Lara Covington

INTRODUCTION: WHAT IS PROPERTY?

Property: a legally protected expectation of being able to draw some advantage from the thing in
question according to the nature of the case.
Property Basics
Real Property = relates to land and those things more or less permanently attached to it
Ex: buildings, houses, etc.
Property right is usually given by the state or transferred by the owner
Personal Property/chattel = all other things subject to individual rights; tangible or intangible
Tangible property: things that are movable and touchable. Ex: watch, pen, etc.
Intangible property: financial instruments (stocks, bonds) and intellectual property (copyrights,
patents, trademarks, etc.).
Property right is usually created specifically for sale or use by the creator and clearly belongs to
its producer.
Property Rights (bundle of rights)
= Protection of property rights creates incentives to use resources efficiently (economic function)
Right to exclude:
To the world: keep off unless you have my permission, which I may grant or withhold.
Signed, Private Citizen. Endorsed by the State. Cohen.
Endorsement of the State: property and the state are born together and will die together,
without the state there is no property and without property there is no state.
limited in cases of emergency or necessity
for commercial property: limited by state civil rights laws
Right to use and enjoy
limitations when the using or enjoying affects others (noise ordinances, covenants)
Right to transfer (during life or upon death)
limitations/restrictions on rental of property (FHA)
Right to maintain ownership of property
limitations imposed by state by foreclosure or eminent domain power
Justifications for the institution of private property
1. Occupation theory: simple fact of occupation or possession of a thing justifies legal protection
of the occupier or possessors claim to the thing.
Ex: Faverstroms they occupied the land
2. Labor theory: a person has a moral right to the ownership and control of things he produces or
acquires through his labor.
Ex: If a person clears wilderness (labor of clearing unowned land leads to entitlement)
3. Contract theory: private property is the result of a contract between individuals and the
community
4. Natural rights theory: natural law dictates the recognition of private property
5. Social utility theory: the law should promote the maximum fulfillment of human needs and
aspirations, and that legal protection of private property does, in fact promote such fulfillment.
a. Granting property rights in a thing helps to encourage productive use.

Three criteria of an efficient system of property rights:

1. Universality: i.e., all resources should be owned or ownable by someone unless it is so
abundant as to make ownership unnecessary.
2. Exclusivity: to give owners an incentive to incur the costs required to make efficient use of
resources owned by them.
3. Transferability: because if a property right cannot be transferred, there is no way of shifting a
resource from a less productive to a more productive use through voluntary exchange.

ACQUIRING LEGAL RIGHTS TO TRANSFER

(OTHER THAN VOLUNTARILY)
Adverse Possession
= a non-owner can acquire full ownership rights in real property is the non-owner possesses property
without permission by the true owner for a certain amount of time.
It must be actual possession that is open and notorious, exclusive, continuous, and adverse or
hostile for the statutory period.
this applies to the property, not the owner. The time frame can encompass many owners.
the statute of limitations begins to run when the claimant goes adversely into possession of the
true owners land
Actual possession
Must be sufficient to assert general ownership of the strip of land or parcel in question.
Can amount to the ordinary use to which the land is capable and such as an owner would make
of it (taking care of it, maintaining it, etc.).
A prescriptive easement may be granted for limited use of the land
Open and notorious
Notorious = notice-giving
Must be sufficiently visible and obvious to put a reasonable owner on notice that her property is
being occupied by a non-owner with the intent of claiming possessory rights.
The true owner is charged with seeing what reasonable inspection would disclose.
- no actual notice required, constructive notice is sufficient
Exclusive
Use of a type that would be expected of a true owner of the land in question
Possession cannot be shared with the true owner
Two adverse possessors may acquire joint ownership rights as co-owners.
Continuous
Must exercise control over the property in the ways customarily pursued by owners
look at characteristics of land and the customs of the community its in.
for rural land, a lesser exercise of dominion or control may be sufficient
Tacking doctrine: Succeeding periods of possession by different persons may be added together
most states require that the successors are in privity with each other.
If the successor dispossessed the prior adverse possessor, there is generally no benefit
from the tracking doctrine; it must be from the true owner.
Adverse or Hostile
Use must be without permission of true owner.
Adverse possessors state of mind (three tests)
Lack of permission/bad faith (objective)
- adverse possessor acted without permission of true owner.
- Permission is a complete defense, but must be proven.
- The intent of the trespasser is irrelevant. Most commonly used test.

 Intentional dispossession (subjective)

- adverse possessor is aware that the land belongs to someone else and intends to
dispossess true owner (bad faith trespasser).
Good faith (subjective)
- adverse possessor mistakenly occupies property owned by someone else.
True owners state of mind
Presumptive permission
true owner considers use of land as permissible unless otherwise explicitly stated.
Presumptive non-permission
used by most courts; use of land is considered non-permissive unless permission
is explicitly given.
For the statutory period
Usually 10, 15, or 20 years.
Many states will toll the statute of limitations if the true owner is under a disability.
infancy, insanity, incompetence.
some states say that being out of the state or imprisonment can be a disability.
If the true owner files suit before the statutory period runs out and judgment is rendered after the
period ends, the judgment will relate back to the time when the complaint was filed
Under Color of Title: some states require that adverse possessors show that they purchased the property
pursuant to a deed that mistakenly failed to describe accurately the boundaries of the property and that
possessed the land in the belief that they owned it.
Claims against the Government: generally not upheld.
certain instances where there are exceptions
Prescriptive Easement
= limited right to use the property of another
Requirements: exclusivity not required for a prescriptive easement and actual possession is replaced
by actual use
affirmative easement = right to affirmatively do something with respect to someone elses property
right to walk through backyard
negative easement = right to prevent someone from doing something on their property
neighbor prevents you from building an additional story on your house.
analogous to the doctrine of adverse possession: except with easements you can only use them for
limited purposes and there are relaxed requirements
Theoretical justification of adverse possession
more efficient use of the land (shown in actual possession requirement)
- why not require that the adverse possessor to purchase it?
reliance, unfair bargaining
reliance on the land after a certain period/settled expectations (show in continuity requirement)
- adverse possessor has already grown roots and become attached to the property
response to European feudalism
- prevent land from concentrating in the hands of few
punishment of the true owner for not monitoring her property and making an objectively efficient
use of it/ encouraging productive use
- dont want the land to be left idle
- involves value judgments about what the proper use of property is.

The Body and Genetic Material (and Patent Law)

Patent law
= creates a limited monopoly to encourage the production of inventions processes, machines, and
compositions of matter.
basis for Patent law stems from Art.1, 8, cl.8 of Constitution: empowers Congress to promote
the progress of science and the useful arts by securing for limited times the authors and inventors
the exclusive right to their writings and discoveries.
History: came from Royal Letters Patent that granted exclusive privileges to conduct certain trades or
manufacture certain goods
Policy: public benefits directly from the invention and the spur to innovation
Requirements: must obtain a patent from Patent and Trademark Office (PTO) when meets requirements:
patentable subject matter
process, machine, manufacture, or composition of matter
novelty, non-obviousness and usefulness
Rights: inventor obtains exclusive rights to make, use, and sell the innovation and exclude others
protects even against independent creation
(trade secrets have unlimited terms: recipe for Coke)
the patent owner need not use the patent, but must prove its use elsewhere
Exceptions: laws of nature, natural phenomena, and abstract ides.
BUT, an application of any of above can be patented
Duration: a period of 20 years from the date of the patent application
Pros: gives incentive to pursue inventions and public disclose them and it rewards the labor of inventor
Cons: creates artificial scarcity (prevents others from non-rivalrous use), incentive for costly patent
races, may increase industry concentration and set a barrier to entry
Moore v. Regents of the University of California
Facts: Moore under went treatment for leukemia at hospital. The doctors took cells from the , knowing that the cells were
valuable in the area of scientific research.
Holding: The final patented product is legally and factually distinct from the Moores cells. The patented product is not the
natural phenomenon that was taken from Moore, his cells could not have been patented alone. His contribution is
unpatentable; and the researchers efforts contributed all the value to the invention

Trademark Law
Grants property-type rights in words, names, logos, color schemes, etc. for those who use such marks in
connection with their goods and services in commerce.
Trademark
= a word, phrase, symbol, etc used to identify and distinguish ones goods or services from those of others
protected by federal statute: The Lanham Act (under Commerce Clause)
sounds, colors, scents and shapes may also be protected.
Protection requirements: using the mark in commerce with ones goods or services will give the
exclusive right to continue to do so.
PTO registers trademarks, but it is not necessary to be registered to obtain protection.
infringement turns on whether consumers are likely to be confused as to the origin of the goods
or services (not on similarity or whether or not the copied).
the mark must be distinctive, not generic
distinctive: suggestive and fanciful marks will be offered broader protection (Polaroid).
generic: offered less or no protection (All News Channel)
trademarks do not expire: continue until abandoned by owner (renewable 10 year terms)

Original purpose: protect consumers in a world of mass merchandising from unscrupulous sellers
attempting to fly under the banner of someone elses well-known logo or identifying symbol.
Now, it creates a system whereby consumers can rely on a mark that they are familiar with to
identify goods and services (prevent product confusion)
Benefit: gives incentive to the company to invest in the marks
Duration: lasts as long as the owner continues to use the mark to identify her goods and services
(renewable ten year terms)
Trademark Dilution
1125(c) of the Lanham Act
Requirements for injunction:
use of the mark must begin after it becomes distinctive or famous
use must cause dilution of the distinctive quality of the mark (blurring)
= the lessening of the capacity of the famous mark to identify and distinguish
good/services, regardless of likelihood of confusion, or of competition.
need not show likelihood of confusion
must be commercial use in commerce
the use need not be competitive
Requirements for damages:
same as above, plus willful intent to trade on the owners reputation and cause dilution of the
famous mark
Trademark Infringment
1125(a) of the Lanham Act
Requirements:
use in commerce
use of any word, term, symbol, combination, or false or misleading representation that is likely
to cause confusion as to the association of such person with another person as to the origin or
approval or his or her goods by another person
use of any word, term, etc. in commercial advertising or promotion that misrepresents that
nature, qualities, or geographic origins of his or another persons goods, services or commercial
activities
Liability: liable in civil action for any damages
Use in commerce: prerequisite for Congress to use its power under the Commerce Clause
putting the good out there, putting it into the stream of inter-state commerce.
Commercial use: use for a profit
Domain names
unique addresses for web sites that map to Internet protocol (IP) addresses
historically, there are 5 generic top level domains (TLDs): .com, .org, .edu, .net, and .gov.
NSI and other domain name registrars register domain names (DNs) on a first come, first served
basis with no pre-clearance procedure.
cyber squatters (hijackers) or pioneers whose foresight should be rewarded?

Why are there disputes between trademarks and domain names?

Domain names are registered on first-come first serve basis and required no check for conflict with
existing trademarks
Domain names are global whereas trademark protection is at best national
Trademarks are registered for certain classes of goods and services, not domain names.
ex: Ritz camera, Ritz Carlton, Ritz crackers.
Anti-cybersquatting Consumer Protection Act
amendment to the Lanham Act
Requirements: no commercial use requirement or famous mark requirement
must establish that the domain name registrant had a bad faith intent to profit from the mark
(including a personal name) and registers or uses a domain name that is identical or confusingly
similar or dilutes of the mark.
Bad faith intent factors (Supp, 62):
does squatter have any trademark or other IP rights in the domain name?
does domain name consist of legal name of the squatter?
does the squatter use the name in connection with bona fide offering of goods/services
is the squatters bona fide use noncommercial or fair
intent to sell domain name
intent to divert customers
providing misleading false contact information
acquisition of multiple domain names that the squatter knows are similar to famous marks
Nissan Motor Co. v. Nissan Computer Co.
Facts: Nissan Computer used a symbol similar to Nissans and put car related information on their website
Rule: To obtain a preliminary injunction the moving party must show either: (1) a combination of probable success on the
merits (trademark infringement claim) and the probability of irreparable injury without the injunction; OR (2) that serious
questions are raised and the balance of hardships tips sharply in favor of the moving party.
(1) To prevail on a trademark violation claim, the s must show they have a valid, protectable interest in their mark and that
the defendant is using a confusingly similar mark (strength of s mark, relatedness of goods, similarity of marks, evidence of
actual confusion, marketing channels used, degree of care likely to be used by purchaser, s intent, likelihood of expansion of
the product lines).
Holding: The Court held that Nissan had a valid, protectable interest in their mark and the injunction was issued ordering
Nissan Computer to identify the websites affiliation, disclaim affiliation with Nissan Motor, and not to display any
automobile-related information on their website.
Intermatic Inc. v. Toeppen
Facts: Toeppen was using the name intermatic for a webpage and put a map of Illinois on it.
Holding: The court held that there was not a high enough likelihood of confusion for a summary judgment on the trademark
infringement claim because there was no similarity of products/services, there is no area of manner of concurrent use, there
was no evidence of consumer confusion or actual confusion and Toeppens intent is a question of fact that must be decided at
trial. The court held that Intermatic could succeed in summary judgment for trademark dilution because he used the name for
a commercial use (registered for profit) in commerce (on net) after the name was famous and the use was causing dilution of
the distinctive quality of the mark (Intermatics name on webpage and lessens Intermatics ability to distinguish itself on the
Internet).

Requirements
Patents

Trademarks

Domain Names
Copyrights

How to acquire exclusive

rights
Invention is new,
Notify others by patent
useful, and non-obvious. designation on item
Get the right to exclude
everyone else from
making using or selling
the invention during a 20
year patent term
Must be a distinctive
Trademark infringement
mark to identify or
law: get the right to
distinguish
prevent others from using
goods/services in
the same or similar mark
commerce
in commerce in a manner
that is likely to cause
confusion.
Trademark dilution law:
get the right to prevent
others from making
commercial use in
commerce of the same or
similar famous mark such
as to dilute the distinctive
power of the mark.
Trademarks rights are
renewable every 10 years
as long as the mark is
used and not abandoned.
Trademark owner has the
duty to prevent slippage
of the mark into generic
usage (Band-aid, Q-tip)
Register with a domain be the first one to
name registrar
register
Must create an original Get the right to prevent
work of authorship.
anyone else from
reproducing, modifying,
or distributing your work
from the moment the
work is created until 70
years after the authors
death.

Registration
Must register with
PTO

Registration is
optional
Confers rights to
nation-wide use of the
mark.
Can put a trademark
symbol on the mark to
notify others.

Must register with a

domain name registrar
No need to register
There are incentives
to register
Can put a copyright
notice on work to
assert property rights.

