Rule of Capture one who (1) first captures (2) with intent to remain control is

entitled to those resources

*Exceptions animus revertendi, rule of increase, ratione soli
Common pool rule (1) drill straight down (2) into a common pool between
two lots
Unitization rule (1) apportion drilling profits (2) based upon surface acreage
Riparian Reasonable Use Doctrine (1) joint owners (2) reasonable use (3)
no substantial interference to others
Prior Appropriation Doctrine water rights determined by (1) first to control
Acquisition by find in order to determine finders rights must consider (1)
intent of original owner (2) status of finder (3) where item was found
Lost property property that is (1) accidentally or casually lost which (2) goes
to the finder
Mislaid property property that is (1) intentionally placed somewhere and (2)
forgotten which (3) goes to the owner of the premises
Gift requires (1) the intention to make a gift (2) delivery of the chattel to the
donee and (3) acceptance by the donee
Adverse Possession of Property one who possesses land (1) exclusively in an
(2) open, notorious, and visible manner (3) adversely and under a claim of
right for a (4) continuous, uninterrupted period for a (5) determined SOL
Tacking may occur between (1) subsequent possessors who are in (2) privity
with one another
Adverse Possession of Chattels one who possesses a chattel (1) exclusively
and (2) adverse to the true owner for a (3) continuous, uninterrupted period
for a (4) determined SOL
Fee Simple Absolute an estate establishing (1) absolute ownership of (2)
potentially infinite duration
Fee Simple Determinable an estate using (1) clear durational language (2)
where a possibility of reverter exists in the grantor
Fee Simple Subject to Condition Subsequent an estate using (1) clear
conditional language (2) carving out a right to reenter in the grantor
Life Estates an estate for (1) duration of someones life (2) creating a
remainder or a reversion
Remainder a future interest created in a (1) grantee that becomes (2)
possessory at the (3) natural conclusion of a (4) preceding life estate or
term of years
Vested Remainder a remainder created in (1) an ascertained person and (2)
not subject to any condition precedent
Contingent Remainder a remainder created in (1) an unascertained person
or (2) subject to a condition precedent or (3) both
Executory Interest a future interest created in a (1) transferee that must (2)
cut short another estate
Springing Executory Interest an executory interest which (1) divests a
grantor and where there is some (2) time gap between the requisite
condition and the right of possession
Shifting Executory Interest an executory which (1) divests a grantee

1
Proper Land Transfer must (1) be in writing (2) be signed by those bound (3)
describe the real estate and (4) state the price
*Exceptions part performance, estoppel
Deed consists of a (1) description of the land (2) signed by the grantor and (3)
certain covenants
Covenants are either (1) present or (2) future
Present Covenants include (1) covenant of seisin (2) right to convey and (3)
against encumbrances
Future Covenants include (1) covenant of general warranty (2) quiet
enjoyment and (3) future assurances
Disclosure is required if something (1) is hidden and (2) materially impairs the
value of the property
Race deed goes to (1) first to record the property
Notice deed goes to person (2) as long as he had no notice
Race-Notice deed goes to (1) whoever has no notice and (2) records first
Case Name Issues / Rule
Johnson v. MIntosh (first to First to discover and claim land as their
discover) own gets the land
Pierson v. Post (capture) First to capture and maintain control
gets animal
Ghen v. Rich (Customs) Local customs often override common
law principles if the customs are more
efficient
Keeble v. Hickeringill (capture Cannot interfere with anyones right to
interference) capture on their own land
Armory v. Delamirie (finder Property rights are relative. Finder has
superior right) superior rights to subsequent finders
Hannah v. Peel (owner has Owners have constructive possession
possession of over items in home or underground
lost unless home owner has yet to move
into home
McAvoy v. Medina Distinction between lost & mislaid
Newman v. Bost Delivery can be constructive or
symbolic; must analyze donor intent
Gruen v. Gruen Look at donor intent; sometimes
delivery is unnecessary; bundle of
rights
Moore v. Regents Bundle of rights; Mosks dissent
rights in property are not absolute
Van Vulkenburgh v. Lutz Adverse Possession must satisfy all
requirements; New York rule of
improvement required
Manillo v. Gorski Open & Notorious is often difficult if
the encroachment is small
Howard v. Kunto Continuous only means as a true owner
would use the property
OKeefe v. Snyder Discovery Rule for AP of chattels; due
diligence required; Remember Demand
and Refusal Approach (NY)

2
White v. Brown If conveyance is ambiguous look to
donors intent; Courts often prefer
granting larger estate
Baker v. Weeden Must consider both holder of estate
and remainderman when
contemplating forced sale
Brown v. Lober Owners must actually suffer
constructive eviction; finding out you
dont own absolute rights is not enough
Luthi v. Evans General descriptions, Mother
Hubbard are not sufficient to give
subsequent purchasers adequate notice
Stambovsky v. Ackley Duty to disclose non-visible defects if
they affect the value of the home; NY is
caveat emptor but moving towards
majority
Jacque v. Steenberg Homes Owners have right to exclude; must
weight benefits of owners to potential
need of those who want to enter land
State v. Shack Owner has limited rights to exclude
when those whom he is excluding
would grant severe aid to those on
property
Mahrenholz v. County Board Future interests cannot be transferred
inter vivos (Minority View / IL view)
Subtle differences between
determinable estates
Mountain Brow Lodge v. Toscano Look to intent of grantors; Some
restrictions on alienability are ok

3
Rule of Capture
I. A person who first captures resources is entitled to the resources (first in
time)
II. If wild animals are captured, they belong to the captor
a. Capture is required merely chasing an animal is not enough
i. Policy Reasons:
1. Society values capture foster competition by rewarding
captor
2. Ensure certain property rights
a. Certainty of title stemming from capture rule
encourages an owner to invest time and energy in
making the captured animal more useful to society
3. Ease of administration
a. Capture is an objective act, hence an easier rule to
administer than protecting pursuit which is hard to
define and can take many forms
Are same policy reasons valuable today?
III. ELEMENTS: (Pierson v. Post) (analyze items not just animals with
this too)
i. Pursuer must manifest an unequivocal intention of
appropriating the animal
1. Demonstrate to the world that you are taking the animal
for yourself
ii. Pursuer must deprive the animal of natural liberty
1. Wounding or capturing the animal in a cage
iii. Pursuer must bring the animal within a certain control
1. Argue that animal was within your reach and couldnt run
away
2. On the other hand, could argue that you didnt secure the
animal in your bag
IV. If an animal has been mortally wounded or trapped so that capture is
virtually certain, the animal is treated as captured must have
continued pursuit or presence
a. The captor acquires possession if he uses reasonable precautions
against escape
V. A person who does not want to capture the animal cannot interfere
a. Remember, society wants animals to be captured
VI. A custom, which is thought more effective in getting animals killed, may
dictate a different result
VII. Captured wild animals that develop an animus revertendi (with
intention to return) continue to belong to the captor when they roam at
large
a. Rule of Increase
i. Whoever owns mother owns the offspring
b. Domesticated animals are valuable to society
i. Effort to tame wild animals is rewarded
VIII. If a captured wild animal that has no animus revertendi escapes, the
captor loses possession
4
 a. Animal then can be recaptured by anyone
b. Ratione Soli one possesses whatever is on his land

