)
o A title that used indefinite description terms was found invalid
… “running about eight acres to a stake” is inappropriate
measure and cannot accurately define parcel of land.
• Estate System Definitions, Mortgage
o Mortgage – A conveyance of title to property that is given as
security for the payment of a debt or the performance of a
duty and that will become void upon payment or performance
according to stipulated terms.
o Mortgagor -- homebuyer
o Mortgagee – bank.
• Central Financial Services v. Spears (1983)
o When a foreclosed property is then turned around and sold in
short timing the borrower should get the surplus of what was
owed on the property.
• AmJur Legal Forms, Abandoned, Lost and Unclaimed Property to
Acknowledgements, 2d edition
• Haner v. Bruce (1985)
o An attaching party to a property does not lose his interests in
a property to a bona fide purchaser when a city clerk errs in
filing the attachment properly.
← II. Leasing a Residence
• Leasehold Estates
o Term of Years – A landlord-tenant relationship may be
created to endure for any fixed or computable period of time.
 o Periodic Tenancy – A landlord-tenant relationship may be
created to endure until one of the parties has given the
required notice to terminate the tenancy at the end of a
period.
o Tenancy at Will – A landlord-tenant relationship may be
created to endure only so long as both the landlord ant eh
tenant desire. Statutes commonly require some period of
notice to terminate the tenancy.
o Tenancy at Sufferance – The period during which a tenant
improperly holds over after the termination of his lease.
• Wolfer v. Hurst (1905) – Similar outline of Tenancies
o Tenancy at sufferance—Holdover
o Tenancy at Will – see above
o Tenancy from year to year – notice required, see periodic
tenancy above.
o Tenancy for years need not be defined, determinable by the
mere expirateion of the period for wtith lands were demised.
• Estate System Definitions, Landlord-Tenant
o Landlord-Tenant relationship – legal relationship existing by
contract conveying ownership to another
 Lessor -- landlord
 Lessee – tenant/renter
o Lease : (1) A contract by which a rightful possessor of real
property conveys the right to use and occupy the property in
exchange for consideration, usually rent … may be fixed for
life, a period or a period terminable at will. (2) Such a
conveyance plus all covenants attached to it. (3) The written
instrument memorializing such a conveyance and its
covenants.
 Assignable Lease – A lease that the lesse can transfer to
a successor.
 Ground Lease – A long-term (usu. 99 year) lease of
land only. Such a lease typically involves a commercial
property, and any improvements built by the lessee
usu. Revert to the lessor … AKA ground-rent lease, land
lease.
• Landlord/Tenant Law
o Holdover – a tenant’s occupation of a property after the
termination of a lease.
o Self help – Common law rule that allows landlord to retake
leased premises from a holdover tenant under 2 conditions:
 (1) The landlord is legally entitled to possession, such
as where a tenant holds over after the lease term or
where a tenant breaches a lease containing a reentry
clause
 (2) the landlord’s means of reentry are peaceable.
o Modern Rule: Self Help is NOT an option and the landlord
must instead resort to JUDICIAL PROCESS for a remedy.
• Berg v. Wiley (1978) – Self help, hanging from an awning case
o Self-Help elected but not followed … public policy reasoning.
o American Rule – Implied condition that lessor is to give
“legal possession”
 Gardner v. Keteltas – Actual possession not necessary
when property is leased.
o English Rule – Legal possession and ACTUAL POSSESSION
are given to lessee upon rental of the property.
 Restatement follows ER because 5 reasons:
 1. Landlord has knowledge or should have
knowledge that is superior to the lessee
 2. Landlord has superior knowledge as to whether
the property will be available as the time will
come.
 3. Landlord is the only one with the ability to evict
a tenant before the transfer of the leased
property
 4. Landlord is the only person who can make sure
there isn’t a holdover
 5. The tenant will receive less than what is
bargained for if he must go through legal
proceedings to remove the holdover tenant
• Propst v. McNeill (1996)
 o Caveat Lessee – While the lessor is obligated to repair the
property, he is not liable for any damages resulting from the
property collapsing when it was leased in poor condition.
• Echo Consulting Services, Inc. v. North Conway Bank (1995)
o Tenant loses access due to landlord’s remodeling:
 Implied Covenants of Quiet Enjoyment – A breach of
the covenant of quit enjoyment occurs when the
landlord substantially interferes with the tenant’s
beneficial use or enjoyment of the premises.