Information
Protection for databases
US law offers little legal protection
some bills have been proposed, but none have passed
Peter Yu thinks the reason for no laws is that the proposed bills have constitutional
problems and are too protective.
The EU has passed laws offering database protection
since US databases arent protected, Europeans may pirate the US information.
Copyrights
covers literary and artistic expression
basis for Copyright law stems from Art.1, 8, cl.8 of Constitution: empowers Congress to
promote the progress of science and the useful arts by securing for limited times the authors and
inventors the exclusive right to their writings and discoveries.
Requirements: the work must exhibit a modicum of originality and be fixed in a tangible medium of
expression.
ideas are not protected, but the expression of the idea is protected
Ex: idea of a mob boss seeing a shrink is an idea that is not protected, but the expression
(rich details) of it by HBO is protected
registration is a prerequisite to copyright infringement
Rights: Get the right to prevent anyone else from reproducing, modifying, or distributing your work
protects a copyright holder from unauthorized copying, public performance, display, and allows
them to control the sale and distribution of the work.
others fair use is protected
independent creation is not a violation need proof to determine if it has been copied illegally.
Duration: from the moment the work is created until 70 years after the authors death.
Difference from patent law: easier to secure and last longer, but scope of rights is narrower and less
absolute.
Title 17 of the U.S. Code The Copyright Act
102(a): original works of authorship fixed in a tangible medium of expression
if Nunziato lectured without notes, she would not be able to copyright the lecture because it was
not fixed in a tangible medium
102(b): copyrights do not extend to ideas (as opposed to a protected expression)
103: compilations are protected by copyright
106: get the right to reproduce, adapt (make book into movie) or distribute, perform or display to public
107: others fair use of the copyrighted work (for certain purpose/character of use)
201: copyright protection vests originally in the author, but not if employee (employer gets copyright)
302: copyright subsists from its creation and endures for life + 70 years
408(a): registration is permissive, not mandatory
Feist Publications v. Rural Telephone Service Company
Facts: Rural sues for copying telephone listings (had some fakes to prove it).
Holding: To obtain copyright protection, the work must be original. Facts are not copyrightable, but some compilations if
they are arranged in a creative fashion (however, the facts themselves are not protected, just the arrangement). The purpose of
allowing facts to be copied is to encourage the development of science and the arts. Rurals white pages were devoid of any
creativity and not original at all, so Feists use of the listing was not copyright infringement.

Hypothetical Copyright law and Websites

listing of sports scores
setup/arrangement are probably subject to copyright (predictions, MVP choice, the arrangement)
- originality of arrangement is not a stringent standard, need not be innovative
the actual scores are not protected by copyright because facts and pre-existing information are not copyrightable (
103(b)).
- Justice OConnor says facts are not copyrightable according to 102(b) because discovery is
synonymous with facts.
The software program is commonly considered a writing and is likely protected by copyright law
Another user can legally copy the data, just not the predictions or MVP choices
Is the arrangement really original? Arranging by sport, teams, time of games
Nunziato seems to be hinting that it may not be original; it may just be a common sense way of arranging scores

ACQUIRING LEGAL RIGHTS BY VOLUNTARY TRANSFER

Delivery of Deeds
deed must be delivered to the grantee to effectuate a transfer of ownership
some courts are reluctant to find delivery unless the deed has been physically handed over
possession of the deed gives a presumption of intent to transfer (can be overcome with
evidence to refute)
constructive delivery: engaging in conduct that demonstrates an intent to transfer ownership is
sufficient to constitute delivery.
Warranty of title/title covenant
= an additional assurance (other than chain of title search) to the buyer that their ownership rights will be
secure against other claimants
PRESENT COVENANTS: breached at time of conveyance(closing)
covenant of seisin
grantors promise the he owns the property interest
seisin: interpreted as record title
covenant of the right to convey
grantors promise that he has the power to transfer the interest
violated if there is an enforceable restraint on alienation or land is adversely possessed
covenant against encumbrances
grantors promise that there are no encumbrances (mortgages, liens, unpaid taxes, or
easements) on the property
FUTURE COVENANTS: breached after closing, when disturbance to grantees possession occurs
covenant of warranty*: grantor promises to compensate grantee for monetary losses
general warranty deed
- covenants against all defects in title
special warranty deed
- limits covenant to acts caused by grantor, but not acts of prior owners
quitclaim deed
- purports to transfer property interests, but does not provide the buyer with any
real assurance
- you get what I got, but I wont give you any assurances about it
covenant of quiet enjoyment
grantees possession will not be disturbed by any other claimant with a superior title
covenant for further assurances
seller must take further steps to cure defects in title (get rid of encumbrances or adverse
possessors)

Recording Acts
intended to provide buyers of real property with the security of knowing that they will really own
the property interests they are buying
Recording: submitting a deed to the local registry is called recording the deed
recording systems do not protect the grantee against all risk, must check other sources
no requirement that a deed be recorded for a conveyance to be legally valid
deed is effective upon delivery to buyer (recording matters only in disputes)
Common law rule: first in time, first in right
first one to record has the rights to the property
created radical uncertainty for purchasers
Modern Rule: subsequent purchaser without notice of prior conveyance who records first wins
information forcing rule: requires purchaser to notify world of her title or risk loss of property
Purpose: adjudicate disputes between multiple claimants to the same property by defining priorities
Estoppel by deed: if the grantor claims to covey an interest to a grantee that he doesnt own and then later
obtains the deed, they are estopped from keeping it and the interest is immediately vested in the grantee
Wild deed: a deed that is recorded either too late or too early and cannot be found in a title search.
Scope:
only protect subsequent purchasers against unrecorded conveyances
does not protect against possessory interests acquired by adverse possessor
do not protect subsequent donees
Types of Recording Acts
Under common law, the prior purchaser prevails over the subsequent purchaser.
Recording Acts create exceptions:
Race statutes: the person who records first prevails (no matter who its conveyed to first)
- person who doesnt record is punished for not doing so
- very rare
Notice statutes: subsequent purchaser prevails if they did not have notice of earlier conveyance
- all you must do is take without notice, no need to record
- notice includes:
actual notice: knowledge of earlier conveyance
constructive notice: imputed from existence of previously-recorded deed
- if the deed is recorded, that suffices as notice
inquiry notice: where diligent subsequent purchaser would be put on notice
- if due diligence were used, notice would be given
- If you get the property without notice and then the other person records, it doesnt matter.
Race-notice statutes: subsequent purchaser prevails if:
1. they had no notice of the prior conveyance, and
2. records first
Title Search
typically a recording office uses a grantor-grantee index
all instruments are listed alphabetically and chronologically by the grantors or grantees
last name
to go back in time, use grantee index; to go forward in time, use grantor index
start by searching for sellers name in grantee index to find out who his grantor was, etc.

Chain of Title Problems

Recording acts protect a subsequent purchaser because at common law the first buyer always prevails.
were talking about the relative innocence of the prior purchaser and the subsequent purchaser,
instead of talking about the truly guilty seller.
there are steps the prior purchaser can take to put the subsequent bona fide purchaser on notice
Estoppel by deed: if the grantor claims to covey an interest to a grantee that he doesnt own and then
later obtains the deed, they are estopped from keeping it and the interest is immediately vested in the
grantee
Wild deed: a deed that is recorded either too late or too early and cannot be found in a title search.
Shelter doctrine: allows a bona fide purchaser to convey property to a third party even if the third party
is on notice of an earlier conveyance.
Sabo v. Horvath
Facts: Lowery seeks a land patent from the federal government (like a land grant).
AG
1959: transfer from Alaskan government to federal government
10/1964: Lowery occupied land in Chitna Recording District
2/1965: Lowery filed a location notice
6/1967: Lowery made his application to purchase with Bureau of Land Management
3/1968: BLM field examiners report was filed (recommended patent issue to Lowery)
10/1969: request for survey made by the U.S.
LH
1/1970: Lowery issued a quitclaim deed to Horvaths, who recorded it with notice that patent and title were
still held by the U.S. Government
G L 8/1973: patent issued to Lowery and he advertised the land for sale
LS
10/1973: Lowery issued a quitclaim deed to Sabos
12/1973: Sabos recorded
The Sabos sued the Horvaths in a quiet title suit for the court to figure out whose land it was. Alaska has a race-notice statute.
Holding: The court must figure out whether the Sabos recorded first and had no notice.
Notice: They also ruled that the Sabos quitclaim deed did not put them on constructive notice. Also, having a wild deed
recorded too early outside the chain of title does not put them on constructive or record notice because it was a great burden to
require the Sabos to look beyond the chain of title while not so great a burden for the Horvaths to rerecord once the patent was
issued to Lowery.
Record: They finally ruled that the Horvaths recordation was outside the chain of title since Lowery had not yet received the
patent, so it was not duly recorded, therefore the Sabos recorded first, so their interests prevail.
Notes: The deed from L H is a wild deed recorded too early outside of the chain of title.

DEFAULT RIGHTS AGAINST PRIVATE PARTIES

TRESPASS AND PUBLIC ACCOMDATIONS LAW
Right to Exclude
Physical real property: Shack: right of access competing with real property owners right to exclude
Public accommodations common law: right of reasonable access as against innkeepers and common
carriers
Public accommodations statutes: federal Civil Rights Act of 1964 and state Human Rights Acts
Organizations: Jaycees, Boy Scouts: challenges to organizations right to exclude
The Scope of the Common-Law Right
Right to Exclude v. Right to Access
A property owners right to exclude is not absolute
Non-owners get access to property in three types of cases:
when owner has excluded everyone, but there is an emergency (protecting human life)
when owner has allowed non-owner to possess part of their property (tenants)
- right to receive guests, facilitate labor organizations
when owner has opened property to general public
- cannot discriminate, must allow free speech
The more the property owner has opened up property to public, the more the public has earned a
right of access to that property
State v. Shack
Facts: Tejeras and Shack wanted to enter Tedescos property to give legal and social services to needy migrant workers.
Holding: Ownership of real property doesnt include right to bar access to governmental services available to migrant workers.
Notes: Sources of limitations on Tedescos Right to exclude and the states criminal trespass law:
Supremacy Clause: federal statutes were created to provide assistance to migrant farm workers. Those statutes were being
undermined by the NJ Criminal trespass law if it was enforced to exclude Tejeras and Shack from the property.
1st amendment rights of Tejeras and Shack to provide information to workers and the 1st amendment rights of the workers to
receive the information. Sometimes a private actor acts like a public actor because of what they are doing with their property
One should not use their property so as to injure the rights of another: mans right in his property is not absolute and the state
gets to define the bounds.

Remedies for Trespass

Trespass = intentional intrusion on the property possessed by another
need not know the property was possessed by another
need not intend to trespass
Remedies:
damages (nominal, compensatory)
injunction or ejectment
declaratory judgment (court states your legal rights against other party)
Distinguished from nuisance
nuisance: when invading particles are non-physical or insubstantial (odors, chemicals)
nuisance: interference from right to use and enjoy property
trespass: interference with right to exclude
Exceptions
consent (privilege)
necessity
public policy

Trespass that Improves

What should be done when someone mistakenly invests a lot of money in building a structure
that encroaches on a neighbors property?
Minority rule: many older courts hold that the owner has a right to an injunction ordering the encroaching
structure removed (regardless of cost or value)
Majority rule: Relative hardship doctrine
If the encroachment is innocent (mistake), the harm is minimal, the interference is small, and the
costs of removal are substantial, the courts will refuse to grant an injunction ordering removal
must pay owner the fair market value for what was lost
If cost of removal is minimal, or interference is substantial, removal may be ordered
Removal usually ordered if the builder knowingly built on neighbors property
Problem: The relative hardship doctrine gives the encroacher the power of eminent domain
(only the government should have this power).
Alternative Damages Remedies:
Damages according to Samson v. Brusowankin:
value of the destroyed property
diminution in the fair market value of the land comparing value before and after
- sometimes it can actually increase, or decrease by very little
- doesnt take into account of personal value of the land (too objective)
cost of reparation
- full cost of restoration
- reasonable cost of reasonable restoration
punitive (act must be beyond mere negligence)
ask s how much it would be worth to them (purely subjectively)
- sometimes subjective value is higher even than purchase price
Damages according to First Baptist Church:
1. whether the damage is to realty held for personal rather than a business use
2. whether the injury is capable of repair
3. whether the repair can be accomplished without expending amounts wholly disproportionate to
the value of the land.
Samson Construction v. Brusowankin
Facts: Sampson tore down beautiful trees from the Brusowankins property
Holding: Sufficient evidence of Samsons negligence. The court says that although many courts use the before/after test for
damages, it is not an exact formula and that each case should look at the circumstances and that where fruit/shade/ornamental
trees are destroyed, many courts hold that the proper measure of damages is the diminution of value to the land, not necessarily
determined by market value before and after, but under some circumstances by the reasonable cost of reasonable restoration of
the property. WHY? Because very often the injury may be great because of personal value where the general market value
may not be greatly impaired. The Bs and Ks showed undisputed reasons personal
First Baptist Church of Lombard v. Toll Highway Authority
Facts: The toll highway created great flooding that never happened before.
Holding: proper measure for damages depends upon the nature of the injury. If property is partially injured, the proper
damages are the cost of restoring to the condition prior to injury. Here, the Court ruled that the property was quasi-personal,
capable of repair, but for #3, there is no record of the value of the Church. Trial court erred in including costs not directly
related to cost of repair.

Trespass to Chattels in Cyberspace

Trespass to chattels = intentionally using or intermeddling with a persons personal property (in such a
way as to cause injury)
injunction: just tangible interference or intermeddling
damages: interference and intermeddling with injury or dispossession
Intel Corp. v. Hamidi
Facts: Hamidi aired his grievances about being fired in mass emails. He refused to stop.
Elements in dispute:
Trespass to chattels = intentionally using or intermeddling with a persons personal property (in such a way as to cause
injury)
injury: is temporary dispossession of property necessary to be injured?
- No because they are only seeking an injunction and there was some minimal injury
- depending on relief sought, there are different elements required
injunction: just tangible interference or intermeddling
damages: interference and intermeddling with injury or dispossession
injunction and 1st amendment right to free speech
1A protects only from government infringements, not private ones
- private property owners bundle of rights includes content discrimination

Public Accomodations: the Common Law and Statutes

Old Common Law: an absolute right to exclude (until Civil Rights laws were created)
Common law: public accommodations
Maxim: a public accommodation cannot unreasonably refuse right to access
what is included in public accommodation?
- innkeepers and common carriers
what constitutes reasonable access or legitimate reason to exclude?
- disrupt the regular operations or threaten security
- unless the owner has a rule, there is no right to exclude
the more you open your property to the public, the smaller the right to exclude
- private home owner: right to exclude is virtually unlimited
- innkeeper: very limited right to exclude
innkeepers and common carriers: must admit and serve all passengers
prohibited from refusing service to a customer (no right to select guests)
treated as servants to the public
limited by public right to reasonable access
Why do innkeepers and common carriers have this limit on their right to exclude?
scarcity of competition (public may not have a choice)
protect right to travel away from home (a place to stay and means of travel)
How to exclude?
use selectivity in admittance (not open themselves up to general public)
- for ex: country clubs, dance clubs, etc.
look to advertising (the more they offer for public to come, the less their right to exclude)
Uston v. Resorts International Hotel, Inc. (1982)
Facts: RIH excluded Uston from the blackjack tables in the casino because of card counting.
Holding: The court held that when a property owner opens their premises to the general public in the pursuit of their own
property interests, they have no right to exclude people unreasonably. The property owner can exclude where there is a threat
to security or a disruption. Ulston is not a threat or disruption, so he can have reasonable access. Changed common law rule
by extending right to reasonable access to all businesses opened to the public

Public Accommodations Statutes and Canons of Construction

Public Accommodation Statutes
Federal and state statutes protect against some discrimination: race, religion, ethnicity, gender
Civil Rights Act of 1964:
Directly addressed the problems of racial discrimination in motels, restaurants, lunch counters,
department stores, gas stations, and theaters.
businesses not covered: churches, clothing/retail stores, medical facilities, and schools
types of discrimination prohibited: discrimination or segregation based on race, national origin,
religion or color
entitled only to declaratory or injunctive relief
Heart of Atlanta v. United States (1964)
Facts: sued contending that Congress exceeded its power to regulate commerce in passing the Civil Rights Act, that the
government is taking their right to exclude without due process under the Fifth Amendment, and that the act is in violation of
the Thirteenth amendment by involuntary servitude.
Holding: The majority held that Congress did have the power to make the Act based on the Commerce Clause. There was
ample evidence that discrimination of people in public accommodations impeded commerce between the states by restricting
the ability of people to travel.