IX. Oil and Gas

a. Both seen as fugitive resources analogous to wild animals
i. A landowner can extract (capture) all the oil and gas from a
well bottomed under the landowners land, even though the oil
and gas may be drained from neighboring land
b. Common pool rule
i. Must drill straight down into a common pool between two lots
ii. This rule is usually superseded by statutes now
c. Unitization rule
i. To conserve resources most states have statutes regulating the
number of acres required for a well and requiring
apportionment of the drilling profits among the surface owners
w/in the acreage unit
1. Prevents landowners from racing to put down wells to
capture oil and gas from their neighbors
X. Water
a. Riparian Reasonable Use Doctrine (water belongs to person whose
land borders a body of water) Under this system, an owner whose
land adjoins a watercourse may take water for all reasonable uses
that do not substantially interfere w/ the uses of other riparian owners
(EASTERN STATES)
b. Prior Appropriation Doctrine Water rights are allocated to the
first person to take water from a watercourse for a beneficial use
even if his land does not adjoin the watercourse (WESTERN STATES)
i. Water can be used on land far away from the water source
1. Encourages development of water uses and is predictable
(a commodity able to be bought and sold)
ii. May cause exploitation of water
c. Adjacent landowners have riparian rights in streams or lakes
i. Include rights in the quantity, quality, and velocity of water
XI. Cases
a. Johnson v. MIntosh (US SC 1823) (Indian-American case)
i. OVERVIEW: Plaintiffs, mostly British subjects and their heirs, claimed title to
property conveyed to them by the Piankeshaw Indians prior to the American
Revolution. Plaintiffs contended that their title ran directly from the Native
Americans who owned the property and therefore it was superior to
defendants' title. Defendants' land grant came directly from the United
States government and the district court held that defendants' claim was
superior. The court based this decision on the idea that the Piankeshaw were
not actually able to convey the land b/c they never "owned" it in the
traditional sense of the word. The Court agreed and upheld the defendants'
title by land grant.
ii. OUTCOME: The Court upheld the decision of the lower court and treated
defendants' claim to the contested property to be superior to plaintiffs' claim.
b. Pierson v. Post (NY SC 1805) (Hunter trying to hunt a fox)
i. OVERVIEW: Plaintiff hunter was out w/ his hounds chasing a wild fox when
defendant interceptor, knowing the fox was being chased, shot and killed it.
Plaintiff brought an action against defendant for trespass, and the trial court
ruled in his favor. Defendant appealed, arguing that plaintiff had no rights in
5
 the fox merely b/c he was chasing it. The court reversed, holding that mere
pursuit did not give plaintiff a legal right to the fox, but that it became the
property of defendant, who intercepted and killed him. The court held that
however uncourteous or unkind defendant's conduct was toward plaintiff, it
produced no injury or damage for which a legal remedy could be applied.
ii. OUTCOME: The court reversed the decision in favor of plaintiff hunter b/c
mere pursuit did not give plaintiff a legal right to the fox. The court held that
the fox became the property of defendant interceptor when he killed it, and
his uncourteous conduct did not produce an injury or damage for which there
could be a legal remedy.
c. Ghen v. Rich (US DC Mass. 1881) (Shot whale that was sold by the
finder)
i. OVERVIEW: Libellant fisherman shot a fin-back whale w/ a bomb-lance
identifiable as belonging to him, which caused it to sink to the bottom of the
ocean. This method was used b/c the fin-back whale swims too fast to be
killed by harpoon and line. A local custom existed in the community that
when a whale resurfaced, the fisherman would be notified and the finder
would be paid a small salvage fee for his services. In this case, the whale was
found on the beach by a third party, who sold it to respondent. Libellant sued
respondent for conversion of the whale. The court granted judgment to
libellant, holding that the local usage gave title to the whale, since it was
reasonable and required the first taker to commit the only act of
appropriation that was possible in that situation, i.e. embedding the
identifiable bomb-lance in the whale.
ii. OUTCOME: Court granted judgment to libellant fisherman in action for
conversion of whale against respondent who purchased whale from person
who found it on beach, b/c local usage that fisherman who shoots whale w/
identifiable bomb-lance, allowing whale to sink, then pays fee to finder upon
its resurfacing, gave fisherman title.
d. Keeble v. Hickeringill (Queens Bench 1707) (Neighbor scarring
ducks so P cant hunt)
i. FACTS: Keeble, at his own cost, put together a decoy pond w/ decoy ducks,
nets, machines and other engines for decoying and taking of actual wildfowl.
It was a very beneficial financial source for Keeble. Hickeringill, a neighbor
of Keebles, shot intentionally at Keebles decoy pond on two occassions,
intentionally scaring away the wild fowl that resided there.
ii. REASONING: -Where a violent or malicious is done to a mans occupation,
profession, or way of getting a livelihood there an action lies in all cases.
When someone is working to supplement the markets of the nation, they
should be greatly encouraged and commended for their public benefit. They
should be able to reap the benefit and have their action. The true reason for
the action is not to recover damages for the loss of the fowl, but for the
disturbance. An action lies in this case b/c Hickeringill is importing damage
by coming onto Keebles property w/ bad intentions and firing a gun,
interfering w/ Keebles business.

6
Acquisition by Find

I. Generally, finders have right to found property over anyone but rightful owner.
II. 3 Factors of judicial analysis for finders rights
a. Intent of original owner lost, mislaid, abandoned
b. Identity of competing claimants
i. Status of finder
1. Trespasser, Lawful occupant, agent of owner, etc.
c. Where item was found
III. Law of finders ONLY applies to personal property
IV. A finder has rights superior to everyone but the true owner
a. Title is relative, not absolute
b. Prior possessor has the superior right
i. Policy reasons
1. Prior possession protects an owner who has no proof of
ownership
2. Entrusting goods to another is an efficient practice
3. Prior possessors expect to prevail
4. Protecting a finder who reports the find rewards
honesty
5. Protecting a finder rewards labor in returning a useful
item to society
V. If A steals jewel and B finds it A still has rights
True Owner
Prevails over
Possessor finder or
even thief
Prevails over
Subsequent possessor
VI. What is possession?
a. Must acquire physical control over the object and have intent to
assume dominion over it
b. Constructive possession
i. A person is in constructive possession when the law treats
him as if he is in possession although, in fact, he is not or he
is unaware of it
1. Reasonable expectations of landowners
a. Believe everything w/in house and under land is
theirs
VII. If it is a public place, the ownership goes to the finder not the owner
of property
VIII. If finder is a trespasser, the owner of the premises where the object
is found always prevails over the finder
IX. If finder is an employee, he cannot keep the object
a. He is acting as an agent of employer
X. If object is under soil awarded to owner of premises

7
XI. Objects found inside a private home are usually awarded to the
owner of the home
a. Policy: true owner more likely to come back to claim it
i. However, if owner has not moved into house, owner of house
is not in constructive possession
1. No prior possession
XII. Escheat Laws: Where abandoned property is held by an intermediary with no
property interest in property, state may assume title to property through process
called ESCHEAT.
a. Kick in after a couple of years
b. Abandoned houses, cars, accounts, storage lockers