 Constructive Eviction C/A will focus on the extent of
interference with the property.
 Plaintiff is allowed to seek compensatory damages for
depriving the tenant from peaceful enjoyment of
tenancy – loss of productivity at work.
• Lemle v. Breeden (1969) – Rats infested in a thatched roof property
o Implied Warranty of Habitability – a property should be
warranties for livability
 Derived from Law of Sales which has shown:
 The public interest in safety and consumer
protection
 That the burden ought to be shifted to the
manufacturer who by placing the goods on the
market, represents their suitability and fitness.
o Constructive eviction – Requires that the tenant abandon the
premises within a reasonable time after giving notice that the
premises are uninhabitable or unfit for his purposes.
• Solow v. Wellner (1995) – Manhattan high rise w/ broken elevator
o Warranty of Habitability is a minimal standard NOT a
neighborhood standard.
o Bargaining for waiver of habitability standard is not allowed.
o They get an elevator because its obscenely tall high-rise but
they don’t get other amenities purely because of the
neighborhood.
 1. Premises are fit for human habitation
 2. The premises are fit for the uses reasonably intended
by the parties
  3. That the occupants will not be subjected to
conditions that are dangerous, hazardous or detrimental
to their life.
• Johnson v. Scandia Associates, Inc. (1994) electric shock appliance
o Warranty of habitability extends to personal injuries for
dangerous conditions hidden on the premises when:
 (1) the landlord is a professional landlord in he business
of renting dwelling on a regular basis
 (2) the plaintiff is a tenant in privity of the K with the
landlord.
• Martinez v. Woodmar (1997) – Mexicans mug apartment guest
o Landowner is liable for foreseeable dangerous activity of
criminal intruders when it harms the guest of a tenant in an
area where the landowner remains in control of the premises.
• Letter from J. Skelly Wright
• “Whatever Happened to Landlord Tenant Law?” Gerald Korngold
• “Landlord Kills Tenant and Tries to Commit Suicide
o Self Help  bad …
• Lindsey v. Normet (1972)  rent control retaking of property
o Oregon Forcible Entry and Wrongful Detainer statute allowed
2-4 days notice to retake property after 10 days holdover of
rent. Plaintiff filed due process claim
 Shelter is not a fundamental right according to the
court; if anything there is a right from interference with
property  which goes in favor of the landlord.
← III. Right to Shelter
← IV. Servitudes
• Easements
o Features
 Entitles owner of such interest to a limited use or
enjoyment of the land in which interest exists
 Entitles owner to protection against 3rd parties from
interference in such use or enjoyment
 Not subject to the will of the land’s possessor
 Not a normal incident of the land’s possession
 Is capable of creation by conveyance
 o Positive–Allows travel and use of another’s property to benefit
o Negative-Prevents action on property that would interfere
with neighbors right to air + light on property (trump towers)
o Easement Appurtenant – When the easement is created to
benefit and does benefit the possessor the land in his use of
the land, it runs with the land.
o Easement in Gross – doesn’t run with the land and only goes
with a specific person.
o Prescriptive Easements¨-- Obtained from Adverse Possession
 1. Must be adverse use
 2. Must be for the period of prescription, continuous and
uninterrupted.
 3. Restatement requires Open and Notorious elements
as well
o Creation of Easement by Implication—Two kinds
 Existing Use – when parcel is divided and prior to the
division, a portion of the property was apparently and
continuously used in such a manner that the parites
would reasonably expect such use to continue after the
division.
 By Necessity – created when a division of property
landlocks one of the parcels.
• Schumacher v. Department of Natural Resources (2003)
o 9 parcel prescriptive easment problem (horse-buggy or car)
 “The manner, frequency, and intensity of the use may
change over time to take advantage of developments in
technology and to accommodate normal development
 Reasoning: unused land is dumb, courts will bend on
property rights significantly to allow access to property
 but does not require unduly interference of another’s
property.
• Real Covenants – Contractual promises to do or refrain from doing
certain activities on their properties
o Intent – parties must intend that covenant run with the land
to bind successors
 o Privity of Estate – requirement for running of the burden and
the running of the benefit.
 Running of the Burden – Requires Horizontal and
Vertical Privity
 Horizontal - between two covenanting parties
 Vertical – between owner and successor.