Canons of Statutory Construction

Ex: a public accommodations statute lists only restaurants, lunch counters, and ice cream parlors.
Is a coffee shop included in the statute?
Linguistic
Inclusio/expressio unius est exclusio alterius:
- the inclusion of one is the exclusion of the other
- Ex: if coffee shop isnt in there, its not meant to be included
E jusdem generis/noscitur a sociis:
- words take their shape by surrounding words, we know a word by its companions
- ice cream parlors are construed in terms of restaurant and lunch counters.
Plain meaning:
- refer to the dictionary definition of the term and their ordinarily accepted meanings
- Ex: does restaurant mean the same thing as coffee shop?
Substantive
Statutes in derogation of the common law should be strictly construed
- The common law is the background set of norms and expectations, so changes should be
hard to come by
Remedial statutes should be liberally construed to achieve their objectives
- if a statute is intended to right some wrong, the court should construe it as broadly as
possible to achieve its objective.
Public Accommodations Statutes and Legislative History
United States Jaycees v. McClure
Issue: Is the Minneapolis Jaycee a business facility under the Minnesota statute or a place, establishment or facility of
whatever kind under the Iowa statute?
Holding: They are a business facility because of how they term members as customers. They have no size limits and they
are not selective of members, hence they reach out to the public.
US Jaycees v. Iowa Civil Rights Commission
Issue: Is the Iowa Jaycee a public accommodation under the statute?

 Iowa: uses e jusdem generis and the plain meaning of the terms. Place has physical connotations, so establishment and
facility are construed in terms of place and should also have the same connotations.
Dissent: Majority ignores the Iowa Civil Rights Commissions definition of public accommodations that was given and the
court has always held that appropriate weight should be given to the judgment of such agencies.
US v. Jaycees in Supreme Court.
The Jaycees used a 1st amendment right Freedom of association claim saying that their right to associate was being
infringed by being forced to associate with women.
The Court disagrees. There was an overriding social policy and the right to associate was not being infringed because they
already associated with women.
Boy Scouts v. Dale
The Boy Scouts assert their freedom of association for purposes of expressing the tenant that homosexuality is morally
unacceptable. Telling them they have to allow homosexuals is violating their freedom of association and 1 st amendment rights.
They express that people should be morally straight and that allowing a gay man in their group would inhibit their ability to
express their viewpoints.
The court agrees. Also, there was not an overriding social policy.
Lloyd Corp v. Tanner
Facts: Lloyd Corp is a the owner of a big mall called Lloyd Center which is open to the public. was handing out leaflets
protesting the draft. The District Court found that the Center was the functional equivalent of a public business district and that
they were violating s First Amendment rights. Holding: The company town case is distinguished because in that case
private interests were substituting and performing the functions of government. The Center does not serve the same purpose as
a business district. Reversed.
Notes: Still need a state actor in this case to assert first amendment rights. Here, there is no state actor or an actor that is
taking on state responsibilities.
Company town doctrine (roots in Marsh case)

Fair Use in Copyright Law

Right of access of others to use intellectual property FAIR USE
Must look at:
1. Purpose and character of defendants use
2. Nature of copyrighted/plaintiffs work
3. Amount/substance of portion used by defendant
4. Effect on the market for plaintiffs work
Salinger v. Random House
Facts: wrote a famous book and didnt want it published. published it anyway and paraphrased extensively from
unpublished letters written by .
Holding: Court focuses first on unpublished nature of the works. Once a work is published, there is a greater entitlement to
fair use. The authors right to control first publication outweighs a claim of fair use. Unpublished letters normally enjoy
insulations from fair use copying; here it is a significant factor. Four factors:
1. purpose of the use (s favor)
biography shouldnt get a special fair use, but it was fair use because it was scholarly research and
contributes to public knowledge
2. nature of the copyrighted work (s favor)
unpublished works, narrower scope of fair use
3. amount and substantiality of the portion used (s favor)
amount of copied expression is significant even though paraphrased (district court didnt consider the
paraphrased portions) and paraphrasing is copied expression
may harm Salingers literary reputation
4. effect on the market (s favor slightly)
may prevent people from buying/reading the letters before publication because they may feel that they have
already read Salingers words in the letters (he says)

Since fair use is to have a more limited scope with unpublished works, and only had one factor weighing on their side, then
Salinger wins. is free to make the biography with facts reported, but cannot use Salingers expressive content.

NUISANCE AND ITS RELATIVES

Introduction
Trespass: unprivileged physical intrusion onto property possessed by someone else
Nontrespassory interferences:
= use of ones own property in ways that harm the property interests of ones neighbors.
settled by certain rules governing the behavior or by nuisance law
nuisance: causes (1) substantial harm that (2) unreasonably interferes with the use and
enjoyment of neighbors property
Entitlements: the way courts resolve land use conflicts (absent statutes or zoning ordinances)
Defendants privilege: has a privilege to act (no violation) and has no legal right to stop
can keep doing what he was doing
Plaintiffs security: is not legally entitled to engage in the activity without s permission
can get damages for harm or injunction to stop
Reasonableness test: the can engage in the activity if it is reasonable (compare costs and
benefits against social utility)
can require a moral or policy judgment on the legitimacy of the conduct
look at extent of harm to , social benefits of and s action, overall social costs,
availability of alternative means of mitigation, s motive, who had prior use
Prior use: legal entitlement awarded to the person who established the first use
Prior appropriation: a right to commit the harmful activity to the person who first
established her use
Prescription or adverse possession: right granted after use has continued for a substantial
period of time
Remedies
Dismissal of complaint: constitutes a ruling for and entitlement to engage in activity
Damages: usually cost of restoration and diminution of market value
Injunction: order for to do or not to do certain acts
Purchased injunction: ordering the activity be stopped on the condition that the reimburse the
for the opportunity loss occasioned by ceasing the activity
Policy arguments
Fairness in social relationships: rights are relative, the uses of one must not unreasonably
impair the uses or enjoyment of the other (no unlimited right to use land and injure others
Rights as freedom of action: a fundamental right to use ones property legally without worrying
about neighbors use or enjoyment
Rights as security: property holders have a right to be protected from land use by a neighbor
who unreasonably interferes with anothers enjoyment
Value judgments: the best way is to look at the interests of both parties in the social context and
make a value judgment about the merits of the claims.

Borland v. Sanders Lead Company

Facts: Borlands owned land where they raised cattle, grew crops, and have a pecan orchard. The SLC moved in on the
property east of theirs and started an operation for the recovery of lead from car batteries. The Bs allege that the smelting
process resulted in the emission of lead particulates and sulfoxide gases that damaged their property.
Holding: Trespass may be an intrusion of invisible matter or energy, regardless of size or ability to see with the naked eye
(force and energy test). Trespass is an intrusion that invades the possessors protected interest in exclusive possession. For
continuous trespass, the could get damages for their use before and after or fair market value. For direct trespass, the need
not show actual damages, but for indirect trespass, there are several factors which must be shown. Also, s can recover if
trespass proximately caused any injury.
Notes:
Trespass: measure of damages greater, longer statute of limitations
Nuisance: shorter statute of limitations, must show additional factors

Nuisance Liability
Trespass: unprivileged physical intrusion by a person or an object that interferes with the property
owners right to exclude
Nuisance: protects landowners from unreasonable conduct that causes substantial harm to the use and
enjoyment of real property.
balance harms and utilities of the conduct and the land use
invasion of particles can be both nuisance and trespass
Restatement on Nuisance (see handout):
= an intentional invasion of anothers use and enjoyment is unreasonable if:
the gravity of the harm outweighs the utility of the actors conduct
gravity of harm determined by:
- extent of harm involved
- character of harm involved
- social value that the law attaches to the type of use or enjoyment invaded
- suitability of the use or enjoyment to the character of the locality
- burden on the person harmed of avoiding the harm
utility of conduct determined by:
- social value that the law attaches to the purpose of the conduct
- suitability of the conduct to the character of the locality
- impracticability of preventing or avoiding the invasion (alternative means)
other factors: who was there first (prior use) and applicable laws (zoning requirements or
strict liability for ultrahazardous use).
the harm caused by the conduct is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct impossible
sometimes it is reasonable to operate an important activity if payment is made for the
harm it is causing
if continuation is impossible, unreasonableness is determined similar to an injunction
Rights Approach v. Social Utility Approach:
rights approach: under 829A, the is liable even if that causes to shut down and causes a net
loss in social utility
social utility approach: under 826A, if s conduct has more social utility than harm it has
caused, the has to suffer without relief.
Page County Appliance Center v. Honeywell
Facts: owned an appliance center and sold TVs. The reception was disturbed from a computer installed by Honeywell one
store down. sued for nuisance and tortious interference.

Holding: Use the standard of normal person (normalcy standard prevents hypersensitive s). Here, was not peculiarly
sensitive. However, the reasonableness test should have gone to the jury (with factors of how to determine) as well as whether
the s conduct was a substantial factor. New trial granted.
Notes: Hypersensitivity of can be a defense in nuisance, unlike negligence (take as you find her). The standard of care
doesnt matter in a nuisance case.
Jost v. Dairyland Power Cooperative
Facts: A coal burning plant discharged 90 tons of sulfur dioxide gas in the air each day and it settled on the farms of . It
whitened their alfalfa, killed trees, rusted through screens, and made it impossible to grow flowers. claims their land
diminished in value and their was crop damage was at least 5 percent.
: argue that they used due care (defeats nuisance) and that the social utility of the industry is greater than the
gravity of any harm
Holding: Due care doesnt matter, you can use the highest degree of care and still be held liable for nuisance. Also, the social
utility of the industry does not mean that damages should not be paid for the harm done (probably different with an injunction).

Remedies
Three basic kinds of remedies in nuisance:
Property rules: fix an absolute entitlement to engage in conduct ( loses) or to be secure from the harm
( loses injunction or damages).
The parties can bargain for the opposite result (pay them off).
Liability rules: prohibit each party from interfering with the interests of the other unless the party is
willing to pay damages determined by a court of law.
the liable has the legal right to commit the harm as long as it pays the court
injunction will not be issued, but may be purchased (compensate for lost profits)
Inalienability rules: assign entitlements and prohibit those entitlements from being sold or exchanged
makes the right to be free from harm inalienable
Utilitarian (competition v. secure investment)
= gravity of harm of s conduct and utility of s conduct
if the utility is high, then remedy may be limited to damages and not an injunction
nuisance without utility = injunction
Rights- based (freedom of action v. security)
= comparison of s and s rights in the use of land
Jost cont
Damages: court took a rights-based approach and didnt use a utilitarian approach. Even a small injury should be redressed,
even if there is a great and social enterprise involved.
Boomer v. Atlantic Cement Co.
Facts: The s claim that a large cement company caused injury by emanating smoke, dust and vibration from the plantThey
seek an injunction and permanent damages (185,000 for past, present and future damages). The plant employs 300 people and
has invested 45 million in the plant.
Holding: The court denied an injunction, but issued permanent damages. It is for the government to deal with air pollution,
and the utility of the plant is too great to allow an injunction. This is more of an issue for the legislature. The damages that the
plant must now give to any that comes along will give the the incentive to change their behavior. The payment of
permanent damages precludes future recovery by s or their grantees. (focus on economic detriment)
Dissent: The plant has no public benefit and New York precedent allows for injunctive relief to s who have greater than
100$ damage. (focus on health detriment)

Light and Air

Fontainebleau Hotel v. Forty-Five Twenty-Five
Facts: F wants to extend and build a 14-story extension. Eden Roc is mad because the extension will
block all the light and air from their pool and cabana area. ER is arguing that the extension injures them
and was done with malice (spite fence cases), that they and their predecessors have enjoyed a prescriptive
easement of light and air for 20 years, and that F is violating building ordinances.
Spite fence cases: cannot build a structure that harms neighbor purely for malice or spite
(narrow scope)
Holding: The court focuses solely on Fs right to use land as they wish and rule in favor of them. ER
didnt enjoy any right to light and air on their property. No injunction issued.
Economic Analysis Coase Theorem
EX: suppose prevails, but the addition is more valuable to (10mil) than it harms (6mil).
If there are no transaction costs, it doesnt matter what legal rule is chosen. can just bargain
around the rule and pay between 6 and 10 million. He suggests that it doesnt matter how it
comes out because any legal rule will produce an efficient result. The addition will be built. It
just makes a difference to the parties pocketbooks.
If there are transaction costs: some costs may prevent the parties from achieving the efficient
result, such as bargaining (legal fees, meetings, negotiations, etc) and information costs (need to
know where the other side stands, need financial advice to project what the value to each side is)
as well as other costs (interest on loan, etc.)
strategic bargaining: holding out until prices rise, etc.
Prah v. Maretti
Facts: owns a home (first in neighborhood) and has a solar-heated house. The purchased a lot next to . realized that
s house would shade his solar collectors and asked him to move his house back a bit, although was within zoning codes
and regulations. refused. brought a nuisance action for injunctive relief claiming that s house would interfere with his
use and enjoyment of the land.
Holding:
common law nuisance: owner doesnt have unlimited right to use land, there is nuisance when there is an unreasonable
interference.
Restatement (2nd) of Torts: broad definition of interest in the private use and enjoyment of land to include any disturbance
of the enjoyment of property
Traditionally there was reluctance to protect access to sunlight:
1. property owners should use property as they wished
Court held that there is increased regulation of the use of land for the general welfare
2. sunlight was only for aesthetic enjoyment (not necessary for seeing)
Court held that access to sunlight has new meaning (source of energy)
3. societal interest in not impeding land development
Court held that there is no longer a need for easy and rapid development
Motion for summary judgment is denied. Prah has stated a claim for which relief can be granted.