XIII. Lost v. Mislaid

a. Lost property that the owner accidentally and casually lost
i. Lost property goes to the finder rather than owner of the
premises
b. Mislaid property intentionally placed somewhere and then
forgotten
i. Mislaid property goes to the owner of premises
1. Rationale: true owner more likely to return to premises
XIV. Abandoned property is awarded to the finder
XV. Cases
a. Armory v. Delamirie (Kings Bench 1722) (Finder has higher
rights than 3rd person)
i. Facts: The plaintiff found a jewel and took it to the defendants goldsmith
shop. The defendant pretended to weigh it, but stole the stones and told
the plaintiff it was worth three halfpence. The defendant offered the
plaintiff the money, but the plaintiff declined and asked for the jewel
back. The plaintiff only got back the socket but not the stones. The
plaintiff sued in trover.
ii. Issue: What rights does a finder of property have?
iii. Rule: The finder has a better title to the property he found than everyone
except the rightful owner.
iv. Analysis: The plaintiff gets the maximum possible value of the jewel
unless the defendant produces it.
b. Hannah v. Peel (Kings Bench Division 1945) (Solider found
brooch in Ds house)
i. Facts: The defendants manor was requisitioned by the military for use in
World War II. A soldier staying there found a brooch. He turned it in to
the police. When the owner couldnt be found, the brooch was turned
over to the owner of the manor instead of the solider. The manor owner
sold it. The solider sued the manor owner for the value of the brooch,
claiming finders keepers. The manor owners defense is that he has
superior title to the brooch b/c it was found on his property.
ii. Issue: Who has superior title to the brooch?
iii. Rule: NEW(ish) RULE! A landowner owns everything attached to
or under the land, but not necessarily stuff lying on the surface of
the land even though the stuff isnt possessed by someone else.
iv. Analysis: The court pours over the authorities, doing a lot of analogizing
and distinguishing. The court first considers the rule of Armory v.
Delamire, then the more controversial Bridges v. Hawkesworth. The
latter case says that the finders keepers except to the true owner rule
applies no matter where the item is found. But then there is a third case

8
 that seems to be in conflict. In South Staffordshire Water Co. v. Sharman,
some rings were found embedded in some mud at the bottom of a pool
(c.f. Lord of the Rings), and it was ruled that the finder didnt get them
b/c they were a part of the real estate, as it were.
v. The court eventually comes to the rule above, and thus finds for the
plaintiff.
vi. Conclusion: The soldier gets the value of the brooch.
1. The law here is questionable
2. Rewarding honesty of the finder
c. McAvoy v. Medina (SC Mass. 1866) (Lost v. Mislaid)
i. Wallet was found in barbershop. Finder and shop owner both claim
ownership
ii. Formulates distinction between lost and mislaid property
1. Mislaid property the true owner intentionally placed and left w/
the intention of returning for belongs to owner of premises
2. Lost property is that which was dropped, fell, etc.
iii. Court held that shop owner had rights b/c giving it to shop owner
encourages that the true owner will return there looking for it

9
Acquisition by Gift

I. A gift is a voluntary transfer of property w/out any consideration

or compensation.
II. Three requirements:
i. Donor must intend to make a gift
1. Promise to give property in future = NOT a gift
2. Gift transfers title
3. A jury question to what donor said, if words unclear they look
at circumstances, relationship, conduct after giving away the
gift: Are they acting like it was a gift or acting like

ii. Donor must deliver chattel to done

1. Donor must do something that evinces intent to be
immediately bound.
a. Promise to give property in the future = not a gift
b. Gift transfers title
c. A jury question to what donor said, if words unclear
they look at circumstances, relationship, conduct after
giving away the gift
i. Are they acting like it was a gift?
2. Manual delivery required by donor or someone acting on
behalf of donor
a. Loss of dominion of control of the property
i. Cant give a gift but hold on to it for a long time
3. OR
4. Constructive delivery
a. Transferring means for the donee to get dominion over
a gift
i. EX: Giving a key to get stuff from the safe
b. If the gift is already in the hand of donee, no delivery is
required

iii. Donee must accept the chattel

III. Types of gifts

a. Gift inter vivos gift made during the donors life when the
donor is not under any threat of impending death
b. Gift causa mortis gift made in contemplation of immediately
approaching death
i. Court usually more strict w/ requirements here
ii. Gift is revoked if the donor recovers from the illness that
prompted the gift
iii. Always ask Was the gift made in contemplation of death?
iv. In practical effect, a gift causa mortis is a substitute for a will
IV. A promise to give property is not a gift
V. Reasons for having delivery
i. Grantor must feel wrench of delivery
ii. Objective evidence of grantors intent to give

10
 iii. Protects donor from making improvident oral statements
iv. Intended to guard against fraud, mistake, or undue influence
VI. Rationale Behind Delivery
i. Ritual: Impresses the grantor with the legal significance and
finality of the act
ii. Evidentiary: Delivery is reliable, objective intent of the
grantors intent to give
iii. Protective: Requiring delivery protects unwary or
incompetent donor
VII. Trend towards easing delivery requirement
i. If intent is compelling lax on delivery
ii. If intent is weak harsh on delivery
VIII. Methods of Delivery
i. Constructive delivery means of possession (i.e., a key, a
combination)
ii. Symbolic delivery symbol of actual gift (i.e., big check,
written instrument)
iii. In both above cases, manual delivery must be impractical
iv. Where a 3rd party exists
1. If 3rd party is agent of grantor gift is completed when
3rd party gives it to donee
2. If 3rd party is agent of donee gift is completed when
3rd party gets it from grantor
IX. The law presumes acceptance when gift is beneficial to the donee
X. Cases
a. Newman v. Bost (SC North Carolina 1898) (Life insurance
locked in a cabinet)
i. OVERVIEW: The litigant lived w/ the intestate. The litigant alleged the
intestate, while in his last sickness and confined to bed, gave her all the
furniture and other property in his dwelling-house as a gift causa mortis
(a revocable gift; could be revoked anytime before death). The intestate's
nurse was present when the intestate asked the litigant to get his private
keys. The intestate handed the keys to the litigant and told her to take
and keep them, that he desired her to have them and everything in the
house. Locked inside a bureau in the intestate's room was the life
insurance policy. The court ordered a new trial, holding that: (1) where
the insurance policy was capable of actual manual delivery, the court was
of the opinion the title of the insurance policy did not pass to the litigant,
but remained the intestate's property; (2) the bureau and any other item
of furniture locked or unlocked by the keys passed to the litigant where
the delivery of the keys constituted constructive delivery where manual
delivery was not possible; (3) other articles of household furniture did not
pass to the litigant; and (4) upon a new trial the litigant was entitled to
show actual or constructive delivery of the piano equivalent to actual
manual deliver.
ii. OUTCOME: Where the court found error in the trial court's decision in
favor of the litigant in her suit against the administrator to recover
certain allegedly converted items it remanded the cause for a new trial.
iii. Public Policy
1. IMPORTANCE OF WILLS
b. Gruen v. Gruen (Ct. of Appeals NY 1986) (Delivery doesnt have
to be physical)

11
 i. OVERVIEW: Plaintiff brought suit against defendant seeking a declaration
that plaintiff was the owner of a painting gifted to him prior to his father's
death. The lower court entered judgment in plaintiff's favor, holding that
a valid gift was made. Defendant appealed. The appeals court affirmed.
The appeals court held that a valid gift consisted of a donative intent,
delivery, and acceptance by the donee. As to donative intent, the appeals
court held that a life estate and remainder could be created in a chattel.
The court continued and held that whether the maker intended the gift to
have no effect until after the maker's death, or whether he intended it to
transfer, some present interest was the determinative factor. As to
delivery and acceptance, the appeals court held that delivery need not be
physical and acceptance was presumed where the subject of the gift was
valuable.
ii. OUTCOME: The appeals court affirmed the lower court's judgment,
holding that plaintiff was the rightful owner of the painting where the
evidence established there was a donative intent, delivery, and
acceptance.
iii. Bundle of Rights
1. Life-Estate & Vested Remainder