 Running of the benefit – only requires vertical privity
o Touch and Concern – the covenant must relate to the use of
the land itself.
o Notice – succeeding parties must have notice of restrictions of
the covenant existing.
• Peto v. Korach (1966) – Parcels share a sewer line. Covenant tested
o 1. Intent of the Parties (magic words are nice but not
dispositive)
o 2. Touch and Concert -> what interest would the orginal
grantor have in the covenant after selling it
o 3. Privity of Estate – requirement of running burden
• Shelley v. Kraemer (1948) – Race restrictive covenants
o State action’s not allowed (court action is state action)
o Private Action: if the matter stays within covenanting parties
o HOLDING: Race restrictive covenants cannot be held or
enforced as running with the land
• Hill v. The Community of Damien of Molokai(1996)–AIDS home
o Group home violates single family home covenant in
neighborhood as a Business/Hospice facility
o Court says home fulfills single family home PURPOSE …
doesn’t redefine family but comes close.
• Tulk v. Moxhay (1848) – public square purchased with covenant
o If a purchaser gets a deal on property with a covenant it
would inequitable for them to turn around and make a profit
through a sale while saying the covenant didn’t run with the
land. Hence the Equitable Servitude!
• Equitable Servitudes -- covenants enforceable in equity.
o No Horizontal privity is required
o Vertical privity required for burden to run
o Reasons servitudes may be found invalid under public policy
 1. Arbitrary, spiteful, or capricious
2. A servitude that unreasonably burdens a
fundamental constitutional right
 3. A servitude that imposes an unreasonable restraint
on alienation
 4. A servitude that imposes an unreasonable restraint
on trade or competion
 5. A servitude that is unconscionable
• Restatement (Third) of Property, Servitudes (2000)
o Indirect Restraints on Alienation and Irrational Servitudes
 Even if it indirectly restrains alienation by limiting use,
it still remains valid
 A servitude lacking rational justification is invalid
o Modification and Termination of Servitudes because of
changed conditions
 When conditions change to make servitude
impracticable the court may modify or terminate the
servitude while compensating beneficiary parties.
• Michigan Farmland and Community Development, “Transfer of
Development Rights”
o Land swap type deal to allow more open space with transfer
of development rights to commercial areas.
← V. Nuisance and Environmental Law
• Spur Industries, Inc. v. Del E. Webb. Development Co. (1972)
o Poop farm and city grow toward each other and developer
brings nuisance suit.
o Developer gets injunction but must bear farm’s moving costs
• “An Introduction to Law and Economics,” Mitchell Polinsky (1983)
• A Decision-Tree for Nuisance Cases—Questions to ask
o Infringement malicious?
o Infringement significant?
o Whose there first?
 Defendant Increasing incompatible with surroundings?
 Total harm greater than total benefit?
 Total benefit greater than harm
 Plaintiff  Are they hypersensitive?
  Total benefit v. total harm
• An Update on the Calabresi-Melamed Literature on Remedies
• Garrett Hardin
• Tragedy of the Commons, Garrett Hardin 1968
• Cornwall Declaration on Environmental Stewardship
• Some Notable Signers of the Cornwall Declaration
← VI. Zoning
• U.S. Const. Bill of Rights, Amendment XIV
o “… nor shall any state deprive any person of life, liberty, or
property without due process of law.”
• A Standards State Zoning Enabling Act
• Village of Euclid v. Ambler Realty Co. (1926)
o Zoning justification comes from nuisance reasoning: “A
nuisance may be merely a right thing in the wrong place-like
a pig in the parlor instead of the barnyard. If the validity of
the legislative classification for zoning purposes be fairly
debatable, the legislative judgment must be allowed control.
o Zoning restriction is not automatically a taking because it
restricts use.  cannot be arbitrary fiat to be valid
• U.S. Constitution Bill of Rights, Amendment V excerpt
o No person shall… be deprived of life, liberty, or property,
without due process of law.
• Berman v. Parker (1954)  District of Columbia Redevelopment Act
o Public safety, health and morals are valid purpose for zoning
o “Miserable and disreputable housing conditions may do more
than spread disease and crime and immorality. They may also
suffocate the spirit by reducing the people who live there to
the status of cattle”
o “Congress and its authorized agencies have made
determinations that take into account a wide variety of
values. If those who govern the District of Columbia decide
that the Nation’s Capital should be beautiful as well as
sanitary, there is nothing in the 5th amendment that stands in
the way.”