Zoning
The means by which the state regulates the use of land
as opposed to servitudes and covenants = means for private parties to plan out uses of their land
states enjoy broad police power to regulate safety, welfare and morals of the community and delegate
that power to municipalities and towns to enact zoning regulations.
Use zoning: regulates the kinds of uses allowed within each district
- usually cumulative: in residential zones there is usually nothing else allowed, but in
industrial zones everything is allowed
Area zoning: regulates the size of lots, heights of buildings, and other layout requirements
- like a limit on how high buildings can be
police power = regulate health, safety, welfare, morals, etc. no need to compensate
takings power = must be taking for a public use and must compensate for the property
if regulation is such that the land can no longer be used, then the argues there is a taking
Problems: can be used to keep out people for racial reasons or segregate (make certain areas have big,
expensive lots that immigrants couldnt afford)
zoning used to separate apartments from single-family dwellings
Amber Realty v. Village of Euclid
Facts: Euclid Avenue was a beautiful street with high aesthetic value. In 1922, the ordinance against industrial use was
passed. possessed the land before the ordinance passed and intended to sell it for industrial uses, which it is adapted for.
The market value goes down substantially if were to use it for residential versus industrial uses (10,000/acre to 2500/acre).
claim state was using takings power rather than police power and that he should be compensated.
Holding in S.Ct: It is appropriate for the state to regulate property rights to prevent persons from causing harm to
others. The ordinance cannot be arbitrary and must bear a rational or substantial relation to the health and state of the
community. Here, they did. The court looked at separating U2 (residential) and U6 (industrial) zones because of the dangers
to children, noise, traffic, safety, and parasites.

DEFAULT RIGHTS AGAINST GOVERNMENT ENTITIES

The state defines property rights and enforces them, but they also limit them.
Police power: power of state to pass legislation regulating private conduct to protect the public health,
welfare, and safety.
compensation: NO (damage without legal redress)
Eminent domain (takings) power: power to take private property and transfer the property to some use
designated to further the public welfare.
compensation: YES
Takings clause: 5th amendment: Gov cant take private property for public use without just compensation.
The takings clause mediates between police power and the eminent domain power by defining
when a purported exercise of the police power has gone too far in infringing on private property
rights without adequate public justification (thus being use of eminent domain power)
3 elements: (1) a taking (2) for public use (3) without just compensation.
(1)/(2): government may take property to effectuate a legitimate public purpose

 (3): as long as its for a public purpose, the government may take property as long as it
compensated the owner
traditionally, only physical invasions of the property were takings. More recently, regulation of
property use has been considered a taking.
A regulation is moore likely to be held a taking if the government action is:
a forced physical invasion of private property, or
an extraction of benefit for the good of the community rather than prevention of harm by the
property owner, or
a forced redistribution of bargained-for contractual rights from one party to the other rather than
a general regulatory program designed to respond to externalities caused by the property use.
A regulation is more likely to be held an exercise of the police power if the government action is:
a regulation of property use rather than a forced physical invasion, or
a limitation on property use designed to protect the community or to respond to externalities
caused by the owners use of the property (nuisance exception), or
designed to achieve an average reciprocity of advantage (those whose property interests are
adversely affected by the regulation also benefit from it by the concomitant regulation of others
property rights; ex: lose by having to go 55 mph, win by having safer roads).
causes a substantial diminution in value
Can Property be Taken by Regulation?
Who should bear the burden for the exercise of the states regulatory power in the public interest?
The taxpayers (compensate property owner) or the property owner (public doesnt share burden)
Penn Central Transportation Company v. City of New York
Facts: NY passed a Landmark Preservation Law to foster civic pride, enhance tourism, stimulate business, strengthen
economy, and give aesthetic pleasure. The law imposes a duty on the owner to keep the exterior features of the building in
good repair and to notify the Commission in advance of any proposal to alter the exterior architectural features. Grand Central
is owned by PCTC, who entered into a 50-year lease with UGP properties to allow UGP to construct a multistory office
building above Grand Central. UCP and PCTC applied to the Commission for permission (the plans satisfied zoning
ordinance), but the Commission denied their application.
Holding: No taking. The court said there were two main factors: the economic impact on the property owner (interference
with investment-backed expectations) and the character of the government action (physical invasion or regulation). Here there
has been no taking. The court held that NY didnt interfere with the airspace because the court focuses on the interference with
property as a whole, not in segments and they can construct above the terminal if it harmonizes with its character. Also,
diminution in property value is not enough to show a taking and the rights to build are transferable to other properties in the
area, so there is compensation.
Dissent: The law imposes a big cost with little compensation, no benefits. Such a huge loss should be spread out, not
burdened on one .
Pruneyard v. Robins
Facts: Pruneyard is a privately owned shopping center that has a non-discriminating policy to not permit any public
expressive activity that is not directly related to commercial purposes. Appellees are high school students who were peacefully
opposed to the UN resolution against Zionism. They sued to enjoin the mall from denying them access (taking their right to
free speech). The CA Supreme Court held that the students were entitled to conduct their activity
Holding: No taking. Affirmed. The test of a taking is whether the restriction on private property forces some to bear public
burdens, which should be borne by the public as a whole. Must look at the character of the government action, the economic
impact, and the interference with any investment-backed expectations. Here, there is nothing to suggest any economic impact
or burden.

Notes: Pruneyard doesnt overrule Lloyd or Logan Valley because those cases dealt with U.S. constitutional rights, but here
we have state constitutional rights thrown in that extend the U.S. right, but do not impede any other constitutional rights.
Lucas v. South Carolina Coastal Council
Facts: Lucas bought two lots in S.C. The law changed and he was not allowed to build the houses he planned to build, even
though there were houses adjacent to his property. Lucas sued saying that the prohibition on his right to use his property is a
taking without just compensation.
Holding by Scalia: This is a taking. The state can regulate harmful use, but must pay if they physically invade the land or
deny all economical or beneficial use of the land. Furthermore, the Court must look into what was part of the owners title to
begin with. If the regulation renders the property economically unviable and the use is not a nuisance under common law, then
the state must compensate (taking).
Concurrence by Kennedy: He modifies Scalias holding. The state should look at more than just whether it was a nuisance at
common law; they should look at the owners expectations. The means and ends of regulation must accord with reasonable
expectations.
Dissent by Blackmun: Hard to imagine that the property is valueless because it cant be built on. No problem entrusting the
legislature to articulate a serious public harm (Scalia has a big problem with it, all they would have to do it say its a harm and
then take it without paying).

What Constitutes Just Compensation?

Should owners be given fair market value or more?
Cannot get compensation for good-will of clientele because the business can relocate, only the
building is being taken (some states allow it if there was a particular tie to a location)
Cannot get costs of moving if house is being taken
Baltimore RR v. Fifth Baptist Church
Facts: RR built an engine house and machine shop next to the church in DC. The church claimed that the RR had lessened the
participation at worships and Sunday school.
Holding: The personal use should be taken into consideration. Judgment affirmed.
U.S. v. 564.54 Acres of Land
Facts: operates three nonprofit summer camps in Pennsylvania. The US wanted to condemn the land for a recreational
project. The US thinks they should only pay fair market value because its an objective valuation. The Camp says the specific
uses of the land should be taken into account because the value of the land is determined by how it would be used
Holding: When the market value is too hard to find or would be manifestly unjust, then other standards can be looked at.
Here, the fair market value was ascertainable and the use of it was not manifestly unjust: the unique need of the land is not
compensable and the benefit of the community should not be a factor because everything can be said to benefit the community.

What constitutes pubic use?

Hawaii Housing Authority v. Midkiff
Facts: Hawaii wanted to fix the problem of the land being in the hands of few. The legislature passed the Land Reform Act of
1967 to condemn residential tracts to transfer the ownership of existing leases. If 25 tenants or half of the land was up to be
transferred, then there was a hearing to decide if it was a public purpose. Then, compensation is set. Midkiff was in
negotiations, but they broke down, so he challenged the act as unconstitutional (taking was not for public use, but transferring
to private individuals).
Holding: When the legislatures purpose is legitimate and the means are not irrational, the court should not interfere with the
wisdom of the taking. The court will not substitute its judgment of what a public use is for that of the legislature unless the
judgment is totally out there.
Poletown Neighborhood v. City of Detroit
Facts: Detroit had a big economic crisis. GM is threatening to move from Detroit. Detroit is desperate and offers to find
some land for a new plant. GM tells them what kind of land. The city found the land and planned to give it to GM even
though there was a residential community on the land. Detroit claimed it was a taking for public use because the plant would
provide 6,000 jobs and millions in real estate and income tax revenues. Poletown alleges that the taking was for a private
purpose.

Holding: the benefit to the private interest is merely incidental, the public purpose is the primary beneficiary of the plant. The
legislatures decision of what is a public use should only be reviewed when it is abused

EASEMENTS
Modifying the landowners right to exclude and to use and enjoy the land
Introduction: The Power to Transfer and its Limits
Law of Servitudes: regulates use restrictions such as promises to use the land for a specific purpose
land use agreements that authorize a non-owner to enter property for a particular purpose
ex: affirmative easement to right of way across property
land use agreements that embody the property owners promise to do something or not to do
something on their own property
ex: negative easements, promise to maintain a fence
Types of Servitudes: (General Categories)
Profits (a prendre): rights to remove objects from someone elses property (timber, coal, etc.)
a type of affirmative easement
Licenses: revocable permission to enter to someone elses property (invite friends over, etc)
can be expressed or implied by the circumstances can be expressed or implied by the
circumstances
licenses are generally revocable at the will of the licensor (friend gets rowdy) and are
generally not transferable
Revocable Licenses: permission granted by the property owner to allow someone else to
enter her property temporarily and/or for a specific purpose
- no writing required, often implied by the circumstances
Irrevocable Licenses (easements by estoppel): where the licensor induces the licensee to
act in reasonable reliance on the license, or where the licensee reasonably relies on access
pursuant to a license, the licensor is estopped from revoking the license.
Easements: limited right to use or control the use of somebody elses property
generally irrevocable by grantor
transferable during like and upon death
Affirmative Easement: right to use, enter, or affirmatively do something on someone elses
land (ex: right of way)
Negative Easement: right to restrict or control someone elses property (right to limit the
number of stories on your neighbors house)
at common law, courts have limited the type of negative easements to several
kinds because they are not observable and therefore there is not sufficient notice:
- Easement to light and air
- Easement for lateral support
- Easement for flow of a stream
Terminology:
servient estate: property burdened by the easement
dominant estate: property benefited by the easement
appurtenant easement: those attached to land ownership and owned by whoever
owns the dominant estate

 easement in gross: those owned personally, where the benefit of the easement is
not attached to the land
Methods of Creation:
Express easements: created by an express agreement between parties in writing
Easements by estoppel
Implied easements (by prior use or necessity)
Prescriptive easements
Real Covenants: promise made by a landowner to use or not to use ones own land in a
particular way
Enforceable by an against succeeding owners of the benefited and burdened land
Strict rules for enforcement
Historical remedy: damages
difference from easements: covenants are used to create an affirmative duty to do
something on ones own land, where easements traditionally cannot be used to create such
an affirmative duty.
Equitable servitudes: promise made by a landowner to use or not to use ones own land in a
particular way
Enforceable by an against succeeding owners of the benefited and burdened land
Historical remedy: injunction
Creation of Easements
Express Easements: limited right to use or control the use of somebody elses property
Creation: easements must be in writing to be enforceable under the statute of frauds
the transfer of an easement is analogous to a sale of land (grant of an interest in real
property)
Run with the land: an easement runs with the land to burden future owners if it is in writing, the
original grantor intended the easement to run with the land, and subsequent owners of the servient
estate had notice of the easement at the time of purchase.
the easement does not have to be included in subsequent deeds
notice can be actual, constructive (deed in chain of title), or by inquiry
Effects Associates v. Cohen (1990)
Facts: The makers of the movie The Stuff used special effects film that was shot by Effects Associates, and refused to pay
the entire price because they were unhappy with the shots. Effects Associates brought a copyright infringement case based on
the fact that Cohen used the shots without a license enabling him to use the shots in question.
Holding: The Court does not agree, movie moguls cannot be excused from the Copyright law requirement for a writing for the
transfer of an exclusive license.
A non-exclusive license can be oral or implied by the circumstances- Cohen asserts that he is not the exclusive owner of the
footage he was granted a non-exclusive license to use the footage by the circumstances and the fact that he paid a large amount
for the footage.

Equity Jurisdiction
Legal remedies are generally money damages, while equitable relief is granted when damages are not
sufficient.
Equity Remedies are available when the remedies at law would be insufficient or inadequate.
This relief is used when a party is about to suffer injustice because he failed to meet one of the
requirements for relief at law- goes to the conscience of the court.
Maxims of Equity Adjudication:
Court does what conscience requires
Will not suffer a wrong without a remedy

 Requires diligence, clean hands, and good faith.

Delights to do complete justice, not by halves.

Easements by Estoppel (irrevocable licenses)

= an owner may be prevented from revoking a license if the licensee has been granted the right to invest
in improving the property or has been induced to act in reasonable reliance on the property.
doctrine of easement by estoppel: converts a revocable license into an irrevocable easement.
Holbrook v. Taylor (1976)
Facts: Holbrook allowed Taylor to use the road in constructing their house. In 1965 Holbrook decided that they wanted the
Taylors to buy the land that road went across, they declines and the Holbrooks put a bar across the road and closed it to the
Taylors. Taylors sue based on prescription and estoppel.
Holding: Easement by Prescription is denied because permission was given. For easement by estoppel: the Taylors had
permission to use the road, they improved the road, and the Holbrooks knew about their use. The Court holds that when you
have granted the right to use the road and have essentially allowed the parties to rely upon the license to make constructive
improvements, the license becomes irrevocable because of estoppel. And the license lasts for so long as a time as nature calls
for.

Constructive Trust
trust = a property arrangement in which an owner (settlor) transfers property to another person
(trustee) with instructions to manage the property for the benefit of a third party (beneficiary).
the trustee has legal title to the property
the beneficiary has equitable or beneficial title
usually created expressly by a trust document or will
constructive trust = court sometimes treats the property arrangement as if the grantor had created
a trust arrangement, regardless of the grantors intent
used when one party has been wrongfully deprived wither by mistake, fraud, or some
other breach of faith of confidence or some right, benefit, or title to the property
Rase: Ward owns the legal title to the improvements, but the beneficiary has the equitable
title to the improvements.
Rase v. Castle Mountains Ranch
Facts: Tavenner owned a ranch and cabin sites. Tavenner granted permission to some cabin owners to build the cabins on his
land but not to buy the land since he wanted to control the lake (since 1922). In 1963 he enters in license agreements with the
cabin owners. 1972 Ward acquires the ranch from Tavenner and terminates the license agreements and has the cabin owners
removed. The cabin owners sue to quiet the title in their cabins and for an easement to continue to use the land for their cabins.
Holding: At equity the court does what conscience requires (complete justice): The court crafts a remedy that concludes that
the cabin owners had no right in the land but the conduct of Tavenner creates a constructive trust and that trust is transferred as
an equitable lien on the property to Ward.