12
Rights in body products

I. Some things can be sold

a. i.e., sperm, blood, plasma
II. Some things cannot be sold
a. i.e., excised cells
III. Statutes always trump common law
IV. Bundle of rights
V. Important Questions
a. Who has decision making authority over the human body or parts?
b. To what extent can government restrict or condition this authority
VI. Policy Reasons
a. Need to protect research interests
VII. Cases
a. Moore v. Regents of University of California (SC California
1990)
i. OVERVIEW: Review was sought of appellate court's decision, which found
plaintiff stated cause of action for conversion when defendants used
plaintiff's cells in medical research w/out permission. The court found
plaintiff stated cause of action for breach of physician's disclosure
obligations. Physicians seeking patient consent for medical procedures must
disclose personal interests unrelated to the patient's health that may affect
medical judgment. Defendant did not properly disclose personal interests in
plaintiff's cells before he operated, thus plaintiff stated cause of action for
breach of disclosure obligations. The court reversed and held use of
plaintiff's cells w/out permission did not state conversion cause of action.
Plaintiff did not retain ownership interest in cells after they left his body and
thus could not assert conversion claim. Conversion should not lie b/c it would
discourage medical research of cells and patients are adequately protected
from abuse b/c of informed consent laws.
ii. OUTCOME: The court reversed the appellate court's decision, finding
plaintiff did not state conversion claim when defendants used plaintiff's cells
in medical research w/out permission b/c plaintiff had no ownership interest
in cells after they left his body; plaintiff did state claim for breach of
physician's disclosure obligations.
iii. Court gave 3 reasons why Conversion would not apply
1. Policy Consideration
a. It ended up developing a cure
b. Court must weigh public interest
i. They said a decision for P would only indirectly protect
patient rights
2. Defered to legislature whether they wanted to include human body
a. Legislature should impose liability if they feel that it is nec.
3. Not necessary to protect patients rights.
a. Disclosure obligations will protect patients rights against the
very type of harm P suffered

iv. Apprehensive to extend tort of conversion here

1. Policy Effect of scientific research
v. Dissent
1. Moore had right to do w/ his own tissue whatever the defendants did
w/ it
a. How can Moore not own his own cells, but the defendants can?

13
Adverse Possession

I. If, w/in the statute of limitations, the owner of land does not take legal
action to eject a possessor who claims adversely to the owner, the
owner is thereafter barred from bringing an action in ejectment.
Once the owner is barred from suing in ejectment, the adverse
possessor has title to the land
II. Adverse possessor is the owner and can improve the property
III. Purpose of Adverse Possession
a. To protect title
i. Title becomes difficult to prove over time
ii. To bar stale claims
1. Witnesses memories still fresh
iii. Reward those who use land productively (Lockian)
iv. Honor peoples expectations
1. People become quite attached to land
IV. Possessors rights before acquiring title
i. May evict subsequent possessors
ii. Have no monetary interest in property value over true owner
V. Requirements of Adverse Possession
a. Exclusive possession
i. Entry must be literal. Triggers the start of action
ii. This triggers the statute of limitations, it starts running again
b. Must occupy in open, notorious, and visible manner (objectively
visible)
i. Sort of possession that the usual owner would make under
the circumstances.
ii. Original owner needs to have notice
c. Adverse and under a claim of right
i. Must be acting as a true owner would
ii. Possession is w/out owners consent
1. Maine doctrine (minority view) (aggressive
trespass)
a. Possession must be hostile
i. Policy:
1. Intentional wrongdoer wins / Good
neighbor does not
2. Encourages dishonesty
a. Neighbors may lie on witness
stand
2. Connecticut Doctrine (majority view) (objective)
a. No particular mindset required
3. Good Faith (minority)
a. Owner must believe that he/she is the true owner
4. Bad Faith (Minority)
a. Know they dont ownt he land, but intend to stay
regardless
d. Continuous, uninterrupted possession

14
 i. Only degree of occupancy and use that the average owner
would make of the particular type of property
1. A person can be in continuous possession even though
there are considerable intervals during which the
property is not used (i.e., summer home)
2. Purpose: Gives the owner notice that the possessor is
claiming ownership, and that the entries are not just a
series of trespasses
a. Also gives owner the incentive to monitor the
land
ii. If possessor abandons the property for any period of time,
w/o intent to return, continuity of adverse possession is lose
1. Statute of limitations starts over
e. Statute of Limitations
i. This is different for every state
ii. The trend is to shorten the SOL
1. Society wants utility of land
VI. Tacking separate periods of actual possession by those holding
adversely to the owner can be tacked together
a. Provided there is privity of estate between the adverse possessors
i. Privity voluntary transfer of land
1. Rationale: title gained by meritorious conduct
a. An involuntary transfer by ouster or seizure is
not regarded as meritorious
b. Not permitted where one adverse possessor abandons the property
c. Successive ownerships are tacked on the owners side as well
i. i.e., C is adverse possessor against O, O sells to P
1. Statute of limitations still runs on P until ejectment
d. A can tack her prior possession onto her later possession, but the
statute is tolled during the period of the ousters possession
VII. Most statutes give an additional period of time to bring an action if
the owner is under a disability
a. i.e., jail, hospital
VIII. Relation Back Doctrine
a. The adverse possessors title relates back to the beginning of the
adverse possession
IX. The adverse possessor must file a quiet title action against the
former owner to have his name recorded in the courthouse
X. Constructive Possession
a. If there is actual entry on part of the land, the AP is deemed the
owner of all the land when there is a color of title
i. Color of title refers to a claim founded on a written
instrument or a judgment or decree which, unknown to
the claimant, is defective and invalid
XI. It is possible for two or more persons, acting in concert and sharing
only among themselves, to acquire title by adverse possession as
tenants in common
XII. Cases
a. Van Valkenburgh v. Lutz (Ct. of Appeals NY 1952)
15
 i. OVERVIEW: Plaintiff landowners purchased property from the city of
Yonkers, New York in 1947. Defendant neighbors, a husband and wife,
owned lots adjoining plaintiffs' lot. Plaintiffs brought actions against
defendants to compel the removal of encroachment upon plaintiffs' lands,
for delivery of possession, and for incidental relief. The actions were
consolidated and a referee found that title to the disputed lots was
perfected in defendant husband by adverse possession. The appellate
court affirmed. On further appeal, the court reversed, concluding that
there was no proof that the subject premises were protected by a
substantial inclosure, nor did defendants show that the premises were
cultivated or improved sufficiently to satisfy the requirements of New
York's Civil Practice Act, 34, 38, 39, 40. The court reasoned that the
proof failed to show that cultivation incident to a garden utilized the
whole premises claimed, or that the premises were improved, or that
there was hostile intent where defendants' garage unintentionally
encroached only a few inches over the boundary line. Littering the
property could not be deemed improvements.