• Village of Belle Terre v. Boraas (1974) – Long island college apart.
 o “The police power is not confined to elimination of filth,
stench, and unhealthy places. It is ample to lay out zones
where family values, youth values, and the blessings of quiet
seclusion and clean air make the area a sanctuary for
people.”
• Edmonds v. Oxford House, Inc. (1995)  Fair Housing Act allows
local governments to restrict maximum number of occupants
o Court rules city code describing “family” composition cannot
be used as maximum occupancy restriction exempt from FHA
• Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel
(1983)
o Mount Laurel Doctrine -- Municipality laund use regulations
provide a realistic opportunity for low and moderate
income housing.
• Public Law 106-274, Sept. 22, 2000 (Religious Land Use Act)
• Shepherd Montessori Center Milan v. Ann Arbor Charter Township
(2003) – Commercial use restricted daycare center
o ZBA’s refusal of variance after allowing predecessor use
offered “chilling effect” on the religious exercise use.
 Substantial Burden – not a mere incidental effect and
not a mere inconvenience.
← VII. Eminent Domain
• 1 Kings 21
• U.S. Const. Bill of Rights, Amend. V, Excerpt
o “nor shall private property be taken for pubic use, without
just compensation”
• Hadacheck . Sebastian (1915) L.A. Brickyard
o Not a nuisance because it was there before the city was
o Not a taking despite it no longer allowing current use … still
has value to the owner – just not most profitable use.
• Pennsylvania Coal Co. v. Mahon (1922) –
o Old deed allowed for coal removal w/o supports
o Plaintiffs say Kohler Act should prevent further mining, but
court says law cannot infringe on contract law (of the deed)
• United States v. Commodities Trading Corp. (1950)
o “just compensation” of 17 million lbs of pepper
 o Emergency Price Control Act can restrict price but it cannot
compel sale, that’s exactly what U.S. did.  U.S. cannot be
forced to pay ‘retention value’ of sale
• Berman v. Parker (1954) – D.C. redevelopment BEAUTY
o The ends of a public good with eminent domain can be
achieved through a private agency’s means
o The rights of these property owners is satisfied with
compensation and full title may be attained if needed.
• Penn Central Transportation v. New York City (1978)
o No set formula for takings cases, but
o A taking may be more likely when there is an impact on
economic value of the land, or
o When there is an interference with the use of the property
o Mere interference with gov’t program does the common good
• Loretto v. Teleprompter Manhattan CATV Corp. (1982)
• City of Oakland v. Oakland Raiders (1982)
• “Voices from an Accidental Wilderness: The Quabbin Reservoir”
• Hawaii Housing Authority v. Midkiff (1984)
• “Black Families Resist Mississippi Land Push”
• “Archie Family Wins Eminent Domain Battle Against State and
Nissan”
• County of Wayne v. Hathcock (2004)
• Kelo v. City of New London (2005)
← VIII. Housing Discrimination
• A Short History of American Civil Rights Housing Laws
• U.S. Const. Bill of Rights, Amend. XIII (1865)
• Civil Rights Act (1866)
o Separate but equal is not allowed anymore- through the
explanation of the next cases
• Buchanan v. Worley (1917)
o Police power, as broad as it is, cannot justify the passage of a
law or ordinance that runs counter to the limitations of the
Federal Constitution- therefore, alienation of a person of color
was not a legitimate exercise of the police power of the state
 Under the 14th amendment
• Title 42, Chapter 21, Subchapter I §1982
• Jones v. Alfred H. Mayer Co. (1968)
o Bars all racial discrimination, private as well as public, in the
sale or rental of property, and the statute thus construed, is a
valid exercise of the power of Congress to enforce the 13th
amendment
 Contracts are not so sacred that they allow
discrimination
• U.S. Const., Article I, §8 Clause 3
• Civil Rights Act of 1964: Public Accommodations
o All persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and
accommodations of any public accommodation
 The operations of an establishment affect commerce
within the meaning of this title
 If it serves or offers to serve interstate travelers
or a substantial portion of the food which it
serves, or gasoline or other products which it
sells, has moved in commerce
• (if you move stuff through commerce you
are on the hook), unless you use your own
indigenous tools, you don’t get stuff from
anywhere else, and you don’t send it out
• Substantial portion- does not necessarily
mean anything
 This does not apply to bona fide private club or other
establishment not open to the public
• U.S. Const. Bill of Rights, Amend. XIV (1868)
• Title 42, Chapter 45, Subchapter I § 3601