Implied Easements
= recognized in certain kinds of relationships despite absence of express contract to create an easement.
sometimes, they contradict the actual intent of the parties and are implied by law (public policy)
Easements by necessity: may be granted to the owner of a landlocked parcel over remaining lands
of the grantor to obtain access to the parcel
two policies: effectuate intent of parties and promote efficient utilization of the land
prevent land from being taken out of the market

 will not be recognized if it is clear that the grantor intended to sell and the grantor knew
she was buying a landlocked parcel
Easements implied from prior use: may be recognized when an owner divides her property and
sells one parcel, retaining the other for herself (Granite v. Manns).
Most easements by implication are rights of way
Three elements necessary for easements implied from prior use:
1. two parcels in question were previously owned by a common grantor
2. one parcel was previously used for the benefit of the other parcel in a way that was
visible and continuous
3. the use is reasonably necessary for enjoyment of the dominant estate
absolute necessity not required for easement implied from prior use, but is
required for easement by necessity.
Granite Properties v. Manns
Facts: owned three pieces of land originally and had a shopping center and apartment on two of them.. They sold the
middle piece of land to Manns. The driveway of the shopping center cut through Manns property. When Manns bought the
property, they knew the driveways were in use (inquiry notice), but found no easements in the chain of title. The Manns told
them they couldnt use the driveway. Granite sues for a prescriptive easement: implied easement by prior existing use.
Holding: Granite wins. Three elements of implied easement by prior existing use. On necessity, the court says there is an
inverse relationship between elements 2 and 3, so that the more pronounced a continuous and apparent use is, the less the
degree of necessity must be.
Finn v. Williams
Facts: The Finns got the land from the Williams and used to use roads south of their property to get to the highway. The new
Williams inherited the property. The southern roads were closed by the owners of the lands, and the only way the Finns could
get to the highway was through the Williams land. Williams refused to let the Finns use their road. The Finns were land
locked.
Holding: Easement of necessity exists here because the Finns had no other way off the land. There is an implied easement in
the first conveyance because there was no private way off the land other than by using the roads of others. Since the Williams
were the grantors of the property, the implied easement is found in their conveyance. Policy: parties cant create land-locked
parcels (waste of the land).

Prescriptive Easement
= limited right to use the property of another
Requirements: same as adverse possession (actual possession that is open and notorious, exclusive,
continuous, and adverse or hostile for the statutory period) except exclusivity not required for a
prescriptive easement and actual possession is replaced by actual use
affirmative easement = right to affirmatively do something with respect to someone elses property
right to walk through backyard
negative easement = right to prevent someone from doing something on their property
neighbor prevents you from building an additional story on your house.
analogous to the doctrine of adverse possession: except with easements you can only use them for
limited purposes and there are relaxed requirements
Easements Appurtenant v. Easements in Gross
Easement appurtenant: when the benefit runs with the land, it is treated as if it were attached to that
particular parcel of land and is automatically transferred when the dominant estate is transferred.
The easement cannot be transferred separately from the land.
Easement in gross: not attached to ownership of land, belongs personally to the grantee

 generally transferable: but personal easements are less likely to be transferable while commercial
easements are more likely to be transferable
non-exclusive: grantor has reserved the right to use the easement in conjunction with the grantee,
so the easement is nonapportionable.
exclusive: the grantor has no right to use the easement in conjunction with the grantee, so it is
apportionable.
Most common: a right of way for utility lines over property
How to decide between easement appurtenant and easement in gross:
intent of the grantor (language in conveyance)
if intent is ambiguous, look to surrounding circumstances and policy considerations
constructive preference for appurtenant easements (easements in gross create more uncertainty
about land use rights (can be owned by anyone) than appurtenant easements (owner must own
land nearby))
Green v. Lupo
Facts: Greens seek the enforcement of an agreement to grant an easement. The Greens once owned all of the land, but sold
some to the Lupos, north of their property. The Lupos agreed to grant the Greens an easement in exchange for a deed release.
The Greens are using their land for a mobile home park and some of the kids are using the easement for a motorcycle runway.
The Lupos are not happy and refused to formally grant the easement once they retained title.
Holding: The easement is appurtenant (anyone can use it). The intention is found in the construction of the language of the
instrument. An easement is not in gross when there is anything in the deed or the situation of the property which indicates that
it was intended to be appurtenant to the land retained by the grantor. The courts seek to find easements appurtenant.

Scope of Easements
= three issues arise in determining whether the owner of an easement is misusing it by going beyond the
scope of the activities contemplated by the grantor:
1. whether the use if of a kind contemplated by the grantor
a general right of way may be used for any reasonable purpose
2. whether the use constitutes an unreasonable burden on the servient estate not contemplated by
the grantor
3. whether the easement can be subdivided
exclusive: grantor has no right to use the easement in conjunction with grantee
apportionable
non-exclusive: grantor has reserved for herself the right to use the easement in
conjunction with the grantee
not apportionable
What happens when the dominant estate wants to subdivide?
Cox v. Glenbrook Company
Facts: Glenbrook (servient estate) is a seasonal resort that is known for being a peaceful, beautiful place. Quills estate sold
the property to Johnson, who sold it to Cox. Glenbrook had given a deed to Quill that included a right to use their roads to get
to the highway. Cox wants to make a residential community and they want to widen the road to allow more cars to pass.
Holding: The court held that the easement appurtenant could be subdivided. The road can be maintained, but not widened.
Glenbrook can relocate the way if they want. Cox cannot cause any burdens to Glenbrook.
Henley v. Continental Cablevision
Facts: is the trustee of the subdivision. s predecessor conveyed in 1922 an easement to Southwestern Bell and Union
Electric to construct, repair, operate and maintain its lines for telephone and electricity. In 1982, defendant had licenses from
both to enter on the easements and put in cable lines. The easements are undisputedly in gross (commercial).
Issue: whether the initial easements in gross can be transferred at all and if so, can they be apportioned?

Holding: The court held that the easement was exclusive and therefore apportionable. There is no indication that the trustees
intended to use the 5-foot strips for maintaining electric services. So, the trustees would obviously not convey a non-exclusive
easement. Also, the cable lines do not increase the burden on the and it is in the public interest to allow such extensions.

Termination
= easements last forever unless they are terminated:
by agreement: in writing
by their owner terms: sometimes they last only a certain time
by merger: when the holder of servient estate becomes owner of dominant estate
by abandonment: implied by the conduct of the owner of the easement
by adverse possession or prescription: by the owner of the servient estate or by third party
failure to re-record: according to marketable title acts in many states, failure to re-record leaves
the easement unprotected and a subsequent purchaser of servient estate may be able to buy the
property free of the burden of the easement
Easements Wrap-up
need a writing to have an express easement that is enforceable
there are many ways that the courts have relaxed this requirement to recognize easements that
were not created by a writing (implied easements [Granite], implied by necessity [Finn],
easements by prescription, and easement by estoppel [Holbrook])
appurtenant easements v. easements in gross
what happens when the dominant state is subdivided (Lupo, Cox)
can only transfer an appurtenant easement by transferring the land (it runs with the land)
look at intent of grantor to distinguish between these two easements and whether the easement
would be useful apart from ownership of land (in gross) or would only be valuable attached to the
land (appurtenant). There is a constructional preference in finding appurtenant easements.
What is the requirement for the burden of the easement to run with the land?
what happens when the servient estate is transferreddoes the burden of the easement run to the
new owner?
3 requirements:
the easement must be in writing
the grantor must have intended the easement to run with the land
the subsequent owners have to have had some type of notice of the easement at the time
of purchase

REAL COVENANTS AND EQUITABLE SERVITUDES

Modifying the landowners right to exclude and to use and enjoy the land
Basic Requirements and Concepts
Real Covenants
= enforceable via damages remedy
Real covenants were created to fix the complication of restricting land use with contract law.
5 Requirements (455-58):
must be in writing
included as part of a lease or a deed
party to be bound must have notice
actual, constructive, inquiry
parties must intend the covenant to be binding on successors
the subject matter of the covenant must touch and concern the land
Two part analysis:
1. The covenant must have something to do with the use of the land or be
connected with the enjoyment of the land
2. The covenant must affect the market value of the land (decrease the value of the
burdened land and increase the value of the benefited land)
generally, making the promisor do some physical thing in relation to the land is a promise
that touches and concerns the land.
promises that traditionally dont touch and concern the land:
i. promise to just pay money
ii. covenants restricting the type of business on the land
there must be privity of estate between the original parties and their successors
Why have a privity requirement?
- Agreements restricting the use of land hamper the transfer of the land, so we
require them to be counter-balanced by a benefit to the land
privity of estate: parties were in some sort of relationship with respect to the land.
iii. horizontal privity: relationship with respect to the land between original
covenanting parties
1. The parties must be in one of the following relationships:
buyer/seller relationship
lessor/lessee relationship
grantor/grantee of an appurtenant easement
2. The covenant must be contained in the documents creating these
relationships
iv. vertical privity: relationship with respect to the land between an original party
and his successor in interest (subsequent owner)
1. Party must transfer her full and entire property right in the burdened or
benefited parcel and cannot contain future rights in the land
2. For the vertical privity of the burden, there is a strict requirement. For
the vertical privity of the benefit, there is a relaxed requirement.
a. So, if S2 is the lessee and P2 is the owner, some courts may not
require the strict vertical privity for S1 and allow that action to
pass.

Equitable Servitudes
the same elements are required as for real covenants
EXCEPT, horizontal and vertical privities are not required
Relief available:
real covenants: damages
equitable servitudes: injunction (no need for privity)
Back to example of S1 and P1.

S1

sale of burdened parcel

P1

See handout on real covenants

S2

P2

Tulk v. Moxhay
Facts: Tulk sold a garden square and some houses to Elms with a covenant saying that Elms and his heirs must keep and
maintain the garden and area and not cover it with any buildings. Elms conveyed the land with no similar covenant to
Moxhay, who knew of the original covenant, but wanted to alter the character of the garden.
Holding: There is a writing, there is notice, intent to run (Elms and his heirs/assigns), and the covenant touched and concerned
the land (something physical in relation to the land). For privity of estate, there is not horizontal privity between Tulk and
Elms (in England it cant be buyer/seller). There is vertical privity because Elms did not retain any interest or right in the
property. The covenant does not run with the land, but the court held that it would inequitable to let Moxhay ruin the square
when he had notice.
Notes: A successor in interest can be held to the covenant even though the privity of estate requirement is not met.
Whitinsville Plaza v. Kotseas
Facts: K conveyed land to four people as trustees. The deed had many restrictions including an anti-competition covenant
running with the land. The trust sold the land to Plaza. Later, K leased a portion of his land to a store that competed with
Plaza. Plaza sought an injunction, a declaration, and damages from K and CVS.
Holding: The court long held that a covenant not to compete does not touch and concern the land. Citing Norcross, the court
said that such covenants do not affect the use or occupation of the land, but just increase the value by excluding a competitor.
Through other cases, Norcross was limited to cases where the only reason for the covenant was to eliminate competition. The
court held that the facts of the case showed that K probably received compensation and that freedom of competition induced
Trusts purchase. The court ultimately held that reasonable covenants against competition may be upheld when they facilitate
orderly and harmonious development for commercial use.

Subdivisions: implied reciprocal servitudes and third-party beneficiaries

When homeowners associations and residential subdivisions try to enforce covenants, there are problems
of notice and privity of estate.
hard to be on notice of a covenant in a neighboring deed huge burden to have to search the
deeds granted by the seller of their parcel relating to neighboring land (what if the seller owned 50
plots?)
for privity, its worse. Early buyers make promises to benefit the remaining land of the grantor,
but have problems enforcing covenants made by later buyers when there is not privity of estate or
privity of contract.
both of these problems are solved by implied reciprocal negative servitudes

Implied reciprocal negative servitudes: used for mutual enforcement of covenants in residential
subdivisions.
applies when an owner of real property subdivides it into lots and sells a substantial number of those lots
with restrictive covenants designed to further the owners general plan or scheme of development. Se
a further relaxing of the doctrine of real covenants
mutually enforceable against all owners if they were intended to be part of a common plan
need an original common owner/developer
needs to be part of a general plan/scheme
v. majority of lots restricted
vi. plat recorded (evidence of intent of developer)
vii. restriction in the last deed
viii. uniform compliance
ix. recording of declaration that the covenants are to be mutually enforceable
absence of common plan can be shown by some deeds being unrestricted and the
restrictions are not uniform
enforceable against defendant with notice
some courts say that a buyer without notice can be on inquiry notice if there is a pattern of
development that might suggest the existence of a common plan (Sanborn)
enforceable by any purchaser of a restricted lot in the common scheme/HOA because they have a
legitimate interest (hard to show for absentee developer)
presumption against continued enforcement by absentee developers who no longer own
property in the neighborhood (Restatement 2.6).
McQuade v. Wilcox (case of a sleazy developer)
Facts: sold the lots with restrictions for use as strictly residential purposes. They advertised the lots as residential and told
the new owners the same. The restrictions were imposed on all present and future owners of the property in the subdivision.
The didnt specifically restrict her own property, but restricted all the others and tells the new owners that the subdivision will
be solely residential. She sold her property to a real-estate developer (Jacob) who then sold it to a restaurant (Shelbourn
Company). Shelbourn claims they are not restricted and they had no notice of such
Holding: The touch and concern requirement is met because a covenant would affect the physical use of the land. There is no
writing restricting the lot to Shelbourn (but this requirement has been relaxed), unless the last sentence is stretched. The court
concludes that Shelbourn had no constructive notice because there were no restrictions, unless Shelbourn had the duty to search
the chain of title for neighboring lots. The negative easement placed by Wilcox on the other lots, put a mutual restriction on
her since she was the common owner, so her lot was restricted and there is constructive notice. The plat was good evidence of
the reciprocal negative easement that substituted the writing requirement.
Sanborn v. McLean
Facts: The subdivision in question was meant for residences, but some lots were sold as restricted and some were not.
McLeans own an unrestricted lot in a residential neighborhood. They want to build a gas station on the rear end of their lot and
had already begun construction. The is the owner of adjoining land and claims the proposed station is a nuisance and in
violation of the residential character of the neighborhood. Both and received their land from a common owner. The area
was platted as a residential area. The s property had a partially built house on it when they purchased the land.
Holding: There is a reciprocal negative easement where there is a common owner who divides their land and sells one part
with restrictions. The retained land then shares the restrictions and cannot do anything forbidden to the owner of the other
piece. This easement runs with the land.