ii. OUTCOME: Judgments granting title to defendant neighbors by adverse

possession of plaintiff landowners' property was reversed, and
defendants' counterclaim was dismissed w/ judgment directed in favor of
one of plaintiffs b/c the proof failed to establish actual occupation for
such a time or in such a manner as to establish title by adverse
possession where defendants did not improve the property and had not
intended to take title.
iii. This is NEW YORK law
1. Not all states require improvement
a. Most states only require that one use the land in the way a
true owner would
iv. Judicial Frustration
1. Sometimes court using both Maine and Connecticut Doctrine

b. Manillo v. Gorski
i. OVERVIEW: The court reversed the denial of defendant landowner's
counterclaim for a declaratory judgment which would adjudicate that she
had gained title to the disputed premises by adverse possession under
N.J. Stat. Ann 2A:14-6, and the grant of plaintiff adjoining landowner's
request for a mandatory and prohibitory injunction against an alleged
trespass upon their land. The court found that the trial court had
concluded that defendant had clearly and convincingly proved that her
possession of the 15-inch encroachment onto plaintiffs' land had existed
for more than 20 years before the institution of suit and that such
possession was exclusive, continuous, uninterrupted, visible, notorious
and against the right and interest of the true owner. The court found that
there was ample evidence to sustain this finding except as to its visible
and notorious nature. However, the court remanded for a determination
of (1) whether the true owner had actual knowledge of the encroachment,
(2) if not, whether plaintiffs were obliged to convey the disputed tract to
defendant, and (3) if the answer to the latter question was in the
affirmative, what consideration was to be paid for the conveyance.

ii. OUTCOME: The court reversed the issuance of a mandatory and

prohibitory injunction against defendant landowner b/c although there
was ample evidence to sustain the finding that defendant had proved
possession of a 15-inch encroachment for last 20 years on plaintiff
landowners' land, there was not ample evidence that it was of a visible
and notorious nature. The court remanded for a determination.

c. Howard v. Kunto
16
 i. OVERVIEW: Defendants' house stood on one lot while their deed
described the adjacent lot. At the time quiet title action was commenced,
defendants occupied the disputed property less than a year. The lower
court found defendants unable to establish a claim for adverse possession
b/c they failed to prove continuity of possession to permit tacking of
defendants' possession to their predecessors'. The court concluded that a
ten year summer occupancy did not destroy continuity of possession for
purposes of adverse possession b/c the land was regularly used during
the time it was capable of use and defendants made continued
improvements on the land. As a result, the court found tacking permitted.
The court determined the privity requirement for tacking was satisfied
b/c defendants' claim of right as the last of successive purchasers who
received title under the mistaken belief they acquired a contiguous track
was sufficiently above that of a trespasser.

ii. OUTCOME: The court reversed quieting of title in plaintiffs' favor and
entered a decree which quieted title in defendants' favor b/c defendants
were able to establish continuity of possession for purposes of a claim to
title based on adverse possession.
iii. Summer occupancy for more than 10 years as required by the statute
together with improvements on the land constituted uninterrupted
possession.

17
Adverse Possession of Chattels
I. Requirements very similar to property
a. Continuous, uninterrupted possession
i. Statute of limitations usually shorter
b. Adverse to true owner
c. Exclusive possession
II. Adverse possession of land is open and notorious whereas
adverse possession of chattels rarely is
III. Two different views on adverse possession of chattels
a. Demand and Refusal Approach (pg 154)
i. New York (where most major works of art are purchased)
holds that the statute of limitations does not begin to run on
the owner of stolen goods until the owner knows who has
the goods and makes a demand for return of the goods
that is rejected
ii. Only a very small minority of states follows this rule
b. Discovery Rules (Majority)
i. Majority of courts hold that the statute of limitations does not
begin to run on the owner of stolen goods as long as the
owner continues to use due diligence in looking for them
ii. The statute runs when the injured party knew or reasonably
should have known/discovered the facts which form the basis
of the suit.
iii. Problems w/ Discovery Rule
1. Good faith adverse possessor will unlikely take steps to
find true owner and not acquire title
2. Bad faith adverse possessor will comply w/ law and
gain title from a negligent owner
IV. Cases
a. OKeefe v. Snyder
i. OVERVIEW: Plaintiff artist sought to recover three paintings from
defendant's gallery that were she allegedly owned and which were stolen
from another gallery. Defendant asserted he was a purchaser for value,
had taken title of the paintings by adverse possession, and that the action
for replevin was barred by the statute of limitations period. The court
held that the lower court erred in granting summary judgment to plaintiff
by concluding that the paintings were stolen and that defendant had not
proven the elements of adverse possession. The court noted that
defendant contested the theft and had conceded it only for purposes of
having his adverse possession claim decided. The court decided that the
factual disputes warranted a remand. The court indicated that it could
not determine who had title on the limited record before it, but proceeded
to resolve questions of law that would become relevant on remand. The
court held that the discovery rule applied in determining when the statute
of limitations began to run in the action for replevin.
ii. OUTCOME: Court reversed grant of summary judgment in plaintiff's favor
and remanded back for trial b/c it was error to accept one of two
conflicting versions of material fact when defendant conceded the fact
only for purposes of enabling the court to determine his motion for
summary judgment.
iii. A thief may not adversely possess something
18
 1. It must be a good faith purchaser

I. Estates in Land: Present Possessory Estates

An interest in land that gives the owner a right to possess the land either immediately, in the future, or
potentially in the future.

a. General
i. The Three Rs:
1. Remainder interest: interest invested in someone else upon termination of
prior state
2. Reversion: Future interest reverts back to grantor
3. Residual Interest: Remaining property interest in an estate, after specific
bequests have been made.

b. Fee Simple Absolute

i. ABSOLUTE OWNERSHIP. Largest estate permitted by law. Invests the holder
of the fee with full possessory rights, now and in the future.
1. Holder can sell, divide, and devise it. If she dies intestate.
a. Ex. When you buy a house, usually own it in fee simple.
2. Heirs will inherit it.
3. Indefinite and potentially infinite duration.
4. Fee alienability
a. Why have alienability
i. Efficiency best use of property
ii. Market value
iii. Long-term view
iv. Redistribution no concentration of wealth
ii. How do you get it? From purchase or inheritance. To A; or to A and his heirs.
1. Can be created through a deed or devise (a will) or (such as a sale)
2. The grantor must deliver a valid deed of conveyance
iii. In a Fee simple:
1. The person gets present and future ownership rights
2. Freely alienable
3. Heritable = itll pass when youre dead
4. It can be reached by creditors to settle a debt
5. No termination date. Its not like you own it but it terminates when you die
iv. To A vs. To A & his heirs
1. Just another way of saying Fee Simple
v. Escheat = If no one survives the deceased, land goes to the State
vi. When you rent a property while still holding a fee simple absolute, the tenant
has an interest in the property and you have a reversion; so when the lease
ends, land goes back to you.

c. Defeasible Fees
i. Fee simple estates of POTENTIALLY infinite duration that can be terminated by
the happening of a specified event.