• Title 42, Chapter 45, Subchapter I § 3602
o Fair housing extends to handicap- familial status
 Handicap- means with respect to a person—
 A physical or mental impairment which
substantially limits one or more of such person’s
major life activities
 A record of having such an impairment
  Being regarded as having such an impairment but
such term does not include current, illegal use of
or addiction to a controlled substance
 Familial Status- mean one or more individuals (who
have not reached 18 years) being domiciled with
 A parent or another person having legal custody
of such individual or individuals
 The designee os such parent or other person
having such custody with the written permission
of such parent or other person. The protection
afforded against discrimination on the basis of
familial status shall apply to any person who is
pregnant or is in the process of securing legal
custody of any individual who has not reached 18
• Title 42, Chapter 45, Subchapter I § 3603
o Application to certain described dwellings
 Can’t discriminate in the sale or rental of housing
 Can’t refuse to sell or rent after a bonafide offer,
or refuse to negotiate
 Can’t print an advertisement that would put
people on notice

• Title 42, Chapter 45, Subchapter I § 3604
 You must accommodate a handicapped renter, and
allow them to perform modifications of the home- they
must restore the premises to the condition that existed
before the modification
• “Childproof” Christopher Caldwell
o FHA forbade discriminating against families with children
 Except it exempted developments for people 62 or older
 Or 55 and older with the significant facilities and
services specifically designed to meet the physical or
social needs of older persons
• ACLU Files suit for unmarried couple denied housing permit, 2006
 o Had an ordinance that prohibits more than 3 people from
living together unless they are related by blood, marriage or
adoption—this is against the FHA law… ACLU filed suit
 Can state limit definition of family???
• Title 42, Chapter 45, Subchapter I § 3606
• Title 42, Chapter 45, Subchapter I § 3607
• Hill v. The Community of Damien of Molokai (1996)
o Aids Community sues their development company because
violate the FHA, They have a neutral restrictive covenant
about family only individuals related by blood or by law- only
families can live there
o Does a facially neutral restrictive covenant apply to the FHA
o FHA makes it unlawful to discriminate- discrimination
includes a refusal to make reasonable accommodations
 Discriminatory intent
 Plaintiff must show that the handicap of the
potential residents of a group home, a protected
group under the FHA, was in some part the basis
for the policy being challenged
• Don’t meet this here, absent intent to
enforce the covenant because of some
anumus toward the use of the prop as a
group home b/c the res. Have aids…
 Disparate Impact
 Plaintiff must prove that the defendants conduct
actually or predictably results in discrimination or
has a discriminatory effect—do this by Four
Factors to be balanced
• How strong is plaintiff’s showing of
discriminatory impact claim
o Weighted heavy—here for P
• Is there any evidence of discriminatory
intent
o This is the least weighty- and favors D
• What is the defendant’s interest in taking
the challenged action
 o Whether it is a private right
benefitting individuals or a
governmental interest protecting the
public welfare
o Weighs less in this analysis bc the
interest served by enforcement of the
covenant is private rather than public
• Is the plaintiff seeking to compel the
defendant to affirmatively provide seeking
to compel the defendant to affirmatively
provide housing to the handicapped or
merely to restrain the defendant from
interfering with individual landowners who
wish to provide this housing
o Factor strongly favors P
o A covenant that restricts occupany
only to related individuals or that bars
group homes has a disparate impact
not only on the current residents of
the communitys group home who
have AIDS but also on all disabled
individuals who need congregate
living arrangements in order to live in
traditional neighborhoods and
communities
 Reasonable accommodation
 An accommodation is ot reasonable if it would:
• Require a fundamental alteration in the
nature of a program
• If it would impose undue financial or
administrative burdens on the defendant
• Title 42, Chapter 126, Subchapter III § 12181
• Title 42, Chapter 126, Subchapter III § 12182
• Title 42, Chapter 126, Subchapter III § 12183
← IX. Private Property, Public Good
• Centesimus Annus
 o
• An Introduction to the Public Trust Doctrine
• Glass v. Goeckel (2005)
 09/04/2010 10:29:00
←