Terminating Covenants and Equitable Servitudes

Changed conditions: covenants wont be enforced if the conditions have changed so drastically inside
the neighborhood restricted that enforcement will no longer be of substantial benefit to the dominant
estates. Can also apply to changed circumstances outside of the neighborhood.
used to prevent injunction
Relative Hardship doctrine: a covenant will not be enforced if the hardship to the owner of the servient
estate will be greater by a considerable magnitude than the benefit to the owner of the dominant estate
(Restatement 563).
used to prevent injunction
Equitable Defenses and Other Ways to Terminate Covenants
Acquiescence, abandonment, or unclean hands: toleration indicates an intent to abandon
Acquiescence: toleration of previous violations
Abandonment: toleration of violations by others
Unclean hands: violation of the covenant by the
Estoppel: owner of a dominant estate who tells the owner of a servient estate that she will not
enforce the covenant may be estopped if the servient estate relied on the promise
Laches: if the covenant has been ignored or breached for a substantial period of time (less than
necessary for prescription), the court may find reliance making enforcement unconscionable.
Marketable Title Acts: sometimes must re-record or they will terminate
Other ways:
Language in the covenants: sometimes terminated unless renewed
Merger: if burdened and benefited estates become owned by same person
Release: all parties agree in writing to terminate the covenants
Prescription: open and notorious violation of the covenant for statutory period
El Di, Inc. v. Town of Bethany Beach
Facts: Bethany Beach was started in 1900 by the DC Christian Missionary Society who wanted it to be a quiet beach
community. They put restrictive covenants in the deeds restricting the lots on the 180 acre piece of land to only residential,
single family use and did not permit alcohol to be sold on the lots. 1/3 of the lots were sold unrestricted. In 1909 Bethany
Beach was incorporated and the new area left only 15% of the town restricted. In the 1920s, commercial development started
on some of the restricted lands and now most of the commercial buildings are on previously restricted lots. In 1952, the Town
decided to zone the restricted lots for a commercial district. El Di purchased the Holiday House in 1969 and at that time
patrons could brown bag their own alcohol on the premises. Alcoholic beverages were being sold at nearby establishments. In
1982, El Di applied for a license from the state to sell alcohol and it was granted. The Town sued for an injunction.
Holding: Injunction denied. There has been a fundamental change in Bethany as evidenced by the unrestricted lots, the
amount of commercial activity on restricted lands, the decision to zone restricted property for a commercial district
(abandonment) and the acceptance of the brown bagging practice (acquiescence). Enforcement would not be a substantial
benefit.
Dissent: the conditions in Bethany had not changed to render the covenants unreasonable.

FUTURE INTERESTS
The System of Estates and Future Interests
Easements and Covenants: used to control WHAT IS DONE with real property in the future
remedy for violation: injunction or damages
Future Interests: used to control WHO WILL OWN real property in the future, directly or indirectly
remedy for violation: forfeiture of ownership of the property
present and future interests are created by sale, lease, will or trust
distinguished from each other by the different times at which they begin (future interests exist at
the moment they are created even though the future owner has no right to possess the property
until the happening of the triggering event)
Problems:
dead hand control: someone long gone controlling the property
- resolved by doctrines of changed conditions and undue hardship in the law of
covenants and equitable servitudes
- resolved by rule against restraints on alienation and the rule against
perpetuities in future interests (sometimes use doctrine of changed conditions)
hierarchy and equality: may concentrate ownership in the hands of certain groups at the
exclusion of others. It may also mess with the market and the distribution of wealth.
Fee Simple Interests: owner can choose who will own the property after death
Fee Simple (Absolute): right to possess land that extends indefinitely into the future. This is
property ownership without an associated future interest. The owner can sell it, give it away, leave
it in a will, etc. NO FUTURE INTEREST.
The most complete interest in property one can create.
words used to create: O to A, O to A and her heirs, O to A in fee simple (heirs dont get
any interest in the property from this language).
Defeasible Fees: present interests that terminate at the happening of a specific event, other than
death of current owner. 3 types.
When the future interest belongs to the grantor
Automatic transfer: future interest reverts back to grantor at the happening of the
event.
words used to create: so long as, while, during, until, unless
present interest = fee simple determinable
future interest = possibility of reverter
Transfer upon grantors assertion of property rights: grantor may choose to retain
for herself the right to decide, when the condition is violated, whether to retake the
property
words used to create: provided that, on condition, but if
present interest = fee simple subject to a condition subsequent
future interest = right of entry for condition broken (or power of term.)
When the future interest belongs to a third party
words used to create: until (or unless)then to; but ifthen to
present interest = fee simple subject to executory limitation
future interest = executory interest

Rule in Shelleys Case: where A has a life estate and the heirs have the remainder (to A and heirs), they
merge to form a fee simple.
Life Estates: An interest held for life of designated individual. The grantor has no right to determine who
will own the property after the death of the grantee.
words used to create: for life
Reversion: future interest when property reverts to grantor when owner dies
Remainder: future interest in the third party to obtain ownership when grantor dies
Contingent Remainders: remainder is contingent upon:
(1) the happening of an event that is not certain to happen, or
(2) will go to a person that cannot be ascertained at the time of the conveyance.
destroyed if not vested before preceding life estate ended or by merger
Vested Remainders: persons who are identifiable at the time of the initial conveyance and
there are no conditions or contingencies upon taking possession (other than death of life
estate holder)
absolutely vested remainder: not subject to change
vested remainder subject to open: may be divided among persons who will be
born in the future (this never seems to end)
vested remainder subject to divestment: may be destroyed by an event that occurs
after the original conveyance
Doctrine of Worthier Title: O gives life estate in A, remainder in Os heirs. A will get a life estate and O
will get a reversion; Os heirs will get nothing unless O dies within As lifetime, at which point they get
Os reversion.
Fee Tail: an estate whose purpose is to keep the property in a family dynasty
use reversions and remainders for when the blood lines run out
substantially abolished in the United States
Alienation: gives grantors the freedom to determine to whom and under what conditions they will part
with their property
Trust: grantor (settlor) conveys property to one person (trustee) for the benefit of a 3rd party (beneficiary)
declaration of trust: grantor appoints herself as grantee
deed of trust: legal title is transferred to another as trustee
inter vivos document: creates the trust during the settlors life rather than at death
Interpreting Conveyances
Problems: look for words of condition (fee simple determinable ) and words of duration (fee simple
subject to condition subsequent and fee simple subject to executory limitation)
Interpretation of conveyances
= Courts use two rules of interpretation:
Effectuating Grantors intent: the court should effectuate the grantors intent to the extent it can
be discerned from the ambiguous language in the deed or will or surrounding circumstances
Ambiguous intent: when the intent of the grantor is unclear, courts have a presumption against
finding a future interest in order to promote free use and alienability of property
future interests are disfavored because they tie up the land (dont want dead hand control)
and the grantor has the power to control the bargain.

 presumption against forfeitures: presume that the grantor gave away whatever interests he
had in the property and didnt retain any future interests
Hierarchy of interpretation (Forfeitures are disfavored):
covenant v. future interest = covenant is preferred because we avoid forfeiture
fee simple determinable v. fee simple subject to condition subsequent = the fee simple subject
to condition subsequent is preferred because the current interest is not automatically forfeited
because the grantor must exercise a right of reentry
life estate v. fee simple: fee simple is preferred
covenant v. statement of purpose (purpose not intended to be legally binding) = statement of
purpose is preferred because the mere expression that property is to be used for a particular
purpose shouldnt bind the land
Wood v. Board of County Commissioners of Fremont County
Facts: -appellants soled their land in 1948 by a warranty deed to the BCC. The deed stated that the purpose was to construct
and maintain a hospital in memorial to the men in the Armed Forces. BCC built and maintained a hospital until 1983, but then
moved it to a new facility and put the land up for sale in 1984. contends that the deed was a fee simple determinable or a fee
simple subject to a condition subsequent, which meant that if the land was not used for a hospital it would revert back to them.
Holding: The court reviewed the deed to determine the intent of the parties from the plain language in it. For a fee simple
determinable, according to Wyoming statute, the language of special limitation must clearly state the particular circumstances
under which the estate conveyed might expire. Indicating a special purpose is not sufficient. The deed does not clearly state
that the estate will expire if not used as a hospital. For a fee simple subject to a condition subsequent, the language must also
state the grantors intent to create a discretionary power to terminate the estate he conveys. They are strictly construed. The
deed does not clearly state an intent to retain discretionary power.
Forsgren v. Sollie
Facts: conveyed land to who planned to build a residence to be used as a church. Sollie never did anything with the land
and left the state a few years later. Some of the property was sold for taxes. reentered the property to mow the weeds, do
some fencing and pay taxes. LeFleur purchased the land at a tax sale. They paid some taxes and found Sollie who quitclaimed his interest in the land to . poured some concrete for footings to a building and the knocked it down. The then
sued.
Holding: This is a fee simple subject to condition subsequent and since no time of performance was specified, it must be done
in a reasonable time. The language need only express an intent to make the estate conditional, the reentry clause is not
necessary. If there is clear intent (on condition that), there is not need for express language about the reentry clause. There are
four factors that favor the district courts conclusion: (1) language of the instrument, (2) the nature of the event specified and
the importance to grantor, (3) amount of consideration paid in proportion to value of estate, (4) facts showing grantors intent to
benefit the adjacent land from the restriction. There is a policy of requiring the property to be put to the stated use in a
reasonable time or be freed from restriction by reverting to grantor. Here, the intent of the grantor is evident. The on the
condition that language obviously goes to the residence restriction because there would be no need for it in reference to the
fence or the survey.
Dissent: The absence of the reentry clause and the separation of the sentence about the residence shows that there was no clear
intent. There is no language to suggest that a house or church was required. This is a case where there was a stated purpose,
but not a special restriction allowing reversion if violated. Need to know more about intent of grantor. They have problem
with the majoritys finding of an affirmative duty to build as opposed to a restriction on what is built if anything.
Notes: Nunziato thinks the majority is making too many leaps

Public Policy Limitations on the Use of Estates and Future Interests

Rules Against Unreasonable Restraints on Alienation

Restraints on Alienation
= covenants or conditions that restrict the ability of the owner of real property to sell or give away the
property. There are three types:
disabling restraints: grantor directly forbids any transfer of the property by the grantee and any
attempted transfer is ineffective
eyed with the most suspicion by the court
promissory restraints: O conveys to A and A promises not to transfer the property. Attempted
transfer breaches a covenant.
The remedy sought would be money damages for breach of contract.
forfeiture restraints: if violated, requires that the property is forfeited from the present owner to
a future interest holder
partial v. full restraints on alienation
full: deemed void by the court
partial: more likely to be upheld than total restraints
restrain only for a limited period of time
limits transfer to certain people
restraints that require the approval of the seller or initial grantor
restraints that grant a right of first refusal to certain groups
- right to purchase the property in preference to anyone else if pay fair market value
or match any offers made by third parties
if it is not on a fee simple absolute, it is more likely to be upheld
Void if unreasonable
a modern test that says that restraints are only void if they are unreasonable (Horse Pond)
Policies for presumption against restraints on alienation:
promote dispersal of ownership of property (preventing concentration)
encouraging individual autonomy of the grantee
promotes social utility by allowing the land to be transferred to its highest value use
Riste v. Eastern Washington Bible Camp, Inc
Facts: EWBC owns land off of Silver Lake. The land was subdivided and sold to people who agreed to follow the beliefs of
the Assembly of God Church. Both the sales contract and the deed contained restrictions: no building on Sunday, no conduct
in conflict with principles of church, not sold w/out approval of EWBC. Riste attempted to sell the property contrary to the
restrictions and then sued for a declaration that they were invalid. EWBC wants the court to undo any transfer that Riste would
make (partial disabling restraint: requires approval of EWBC).
Holding: Both restrictions are against Washington statutes and public policy. The restriction on selling is a direct restraint on
the alienation of land and is void as repugnant to the nature of an estate in fee (against public policy). The provision against
conduct is also invalid because it refers to a system of religious beliefs and such a restriction is also against a Washington
statute.

Hankins v. Matthews
Facts: A.A. Hankins died leaving a will in 1952. The will said that he left all of his property to his wife Sarah for her natural
life (life estate). Then he gave his nephew all of the land at the death of Sarah (vested remainder). He put restrictions on his
nephew saying he had to keep it for 10 years before selling (vested remainder subject to divestment). If he didnt, the land was
supposed to revert back to the heirs of A.A. Hankins (). Sarah died and left all of her land (after paying off her debts) to the
nephew. He got the land and before 10 years was up sold it to the s. A.A.s heirs at law are suing Matthews for the land.
Holding: preventing alienation is repugnant to the estate and is void. Even for a limited time, alienation of an estate if fee is
contrary to public policy. Decedent cannot divest Jim of rights of ownership in fee simple absolute (even though a vested
remainder) and the attempt to take them away even for a limited time is not recognized by law.

Notes: example of a partial forfeiture restraint, but the court called it a full restraint

25-acre tract
30-acre tract

A.A.

Sarah

Sarah

Jim

Jim

Matthews

A.A.
Sarah
Jim

Horse Pond Fish & Game Club, Inc. v. Cormier

Facts: HP was organized and incorporated in 1945. They obtained title by deed with no restrictions of the Horse Pond
property in 1954. In 1958, the conveyed the property to two of its members, who then conveyed it back on the same day,
with restrictions (need a 100% vote to alienate unless the club is dissolved). In 1987, the registered as a charitable
corporation. In 1988, they wanted to swap land for the Hollis property because it would be better for hunting and fishing and
they would get 150,000. voted against it and the seeks a declaration that the restriction is void.
Holding: Restrictions on alienation of land must be reasonable. Reasonableness doesnt apply when the property is a gift to a
charitable corporation. Even if it is a charitable corporation, restrictions on alienation may not be permitted if the sale is
necessary or it would be in the best interests of the charity. Remanded to decide if is a charitable entity and if the restraint on
alienation is valid.
Notes: Self paternalization: when an entity puts restrictions on themselves for time T2 now at time T1. This is to prevent them
from doing something bad in the future.
Are there reasons for the policy allowing restrictions on alienation on charities?
encourage gifts to charities
want the property to continue to be used as a charity
Roper v. Edwards
Facts: s grandmother died in 1986. Before she died she had a settlement agreement with over a 136 acre tract of land.
The agreement gave a fee simple absolute to the with a restriction that one acre not be sold or encumbered at any time prior
to the grandmothers death. When the grandma died the will devised the one acre tract to the . The demanded the tract but
the refused to turn it over.
Holding: The court held that the had no legal duty to give the land to the because a disabling restriction on the alienation
of land in a fee simple absolute is void. However, the court held that the has a remedy in constructive trust.
constructive trust: a duty imposed by the courts to prevent the unjust enrichment of the who acquired the property
through fraud, breach of duty or some other circumstances making it inequitable for him to retain it.
Applying constructive trust is like requiring specific performance. Permitting the to keep the land and refusing to perform
according to the will as promised would be unjust enrichment and would be against good conscience. Dont need actual fraud.
Notes: The granddaughter is the constructive beneficiary and Roper was the constructive trustee

Intellectual Property and Alienability

First sale doctrine: once a holder of intellectual property consents to the sale of copies of his work, he
may not thereafter exercise the distribution right with respect to such copies.
This applies to copyright, patent, trademark law, and right of publicity.
109 of Copyright law: the person who legally gets a copy, can sell or dispose of as she wishes
Bobbs-Merrill Co. v. Isidor Straus
Facts: is the owner of a copyright on The Castaway, obtained in 1804. Printed below the copyright is a notice that said
the book shall be sold for 1$ and that any dealer cannot sell it for less. bought copies of the book and knew it was
copyrighted and knew of the notice. No one was required to observe the restrictions contractually. The continually sold the
book for 89 cents without consent of .
Holding: Patent law is different from copyright law: the laws pertaining to the former cannot be applied to the latter. This is a
statutory determination because common law rights are lost when a work is published in print. There is no right in copyright

law that the author can control all future purchases. The right to vend was exercised when the author sold the initial copies of
the book.
Notes: consider s view as saying that he has a restriction that runs with the property (book). The court says that the holding
may be different in lieu of a contractual obligation.
for the contractual terms to be binding, would need assent, need to give consideration, etc.
resale price fixing may be an anti-trust violation or something (per se violation of Sherman Act)

Right of publicity: generally violated when a appropriates without consent that persons name or
likeness or other aspects of their persona to advertise s business, or product, or for some other
commercial purpose.
Allison v. Vintage Sports Plaques
Facts: Both have licensing agreements that allow companies to use their likeness in exchange for royalties. VSP purchases
trading cards from licensed manufacturers and distributors. They mount the cards on a clock or plaque with a nameplate. They
mark each as limited edition or authentic collectible. They dont pay royalties. filed suit for infringement of their right
of publicity.
Holding: The court relates the right of publicity to the right of privacy. Alabama law allows a cause of action for invasion of
privacy when uses s likeness without consent for commercial purposes.
Some of the states that have recognized the right of publicity have used the first sale doctrine. Copyright law does not just
protect the tangible, but also expressions. Following s argument would grant a monopoly to celebrities over their identities:
harsh effect on trading car market. Ruling that first sale doctrine limits the right of publicity would not have bad effects: give
celebrity complete control over unauthorized use of name and image and their would still enjoy the right to license in the first
instance.