19
 1. B/c defeasible fees can result in forfeitures, court will construe a purported
limitation as a mere declaration of the grantors purpose or motive for making the
grant.
2. NON-DEFEASIBLE: Ends naturally. Must wait until it ends for the next thing to
happen.
ii.
All 3 categories are subject to early termination before the line of heirs runs out
iii. Three Types of Defeasible Fees:

a. An owner can be divested of interest in land

b. Words of hope, desire, or intention are insufficient to create a
defeasible fee
i. i.e., To A for the purpose of constructing a day-care
center
ii. i.e., To A w/ hopes that he becomes a lawyer
c. In both cases there is a fee simple absolute

1. Fee Simple Determinable (and Possibility of Reverter)

d. Estate that AUTOMATICALLY TERMINATES on the happening of a
stated event and reverts back to the grantor.
i. Dont need to go to court, it just ends
e. How do you create it? (HAS DURATIONAL LANGUAGE)
i. Grantor must use Clear DURATIONAL language
ii. To A, so LONG AS he remains an attorney
iii. To A DURING the Obama administration
iv. To A UNTIL prayer returns to the public schools
v. while
f. Correlative Future Interest in Grantor Possibility of
Reverter
i. B/c grantees estate may end upon the happening of something,
there is a possibility that the land may revert back to the grantor.
FUTURE INTEREST because it becomes possessory only upon the
occurrence of an event.
ii. If the stated condition happens where it is no longer is used for X,
the land reverts back to the grantor
2. Fee Simple Subject to Condition Subsequent (and Right of
Entry)
g. Does Not Terminate Automatically, but rather when a condition
occurs, owner has to act.
h. Created when the grantor retains the power to terminate the estate
of the grantee upon the happening of a specified event. Upon the
specified event, estate continues UNTIL THE GRANTEE EXERCISES
HER POWER OF TERMINATION by bringing suit or making re-entry.
i. Must exercise re-entry for the fee simple to expire. Grantor
could elect not to re-enter even though the conditional event
occured
i. Grantor could elect to retake
i. Must do so in a suit
ii. Cant just walk in there and take it
j. Draconian fee

20
 k. Conditional language
i. Ex. To A UPON CONDITION THAT.
ii. Putting in conditions such as but if
l. Executory Interest: If the property is ever used for other than
church purposes, then to B and his heirs.
m. No objection by the grantor for the broken condition even though he has
the knowledge that the condition is broken is an argument that the grantor
waived the right of re-entry
n.
3. Fee Simple Subject to Executory Limitation (Executory
interest)
o. Estate that upon the happening of a stated event, is
AUTOMATICALLY DIVESTED IN FAVOR OF A THIRD PERSON rather
than the grantor.
p. Future interest in third party, not grantor.
q. Ex. to Church; provided however, that if the premises shall ever
cease to be used for church purposes, title shall pass to the
American heart association.
i. Church has a fee simple subject to an executor interest in
favor of the Heart Association. O does not have a right to
entry because no such interest was reserved in the
conveyance.
ii. Subject to the Rule of Perpetuities.
4. Restraints on Alienation of Property in General:
r. Restrains make property unmarketable
s. Particular land may be made unavailable for its highest and best
use
t. Cannot sell and disincentives improvements on the land

d. Life Estate
i. Estate that is not terminable at any fixed or computable period of
time, but cannot last longer than the life or lives of one or more
persons.
1. May arise by operation of law or may be created by an act or agreement
of the parties.
2. Measured in explicit lifetime terms, never terms of years.
ii. For Life of Grantee: Usual life estate measured by the life of the grantee.
1. May be indefeasible (so that it will end ONLY when the life tenant dies); or
2. May be defeasible (determinable subject to a condition subsequent, subject to an
executor interest)
a. Life estate may end BEFORE the life tenant dies if the limiting condition occurs
b. To A for life, then to B.
c. To A for life, or until she remarries. Life estate subject to a limitation.
d. To B and C after the life of A. Implied life estate.
iii. Pur Autre Vie (Life of Another): measured by the life of someone other than the
life tenant.
1. Can be created DIRECTLY by the grantor.
a. To A for the life of B. As estate ends when B dies.
2. Can also be created INDIRECTLY. To B for life.
21
 a. B later conveys his interest to A. A owns an estate measured by Bs
life; ends when B dies.
iv. White v. Brown
1. P alleges she got a fee simple when her aunt died. In the aunts will it said
her home not to be sold. D alleges that it was life estate.
2. H: S.C. reverses and says its a fee simple because there was not clear
language in the will so there is a presumption that the property was
meant to be passed on a lesser estate. The default is a fee simple unless
otherwise proven
v. Baker v. Weeden (FORCE SALE CASE)
1. F: Weeden grandma wants to sell the land because she is too old to farm
and a highway is running through their land. She has a life estate on the
land and grandchildren who dont want the land sale have a fee simple
after grandma dies
2. Forced Sale:
a. In certain circumstances where there is a compelling consideration,
court could force them to sell the land.

vi. Rights and Duties of Life Tenant Doctrine of Waste

1. Tenant for life = entitled to all the uses and profits of the land; CANNOT do any
act that would injure the interests of the person who owns the remainder or the
reversion. If he does, future interest holder may sue for damages and/or to enjoin.
2. Allowing property to diminish in value
3. Uses of property that fail to maximize propertys value
4. Affirmative Waste = Voluntary
a. Liability results from injurious acts that have more than trivial
effects.
b. Taking the value of the property
5. Permissive Waste = Neglect
a. Failure to take a reasonable care of the property.
b. Duty to make repairs to the property to keep it from being damaged
by the weather, etc.
6. Ameliorative Waste
a. Life tenant must not engage in conduct that will enhance the
premises value. Unless ALL future interest holders consent.

e. Future Interests
i. An estate that does not entitle the owner to possession
immediately, but will/may give the owner possession in the
future.
1. General Rule for Future Interests
a. Classify the present interest
b. Look who has the future estate
c. Think about how the future interest will become
possessory
d. Determine whether the interest is vested or contingent
2. Any future interest that is transferable is also subject to involuntary
transfer
a. i.e. is is reachable by creditors
22
ii. Futures Interests in Transferor (O)
1. Possibility of Reverter: if your future interests exist in O, grantor, could
be the possibility of reverter.
a. Accompanies ONLY the fee simple determinable.
b. A grantor carves out of her estate a determinable estate of the
same quantum
c. i.e. A gives to B, so long as X is never done
i. B has fee simple determinable
ii. A has possibility of reverter

2. Right of Entry (Power of Termination):

a. Accompanies ONLY fee simple subject to condition
subsequent
b. i.e. A gives to B, but if X is never on premises then A can reenter
and take
i. B has fee simple subject to condition subsequent
ii. A has right of entry
3. Reversion: Future interest always retained by grantor
a. Occurs when grantor transfers less than his full interest &
not a vested remainder in fee simple
b. i.e. O grants to A for life
i. O has reversion
c. Follows the natural termination of the preceding estate
d. Reversion is alienable
e. Some reversion will certainly become possessory
i. O to A for life, reversion to O
f. Some reversions will not become possessory
i. O to A for life, remainder to B if B survives A
1. A has life estate
2. B has a contingent remainder in fee simple absolute
3. O has a vested reversion (if B dies before A)
a. Os reversion can be divested by Bs interest
becoming possessory at As death

iii. Future Interests in a Transferee (Someone other than O)

1. REMAINDER
a. A remainder is a future interest in someone other than the
grantor
i. To follow immediately (remainders never wait in abeyance)
1. Can never directly follow a fee simple
ii. After the expiration (remainders never divest another
estate)
1. Can never divest (cut short) another estate
iii. Of a particular estate (remainders never follow a fee simple)
1. Can never directly follow possession by the grantor
b. If all of the 3 criteria above is not satisfied, then its an EXECUTORY
INTEREST
c. Patient future interest that waits for the proceeding estate to end
before it becomes possessory.