Racial Discrimination
Racially Restrictive Covenants
limits the sale, lease, or occupancy of real property to members of a particular race
NOW, they are unenforceable under constitutional, statutory, and common law.
Big case: Shelly v. Kramer: racially restrictive covenants are unconstitutional because judicial
enforcement of such covenants is equal to state action (violates 14th)
Review to see if the restriction would stand outside of the violation of the 14th:
real covenants: must be writing, notice, intent to run, touch and concern, and privity of estate
equitable servitudes: same as above, only get injunction, no need for privity
implied equitable servitudes: common plan, common owner, notice
Shelley v. Kraemer
Facts: in 1911, 30/39 owners of property in a district in Missouri signed a restrictive covenant saying that for 50 years the
properties are not to be occupied by any non-white person, and in particular excluding black people. In 1945, the Shelley
family bought property from the Fitzgeralds and was not aware of the covenant. Shortly after, some of the owners brought suit
to have their property taken away in violation of the covenant.
Holding: The restrictive covenant denied the equal protection guaranteed by the 14th. The court first looked at the
agreement and the 14th and decided that the agreement was on its face against the purpose of the 14th. The court noted that
although this case involved no state actor, it did involve the judicial enforcement by state courts of the restrictive covenants.
The court held that judicial action bears the mark of state action and that it is not immunized from the 14 thcourts must
enforce it. The action of the Missouri Supreme Court denied the Shelleys equal protection and is equal to state action.
Notes: this could be considered a restrictive covenant or a partial restraint on alienation

Relations between Owners of Successive Interests (waste cases)

What does the life tenant have to do to fulfill the obligation as a trustee and fulfill duty to remaindermen?
Life tenants Duty:
fiduciary relation to remaindermen
cannot injure or dispose of the property
duty to keep the property subject to the life estate in repair
Waste: implies neglect and misconduct, but not ordinary depreciation
voluntary: commission of a deliberate or voluntary destructive act
ameliorating waste: change by life tenant that increases value of the property but is
inconsistent with intent of the grantor
permissive: failure of tenant to use the ordinary care of a prudent man
Defense to Waste: laches or estoppel
laches: negative result of a failure to act
estoppel: affirmative act on the part of some party
Delay of time that works at the disadvantage of the other party
Moore v. Philips
Facts: Mr. Brannan died in 1962 and left his wife a life estate in his farmland and farmhouse, with remainder interests in
Dorothy Moore (daughter) and Kent Reinhardt (grandson). Mrs. B died in 1974, leaving the property to others. D. Moore sued
on a theory of waste (neglect) to recover damages for the deterioration of the farmhouse. The executrix of Mrs. Bs estate
defended using laches and estoppel and some others that were rejected ( knew about deterioration and waited until her death
to prevent her from defending the claim).
Holding: Mrs. B had a fiduciary duty to her daughter and K. Reinhardt to keep the estate in repair. Waste can be permissive
(fail to use ordinary care to preserve estate). In order for estoppel or laches to be a valid defense, the delay in bringing suit
must work at the disadvantage of the other party. The court found that the evidence clearly showed permissive waste and that
the was not estopped because most of the damage occurred in the last 2 or 3 years and she had good reason not to sue in her
moms lifetime and there is nothing Mrs. B could have said to deny the waste.
Baker v. Weedon
Facts: John Weedon was married 3 times and had some kids. After the first 2 marriages he buys some property with a farm.
He then marries his 3rd wife Anna and she helps a lot with the farm. In his will, he leaves all his property to his 3rd wife, and
then upon her death he gives it to her children if she has any and then to his grandchildren (skips his daughters because they
were estranged). John died and Anna never had any kids. Anna stopped working on the farm in 1955 because of her age and
she couldnt maintain the costs of the farm. The State wants a right of way and asks the remaindermen to build the right of
way. The grandson Henry settles the deal and splits it between the 3 kids and Anna. Anna now wants more money because the
property is worth a lot for commercial purposes and the kids want to wait for the property value to go up.
Holding: The court has the power to create a judicially created trust and order the sale of the land. There must be necessity
before there is a judicial sale. Must look at deterioration or waste of the property and also the best interests of the parties. The
Court rules that the best interests of the parties would not be met by a sale right now because of the financial loss to the
remaindermen, but remands and says the lower court may determine that a part of the land be sold to help out Anna.

RULE AGAINST PERPETUITIES

Another limit on future interests and restraints on alienability
Policy: limiting dead hand control
Purpose: limit the ability of property owners to create future interests that will come into effect too far in
the future
Traditional Rule: No interest is good unless it must vest, if at all, no later than 21 years after the death of
some life in being at the creation of the interest
goal: to determine whether there is any possibility at all that the executory interest or contingent
remainder will vest more than 21 years after the death of any person alive at the creation of the interest
creation of interest:
by conveyance (sale) = at the moment of the sale
in a will = at the moment the testator dies
in a trust = at the moment the trust document is signed
x. if irrevocable: when document is signed and trust is created
xi. if revocable: moment the trust becomes irrevocable
vest:
executory interest: moment the contingency occurs (at that moment the future interest
become possessory)
contingent remainder: when the contingency disappears (regardless of whether the
remainder becomes possessory at that moment)
lives in being: focus on the people named in the conveyance or intervening generations
need to find a determining life: someone within whose lifetime (or 21 years after) the
future interest is certain to vest if it ever vests. Those lives within which (or within 21
years of which) the contingency will be resolved.
- If the determining life is one in being at the creation of the interest, it is a
validating life.
corporations are not lives in being, so the perpetuities period is just 21 years
RAP: places some limits on the ability of current owners to create future interests
policy: to promote the free transfer of property in the marketplace
balance: rights of property owners to determine who will own their property in the future and the
rights of current owners to use their land as they wish
subject to RAP: the interest must be tested to see if it complies with the rule, if so, its good
Interest subject to RAP
Executory interests: a fee simple where the future interest belongs to a third party
words used to create: until (or unless)then to; but ifthen to, so long asthen to
can use words of duration or condition
Contingent Remainders: a future interest in a third party following a life estate that is contingent upon
the happening of an event not certain to happen or a person that cannot be ascertained at the time of the
conveyance
Vested Remainders Subject to Open: a future interest in a third party following a life estate that may
be divided among persons who will be born in the future.
Options to Purchase: right to buy property for a stated price at some point in the future
Rights of First Refusal (preemptive rights): right to purchase property whenever the current owner
decides to sell (purchase at market valuation not to RAP because they dont impede alienability)

Voice of the RAP: I will not even let you create a contingent-type future interest unless you can prove to
me from the start when that interest is created that the uncertainty inherent in the interest will last for a
limited time only. If you cannot prove that, I will strike out that interest from the conveyance.
Applying the RAP:
1. Identify the future interests of the parties
2. Determine whether the future interests are contingent remainders, executory interests, or vested
remainders subject to open then state the contingency
3. Determine whether the contingency is a personal contingency or an administrative
contingency
personal: birth, death, life, achievements, etc.
administrative: unrelated to a person or group (residential purposes)
4. If personal, find all the determining lives and check to find a validating life.
5. If personal without a validating life or administrative: determine whether the resolution of the
contingency is certain within 21 years
When striking out a violation of the RAP: use default rule of filling gaps with future interest in grantor
Common Pitfall Cases
Executory interests following defeasible fees
if it has no limit on the time which it must vest, it violates the RAP and is stricken
Age contingency beyond age 21 in open class
a gift to an open class conditioned upon the members surviving beyond 21 violates RAP
The Fertile Octogenarian
a woman is conclusively presumed to be capable of bearing children regardless of age
The Unborn Widow or Widower
you dont know who a persons widow is until they die, so the person might remarry to someone
not alive at the time the interest was created and then live 21 years after the death of all.
The Administrative Contingency
a gift that is conditioned on an administrative contingency (admission to probate) violates RAP
Options and Rights of First Refusal
A right of first refusal is treated as an executory interest and is void if it is structured so that it
might be exercised later than the end of the Rules period
Modern Modifications
Wait and See or Second Look test: the courts will not hold that a future interest violates the
rule until the perpetuities period has passed and they are certain that the future interest has not
vested within that period.
EX: O to A so long as used for residential purposes, then to B. Most courts will say
that it is possible that the property will be used for residential purposes forever, so the
interest in B is void. Under wait and see test, the court will wait until 21 years after the
deaths of all parties (O, A, and B) and see what happens. If still being used for residential
purposes after the 21 years, then the future interest in B is destroyed and As heirs get the
property.
Equitable Reform or Cy Pres doctrine: the court will reduce the age of contingency to 21 in
order to validate the future interest.
EX: it is possible that under O to A for life, then to the first child of B to attain 25 years
of age that O, A, and B die and one of Bs children reach 25 more than 21 years after the
death of B (child that is 1-3 at time of Bs death).

Statutory Modifications
Some states have passed statutes that cut off interest in the grantor following defeasible fees if
the condition does not occur within a stated time period after the initial conveyance.
Marketable Title Acts: some states require that future interests be re-recorded periodically in the
local registry of deeds (typically every 30-40 years) to remain valid and enforceable.
Uniform Statutory Rule Against Perpetuities: half the states validate future interests that would
otherwise be void under RAP if the interest vests at any time within 90 years of the date of its
creation (wait and see test limited to 90 years)
Central Delaware County Authority v. Greyhound Corp.
Facts: conveyed two parcels of land to in 1941 and 1950. The deeds conveyed a fee simple interest subject to a restrictive
covenant. The restriction said that the property must be used for public purposes. used the land for a sewage treatment plant
until 1980, then the property was not used, and in 1983 the sued to quiet title to the land alleging that the deeds restriction
violated the rule of perpetuities. The trial court said that the deeds didnt violate the rule and were not unreasonable because
they were fee simples subject to condition subsequent (not subject to RAP). The Superior Court reversed saying that they were
an option to purchase, but didnt violate public policy.
Holding: According to the Restatement On Property, when there is a choice, the option to purchase is preferred over the
possibility of reverter (favoring those that bring the restriction within the ambit of the RAP). Although a restriction that is
contractual doesnt violate the RAP, this restriction impressed specific land and was not purely contractual. A restriction that
impresses specific land violates public policy.
Texaco Refining and Marketing v. Samowitz (skipped)
Facts: In 1964, the and the predecessor to the signed a lease for 15 years, subject to renewal for 3 additional 5-year
periods. The used the option to renew twice. The lease gave the the exclusive option to purchase the land at any time
during the lease or an extension thereof for 125,000. In 1987, during the second renewal, the gave notification of its intent
to exercise its option to purchase. The refused to transfer the property.
Issue: Whether options in long-term leases are subject to the RAP.
Holding: No reason offered why it should. Long-term leases are consistent with the policy objectives of the RAP because it
stimulates improvement on the property and renders it more valuable.
Cambridge Co. v. East Slope Investment Corp.
Facts: Tenmile condos are subject to the condo declaration which creates a right of preemption: first right to purchase, upon
the same conditions offered by a third party buyer, any other unit offered for sale. The conditions run with the land and are
binding on all future condo owners. East Slope owned a condo and wanted to sell it to the Burgetts. Cambridge matched the
Burgetts price and gave a deposit. East Slope sold it to the Burgetts anyway. Cambridge sued ES and the Burgetts.
Holding: The Court held that a right of preemption is traditionally subject to the RAP because it could be exercised more than
21 years beyond the right of all lives in being relevant to the condo declaration. The court rules, however, that the RAP
shouldnt be applied mechanically when its purposes wont be served. This exception is there for options to purchase that
encourage the lessee to improve the property. Since the title is freely available to the full market price here, there is no fear of
hurting the market value of the land and the owners wont be discouraged from improving the property. Also, it is not difficult
to find the holder of the preemptive right in this case.

CONCURRENT OWNERSHIP
Co-ownership
Tenancy in Common:
the default for co-ownership of property
each co-owner has the right to possess an undivided interest in the entire parcel
can have unequal interests in the parcel (fractional ownership)
relevant for proceeds upon sale
can convey your interests as you wish
no right of survivorship, interest can be transferred via a will
Joint tenancy:
joint tenants have a right of survivorship
right to come into ownership of the co-owners interest upon death (lost interest at death,
cannot devise to someone else
this is severed by transferring interest (severs unity of time and title) or conveying the
interest to a straw person
A can get out of joint tenancy A,B,C by conveying to someone else and then have them
convey back (A has 1/3 interest as tenant in common, B and C have joint tenancy of 2/3).
four unities: time, title (same instrument), interest (equal share), possession (right to possess the
entire parcel)
Tenancy in the Entirety
must be legally married
interest cannot be transferred or encumbered without consent (absent divorce proceedings)
right of survivorship cannot be unilaterally destroyed
cannot be subject to partition
Partition
can ask the court to divide the property, or sell the property and divide the proceeds
voluntary partition: agreement by the parties
husband and wife cannot sue for partition unless they divorce
Swartzbaugh v. Sampson (and Swartzbaugh)
Facts: and are married. They owned 60 acres of farmland planted for walnuts as joint tenants. wanted to lease to a
boxing pavilion. objected and said she wouldnt join the lease. s signed three leases together, with s name not appearing
on any. was injured. She sued shortly after to cancel the leases.
Holding: A joint tenant can make a lease, but it will only bind his or her share. Sampson now has the rights that Swartzbaugh
had. The lease cannot bind . The leases are valid. Joint tenant has the right unilaterally to lease out the property, but has the
duty to the other party to share in the proceeds.
Tenhet v. Boswell: A lease doesnt destroy the four unities of the joint tenancy. The lessee must realize he is leasing from a
joint tenant and that the lease of the joint tenancy expires when the lessor dies.

Can creditors of one spouse attach property of both spouses to satisfy sole spouses debts?
courts are split on this, some say no (like the case below)

Sawada v. Endo
Facts: Mr. Endo was in an accident with the Sawadas. They both sued separately for damages and won. Before the judgment,
Endos jointly conveyed their property to their sons. The Sawadas couldnt get satisfaction of their debt, so they sue to attack
the property through the creditors.
Issue: Ct can rescind the conveyance if its fraudulent (need to determine first if Sawadas could recover against property when
just suing one spouse).
Holding: Neither husband or wife has a separate divisible interest in the property held by the entirety. The court looked at the
date of the conveyance; here the transfer was not fraudulent because it was before the judgment. The court wants to protect the
legal unity of marriage and there is a shortage of fee simple single-family houses in Hawaii.
Dissent: both interests should be subject to unilateral alienability.

Co-ownership of Intellectual Property Joint Authorship

Thompson v. Larson
Facts: Larson and Aronson started writing the play Rent. Aronson dropped out (settlement that Larson would be sole author
but Aronson would be credited). Larson kept developing the play. He was urged to revamp the storyline with a bookwriter, but
strongly rejected the idea. He finally agreed to work with Thompson, who was paid a fee. They worked extensively together.
The new version was a big transformation. He renewed his contract with NYTW with himself as the sole author. After final
dress rehearsal, he died. Show was a great success. Thompson sought compensation. She asked his estate for a percentage.
Negotiations failed and she sued.
Holding: Must show collaboration (intent to be co-authors) and that contribution is independently copyrightable. Here, there
was no intent by Larson to make Thompson a co-author.

Condos and Coops

Condominiums
each unit owned in fee simple (financed independently) and is responsible for property tax
common areas are owned by all the unit owners as tenants in common
all units owners make up the condo association
condos are created by filing a declaration with the recording office
allows condo association to pass by-laws or impose restrictive covenants, established
fees, voting rules (acts like a constitution)
treat it like a real covenant (probably satisfies writing, notice requirement, intent to run,
but still need to look at touch and concern as well as )
regulated by state condo statutes (state statute can override the declaration)
Developer: owns all units initially, so before are sold, he has a lot of power to make policy
creates management contracts
1980 federal law: condo association can terminate without penalty management contracts
of more than 3 years entered into while the developer had majority control
Cooperatives
the entire building is owned by a single non-profit cooperative cooperation
individuals buy shares in the corporation and then lease their units from the corporation
the entire coop is financed by one mortgage obtained by the corporation
if one owner doesnt make payment, the others must make up the difference or default
Restrictions on Leasing: how do we impose check on the condo associations power?
Breen v. Plaza Towers Association
Facts: B purchases a condo and there were no restrictions at the time about leasing. There was a provision in the declaration
that it could be amended. 5 years later the association amended the declaration and said that leasing was prohibited except
under specific circumstances. The amendment was not recorded. B asked for permission to lease and it was denied. B sued
and asked for summary judgment. That same day, the association recorded the restrictions.

Holding: Notice of restrictions must be given prior to purchase of the condo and must be recorded. Restrictions that affect
common areas can be modified after purchase.
OBuck v. Cottonwood Village Condo. Assoc.
Facts: O purchased a condo. The unit was prepared for TV and cable (needed antenna for tv), which was important to them
because they had 4 tvs. The condo had a serious roof problem and in order to fix it all the antennas had to be removed from the
roof. The association voted to keep the antennas off the roof because of the damage they causes and instead decided to make
cable available as an alternative. O filed a complaint.
Holding: Here, the declaration gave the association the authority to do what it did. Must look to see if the declaration is
reasonable. The condo owner sacrifices some freedom and rights in buying a condo.
If there were a civil liberty at issue, this would be a different case. It is necessary to balance the importance of the declaration
rules objective against the importance of the interest infringed upon. In a case of civil liberties, there would need to be more
than reasonableness in the declaration.

SPLITTING RIGHT OF POSSESSION: RENTAL HOUSING

LEASEHOLD ESTATES: landlord transfers property to a tenant
Tendency of the courts to treat these as contractual relationships with concern for unequal
bargaining power between the parties
Residential tenancy: involve renting property for the purpose of establishing a home
Commercial tenancy: involve any non-residential use
Categories of Tenancies
Term of Years: lasts for a specified period of time as determined by the parties
ends automatically at agreed time or upon a condition
if for more than one year, it must be in writing (statute of frauds)
future interest of landlord is reversion
future interest remainder (if owner says property will shift to 3rd party at end of lease)
death does not terminate
Periodic tenancy: renews automatically at specified periods unless either party terminates (monthly)
notice is required to terminate
death does not terminate
Tenancy at Will: just like a periodic tenancy but it can be ended without notice
many states have required notice anyway (so its pretty much abolished now)
death terminates
Tenancy at sufferance: where the (holdover) tenant once rightfully in possession wrongfully stays after
the lease has terminated (usually dispute about termination)
different from trespasser, cant use self help, must use an eviction proceeding
Oral tenancies: as long as it is periodic for one year or less it will be upheld (statute of frauds bars oral
periodic tenancies of greater than one year).

Duty of Tenant Remedy for Landlord

Landlords Rights:
1. receive agreed-upon rent
2. have to premises not damaged
3. regain possession at end of lease (reversion)
WHEN TENANT REFUSES TO LEAVE
Landlords Remedies:
1. sue for possession or back rent (ejectment proceeding)
a. tenant defense: implied warranty of habitability, retaliatory eviction, discrimination
2. holdover tenants: accept a new tenancy relationship or sue for possession
3. self-help: the landlord can take action to evict the tenant (change locks)
a. states are split on self-help some require eviction through court proceedings
4. summary process: allow for fast judicial determination of right to possession
a. limited defenses that can be asserted by the tenant to keep the proceeding fast
b. some are less summary now because of more tenant defenses being allowed
Berg v. Wiley
Facts: W let his building for use as a restaurant. The agreement required that no changes be made in the structure without
permission and that the tenant must operate the restaurant in a lawful manner. W reserved the right to retake the property upon
breach. B took assignment of the lease from a prior lessee and operated a restaurant. She continually remodeled without
permission and was in violation of some health codes. W gave her 2 weeks notice to fix the problems, but she kept running the
restaurant. With a few days left, she shut down the restaurant and was there with some friends. W was spying and thought she
was tearing down the wall. When B was gone he changed the locks and she was locked out. She sued.
Holding: Landlord cannot use self-help with a holdover tenant (reverses common law) because it has the potential to lead to
violence and there are satisfactory summary judicial remedies (modern doctrine).
UCITA electronic self help (uniform computer information transactions act)
sets default terms for software licensors and licensees
Cant use self help unless the licensee agrees to the license as well as the specific provision for the use of self-help and the
licensor gives notice of use of self-help and the nature of the breach they are using for (this can be done with another click
here icon and notice by email).
licensee has remedies for direct and incidental damages by wrongful use of electronic self-help
policy: problem of violence is not an issue, but still maybe the licensor shouldnt be his own judge and jury.

WHEN TENANT LEAVES REMEDIES FOR LANDLORD

common law treated a lease as a conveyance of property, not an ongoing contractual relationship.
the tenant had no remedy under this relationship
leases treated as contractual obligations gives the tenant more rights (implied habitability)
Landlords Remedies:
Accept tenants surrender
agree to the implied offer to end the lease
tenant is not legally obligated to pay future rent
can still sue for back rent, sue immediately for breach damages (contract rent - market rent +
costs of searching for new tenant).
Re-let on the tenants account
not agree to the surrender, but re-let the apartment to someone else

 this is different from acceptance because we are looking at actual new rent received instead of
market price
tenant is liable for damages for breach and future rent (if replacement found, then the difference
in new contract price and old contract price)
difficulty in determining if landlord has rejected the surrender (if it is found that he accepted, and
then he let out the place to a new tenant, who also breaches, he cant recover from the original
tenant anymore)
Wait and sue for rent at the end of the lease term versus mitigating damages
landlord can do nothing and not look for a new tenant (common law its not the landlords
business what the tenant does with the property for the lease term).
some states require the landlord to mitigate damages based on contractual agreement (more the
trend now)
arguments against having to mitigate: burden to have to look for a new tenant when it is the
tenant who breached (not getting the benefit of the bargain). Makes a lease pointless. Its very
burdensome on an out-of-state landlord. May have to accept a poor tenant because of need to
make mortgage payments. Making a landlord mitigate may drive up rents.
arguments for having to mitigate: in cities at least, its very easy to find new tenants and possibly
for higher rent. In transient locations, landlords have a lot of power.
DC = no duty to mitigate unless there is a contractual provision reserving that right
Sommer v. Kridel
Facts: K entered into a 2-year lease with S. K was supposed to get married, but didnt, and couldnt afford the place. K sends
a heart-felt letter and S does nothing. Someone wanted the apartment after that and S said it was rented. S eventually re-let the
property for the same amount. Trial court said the landlord should have to mitigate damages and that the failure to respond to
the letter was acceptance of Ks surrender (K need not pay for future rent).
Holding: The court overruled the old common law rule that said the landlord could do nothing and said a landlord now has a
duty to mitigate damages with reasonable efforts. Affirmed.

Duty of Landlord - Remedy for Tenant

Pro-tenant property law revolution
most of the cases that led courts to the pro-tenant revolution included egregious violations of the
housing code.
In the rental of any residential dwelling unit, the implied warranties now apply
Old Rule: Caveat lessee let the buyer beware.
- where the tenant farmer didnt need to worry about the property as much as the land and the
shelter problems could be fixed by him because he was handy
Modern Rule: the courts found that the more modern doctrine of implying warranties into leases was
more suited to the modern apartment dweller (not as interested in land as the fitness of the space) as the
agrarian tenant.
THE COVENANT OF QUIET ENJOYMENT AND CONSTRUCTIVE EVICTION
Covenant of quiet enjoyment: an implied term in every landlord-tenant relationship
the landlord impliedly promises not to disturbe the quiet enjoyment of the property
actual eviction: if the landlord bars the tenant from the property, the tenants rent obligation ceases
partial actual eviction: barring the tenant from part of the property constitutes a breach and gives
justification for moving out before the lease expires and without rent liability

 constructive eviction: when the landlord substantially interferes with the tenants quiet enjoyment of the
premises this allows the tenant to cease rent and move out before the end of the lease
under traditional rule, not responsible for acts of other tenants unless there is an obligation to do
so in the lease
purpose: if landlord lets the conditions deteriorate to such an extent, his actions are equivalent to
actual eviction.
traditionally, can only use claim of constructive eviction if you actually move out, but this rule is
modified by the courts.
partial constructive eviction: occurs when the landlord substantially interferes with the
enjoyment of a portion of the property - this will likely allow partial abatement of rent
Minjak Co. v. Randolph
Facts: Apartment from hellfalling brick, water gushing, dust settling, loud noise, all of which caused health problems. The
tenant above caused some of the problems and the landlord caused some also. The tenant stayed there even though most of the
loft was unusable. The tenants want rent abatement and damages for violation of the warranty of habitability. The landlord
wants two years of back rent.
Issue: can a tenant use constructive eviction if they have not abandoned the premises?
Holding: The tenant can assert constructive eviction even though he has abandoned only a portion of the demised premises.
Blackett v. Olanoff
Facts: The tenants were next door to a cocktail lounge. The lounge had music playing really loud until early in the morning.
They claim that the landlord breached the covenant of peaceful enjoyment because they were there first and the landlord
shouldnt have let the premises to such a loud neighbor. The landlord wants back rent and says he shouldnt have to pay
because his other tenants are making the noise and not even the tenants, but their patrons.
Issue: can the covenant of peaceful enjoyment be used against a landlord when the breach is actually from another tenant?
Holding: the conduct, and not the intention of the landlord are the most important. The harm of the quiet enjoyment was
apparent to the landlord and he had control over the situation by leasing the premises to such a loud tenant. It was foreseeable!
The landlord also had control over the commercial lease and the noise level.

THE IMPLIED WARRANTY OF HABITABILITY

Implied warranty of habitability
imports the relevant localities housing code into each and every lease
the caveat lessee no longer applies
this is adopted in a majority of states
the landlord must substantially comply with the housing code
this is a COMPULSORY TERM
- For: every landlord would waive the warranty if they could
- Against: making this clause be in every lease will drive up prices
Covenant of Quiet Enjoyment
Violation requires some affirmative action on the
part of the landlord or someone in landlords
control
tenant needs to move out of at least part of the
premises she claims she is being constructively
evicted from
violation is nuisance like: need an affirmative,
substantial interference with peacefully and
beneficially using and enjoying the premises

Implied warranty of habitability

Mere negligence or failure to maintain on the part
of the landlord will suffice
tenant can stay on premises and assert the
violation as a defense to failure to apply
violation is more objective: look to the housing
code for objective violations (need more than just
de minimus violations)

GWU v. Weintraub
Facts: Two law students lived in a building owned by GWU and managed by someone else. The students were informed that
some work on the plumbing was being done, but when they came home, both of their apartments were flooded and a lot of
their personal property was damaged. GWU agreed to put them up in a hotel for a few days while repairs were being done, but
didnt pay for personal property because of a clause in the lease that said they werent liable. The students sued for breach of
implied warranty of habitability and asked for damages to personal property and reimbursement for full hotel expenses.
Issue: can a tenant use the implied warranty of habitability offensively as well as a defensively?
Holding: Yes, it can be used as a sword as well as a shield. Leases should be construed as contracts and the implied warranty
of habitability cannot be waived or it would make the warranty meaningless because every landlord would try to waive it.
Issue: should a landlord have strict liability standard for losses unless he can show it isnt his fault or should he have a
negligence standard?
Holding: The landlord should follow a negligence standard. He is not responsible for defects that he is not aware of and he
must have some sort of notice (burden on to show lack thereof). Using strict liability would make the landlord an insurer of
his tenants property.

Exam:
- outline answer
- underline when getting to a different subject (heading)
- use black letter law
- see Tuttle or Brauneis for more exams
- can use case cites if there are similar facts or a good opportunity to do so the cases should add
something more than the black letter law.