23
d. Unlike reversion where it is always retained by the grantor,
Remainder is always created in someone other than the grantor
e. Future interest created in a transferee that is CAPABLE
OF TAKING in present possession and enjoyment upon
the natural termination of the preceding estates
created in the same disposition.
f. Remainders NEVER follow a defeasible fee simple
g. Ex. To A for life, then to B.
i. B has a remainder. B as remainderman is patiently waiting for
the life estate to come to its natural conclusion.
h. Types of Remainders: VESTED or CONTINGENT
i. VESTED Remainders: (1 & 2 Conditions that must
be met)
ii. DEFINITION: A remainder is vested if the remainderman is:
1. Born and
2. Ascertained and
3. No (stated) event need occur before possession
(except expiration of the prior particular estate.
iii. Vested Remainder is one in which the ramaindermans right
to immediate possession is without pre-conditions (except
expiration of the prior estate).
iv. when created in a known taker and NOT subject to a
condition precedent.
1. Has to be given to an Ascertained person: Must
already be born
a. Can fail ascertainment when the grant was for
heirs
2. No requirement must exist that a condition occur
beforehand
3. Subject to open: Threre can be more children born that
reduces the vested interest
4. Examples
a. To A for life, then to B. B has a vested
remainder. He is alive, we are not waiting for
him to be born. No strings attached as
prerequisites to be taken.
b. To A for life, remainder to B and his heirs
i. B takes without further ado once the life
estate ends (no pre-condition)
c. To B for life then to C and her heirs
d. To B for 10 years then to C and his heirs
e. To B for life then to Cs eldest child, nancy and
her heirs
f. To B for life, then to C for life

v. Indefeasibly Vested Remainder holder is certain to

acquire an estate in the future w/ no conditions
attached
1. i.e., To A for life, remainder to B

24
 a. A has life estate
b. B has indefeasibily vested remainder
vi. Vested Remainder subject to open
1. A remainder where one party is ascertainable,
but there may be more at a later date
a. i.e., To A for life, remainder to As
children A has one child but she may
have more
vii. Vested Remainder subject to complete defeasance
(total divestment)
1. Remainder exists and is not subject to any
condition precedent or prerequisite, but his right
to possession could be cut short b/c of condition
subsequent
2. i.e., To A for life, remainder to B, provided that if
B dies under the age of 25, to C A is alive. B is
20
a. A has life estate
b. B has vested remainder subject to complete
defeasance
c. C has executory interest
d. O has reversion

viii. CONTINGENT Remainders:

1. Created in an unborn/unascertained person or is
subject to a condition precedent or both
ix. DEFINITION: A remainder is contingent if ANY of the
following apples:
1. A Stated Event must occur before possession
2. It is conveyed to Unascertained persons
3. It is conveyed to Unborn persons
x. Contingent remainders is one in which the remaindermans
right to immediate possession is subject to a condition
precedent
xi. 3 Ways that a Remainder can be CONTINGENT
1. Subject to occurance of some stated event
remainder to B and her heirs if B marries C
a. Condition: B must first marry C
2. Conveyed to unascertained person remainder to
Bs first child to reach age 21, and his or her heirs.
a. Condition: One of Bs children must reach age
21
3. Conveyed to unborn persons remainder to Bs next
born child and his or her heirs.
a. Condition: Another child must be born to B
xii. Condition precedent if it is a prerequisite to taking

25
 1.i.e. To A for life, if B has reached the age of 21,
to B
a. B has contingent remainder
2. i.e. O conveys to A for life and then on As death
to As heirs
a. A has life estate
b. As heirs have contingent remainder
c. O has a reversion
xiii. You look at this if Vested Remainder is not applicable
xiv. Unascertained person OR Condition precedent
xv. Examples
1. To A for life, then to Bs first child. B has no children.
What does B have? Contingent remainder.
2. To A for life, then if B graduates from college, to B.
3. To A for life, then to B for life, then to C and heirs
a. If C is alive he is contingent remainder
b. If C is dead then there is vested remainder
4. To A for life, remainder to B and heirs if B marries C.
a. B doesnt get possession unless something
happens first (shs got to marry C)
5. To B for life then to Cs heirs
a. Nobody has heirs until theyre deceased. Living
persons have only heir apparent. As long as C is
alive, Cs actual heirs are unascertained
6. To B for life and then if C survives B to C and his heirs
a. Surviving the prior estate holder is probably the
most common type of stated event found in
contingent remainders
7. To mu wife Sarah for life, then to my first grandchild
a. If the grantor doesnt have any grandchildren
yet, this would be a contingent remainder to
unborn person
2. EXECUTORY INTERESTS
a. DEFINITION: An executor interest is:
i. A Future interest
ii. In someone Other than the grantor
iii. Having One or more of the following features
1. It directly follows a fee simple and/or
2. It divests (cut short) the prior estate and/or
a. A gap such as To K for life, then one day after
Kens death to D and heirs. The gap cuts short
the prior estate. The gap also follows a fee
simple since the estate must revert back to the
grantor. It also then directly follows possession
by the grantor
3. It directly follows possession by the grantor
b. Elements
i. No preceding estate
ii. Follows a fee simple

26
 iii. Does not follow the natural termination of the
preceding estate
c. Take effect by cutting short another or benefitting from anothers
forfeiture
d. Remember: If it is a future estate, and it is not a remainder (b/c
the preceding estate is not a life estate) then it must be an
27xecutor interest!
e. EX To E and his heirs beginning from and after my death
i. The grantors retained present interest after he has conveyed
would be a fee simple on executor limitation
f. Types of Executory Interests: SHIFTING or SPRINGING
i. SHIFTING INTEREST: Always follows a defeasible fee.
1. Future interest of a fee simple subject to executor
limitation.
2. Property that goes from a GRANTEE to a GRANTEE upon an
occurance or a condition
a. Notice its not from grantor to grantee but rather from
grantee to grantee
b. Looking for a condition that cuts another grantees
interest
c. Both grantees have a shifting executory interest
3. Cuts short someone other than O
4. EXAMPLES
5. Ex. To A but if B returns from Canada next year, to B.
a. Potentially limited time for A (not for life). Could be
rudely interrupted by B when he returns from
Canada.
b. A has a fee simple (defeasible fee) subject to Bs
shifting executor interest.
6. Ex. O conveys to A for life, remainder to B and his heirs, but
if B predeceases A, to C and his heirs. Cs interest does not
await the expiration of Bs vested remainder but instead
may cut it short.
7. i.e. O grants to A, but if A is not survived by children
at her death, then to B
a. A has fee simple subject to shifting executory
interest
b. B has a shifting executory interest
8. i.e. O grants to A for life, then to B & Bs heirs, but if
C gives A a proper burial, then to C
a. A has a life estates
b. B has a vested remainder subject to a shifting
executory interest
c. C has a shifting executory interest

3. i.e. O grants to A for life, then to B for life if B graduates from law
school, then upon Bs death to C
a. A has life estate
b. B contingent remainder in life estate
c. C has a shifting executory interest
1.

27
 ii. SPRINGING INTEREST: Cuts short O (the grantor)
1. DEFINITION: A future interest that causes possession
of a freehold to spring out of the grantor, that is, if
the possession directly follows possession by the
grantor.
2. Go from grantor to grantee. From O to grantee upon a
condition or an occurance
3. Follows a gap in possession or divests the estate of a
transferor
4. EXAMPLES:
5. O conveys to A if and when he marries.
a. A has a springing an executor interest.
b. A has the power to cut short O.
c. To A and heirs when A graduates from law
school
i. As interest springs and takes his interest
from grantor
ii. A has future interest if he is currently a
law student but not present interest
6. i.e. O grants to A one year from my death
a. A has springing executory interest
b. Os heirs have fee simple subject to a springing
executory interest
7. i.e. O grants to A & As heirs when A gets married
a. A has springing executory interest in fee simple
b. O has fee simple subject to springing executory
interest
8. To L for life, then one day after Ls death to E and her
heirs
a. A gap after the particular estate
9. To E and his heirs beginning 2 years from the date
hereof
a. No intervening particular estate
10. In 2 above examples, the executor interest causes
freehold possession to spring out of the grantor long
after the conveyance itself is complete
11.
4. Differences Between Executory Interests and Remainders
a. REMAINDER:
i. Must follow a fee simple (cant shift or spring)
ii. Divest a prior estate
iii. Directly follow possession by the grantor
b. Executory interests = not destructible; contingent remainders =
can be destructible
c. Executory interests = not considered vested; contingent remainders
= can become vested

PRESENT FUTURE FUTURE

FORM INTEREST INTEREST INTEREST
A O B
O to A (+ heirs) Fee None
28
 Simple/Absolute
O to A for life Life Estate Reversion
O to A for life, Life Estate None Remainder (vested)
then to B
O to A for life, Life Estate Reversion Remainder
then to B, but only (contingent)
if B has graduated
from college
O to A for life then Life Estate Reversion (during Springing
to B, five years the gap period) Executory Interest
later

Reversion: When a grantor gives away less than they own

- ELEMENTS:
o A future interest
o Retained by the grantor
o To follow a particular estate
o When the particular estate expires
- Reversion never Divest (cut short) the preceding estate. They take effect when
the particular estate expires
- All the grantor has to do to create a reversion is convey a LESSER quantity of
ownership ( in duration) than he has.
- Reversion automatically arises whenever an owner convers a lesser quality of
ownership than she has.
- EX: To A for Life. When there is no one else that it mentions the property would
go to after As death, the property goes back to the person who gave A the life
estate
- EX2: To B for 5 years is another example
- To A for life then to B and heirs if B survives A
o A has it for life, B and heirs get fee simple but if B does not survive A, then
it goes back to the original person

Future Interest in 3rd parties:

3 Categories
Vested
- EX: To A for Life, then to B
- To A for Life, then to B and his heirs

Mahrenholz v. County Board of Trustees

o There was a deed that stated land to be used for school purposes only,
otherwise reverts to grantors. The reversionary interests in the land was
troubled.
o H: Inclusion of the word Only in the granting clause of the fee simple in the
deed created a fee simple determinable
Mountain Brow Lodge v. Toscano
o Lodge was conveyed with 2 restrictions. First is for use and benefit of the
lodge and the other is that if there is a sale or transfer, it will revert to the
grantors which is the Toscanos or their heirs
o You cant when convey something to do so and restrict the other side
completely
o Toscano claims: A fee simple condition subsequent was created while the
lodge claims that it is an absolute restrain on their power.

29
 o Court said the forfeiture clause is gone
o H: The grantor cannot place a restraint on alienation because it is an
essential stick in the bundle, however a restriction on the use of the land is
not a restraint on alienation even if that is its effect; lodge 82 may sell their
land to whomever they like, but only they can use it; distinction by the way,
is restriction on land use and alienation
o COURTS WILL LOOK AT
Courts will look at the percentage of possible buyers that are
eliminated because of the restraint
Courts will also look at whether it discourages improvements

Inheritance

iv. Property passing at the owners death to the heir or those

entitled to succeed.
v. Largest single source of wealth in the US today.
vi. Why do we allow it? Incentivize people to generate wealth, property creation.
1. Labor Theory: you worked for it, should be able to keep it in the family and
give to whomever you want
2. Opponents: Continues perpetuation of wealth among a class of people.
vii. Vocabulary:
1. Decedent = dead person
2. Testator/Testatrix = decedent before they are dead
3. Intestate = when you die without a will
4. Primogenitur = first born son inherits estate
5. Heirs = next of kin
a. Heirs inherit when there is NO will.
b. Order of Heirs (Rules of Descent):
i. Surviving Spouse, heirs
ii. Issue/Descendants
30
 1. Issue = children, grandchildren, great-grandchildren
2. Anyone in direct line of descent
iii. Ancestors
1. Parents
2. Grandparents
iv. Collaterals (everyone else)
1. Next of kin, siblings, aunts, uncles, etc.

II. Land Use Planning

a. Zoning
i. Zoning = division of a jurisdiction into districts in which certain
uses and developments are permitted or prohibited.
ii. The ultimate goal is to maintain property values by having similar uses in
same areas
iii. Covers how tall you can build, how far from neighbor, etc.
iv. State may enact statutes to reasonably control the use of land for the protection
of health, safety, morals, and welfare of its citizens.
v. Zoning power is based on the police power and is limited by the Due Process
Clause, Equal Protection Clause and 5th Amendment.

vi. The Rise of Zoning

1. Zoning Apparatus
a. Comprehensive Plan
i. Should anticipate future issues
ii. States gov.s objectives and standards for
development
iii. Regulations inconsistent with plan, not necessarily
invalid.
2. Village of Euclid v. Amber Realty (US 1926)
a. F: Euclid created ordinance dividing and restricting the land up for different
purposes.

31
 i. P tract of land under multiple classifications. Upset that value of
property has been diminished b/c it has been zoned as residential.
Now cannot sell to any industry.
b. I: Is the citys ordinance a violation of the 14th Am Due Process? Right to
Property and unreasonable use of police power?
c. H: Police power of the state to make regulations. Within the public interest
and safety to have zoning. Incidental exclusion of non-harmful industry
not enough.
i. Government zoning is almost NEVER a physical taking of
property but rather just a regulatory prohibition or limitation
on certain uses of private property. As a result, the property
owner's taking claim will have to be a regulatory taking
claim.
ii. Court said Zoning is similar to Nuisance control
3. Police Power of the State: 10th Amendment. Power of the state
government to regulate the health and welfare of the state.

4. PA Northwestern Distributers v. Zoning Hearing Board

a. F: A town is outraged when a adult toy store opens up so they pass zoning
so the store is forced to close. They give the store 90 days to come to
compliance. Store doesnt want to com
b. Prior non conforming use
i. When a person is obeying the zoning law then new ones come in
and now theyre not abiding
c. Question is whether this is constitutional
i. Court LOOKS AT
1. THE TIME PERIOD (90 days might not be enough)
a. So that the company can recoup losses
2. Nature of the present use
3. Prospects for development
4. Beneficial use in the community weighed vs. losses to the
company
d. Court says there is a general presumption of validity but where there is a
vested property right, the court will generally require some type of
amortization
i. You cant just wipe out the company without at least compensating
ii. There is a per se constitutional right to continue to use unless its
against other laws
iii. COURT SAYS: ITS OK TO RESTRICT FUTURE USES AND PHASE
OUT USES

5. Aesthetic Zoning
a. Berman v. Parker (US 1954)
i. F: Entire neighborhood condemned to be torn down. P had an
operational store in the neighborhood and challenged citys
ordinances to bulldoze.
1. Taking a property from one businessman and giving it to
another businessman
ii. H: Taking of the property for re-development was not
unconstitutional.

32
 1. 5th amendment does not limit the congress power to take
property, as long as it is compensated for.
2. Although that particular store was not unsafe, court said
that aesthetics was a sufficient reason to condemn a
neighborhood.

6. Inclusionary Zoning (forces types of housing in certain

areas)
a. Opposite of exclusionary zoning.
b. In every residential area, you must have 10% of low income
housing
c. Towns will bargain with builders to make this happen
d. Ex. Put in more buildings than density requirements may allow

III. Private Land Use Controls: Easements, Profits, Covenants and Servitudes
a. Servitudes
i. Refers to a family of non-possessory interests

b. Easements
i. An easement is a grant of an interest in land that entitled a
person to use land possessed by another
ii. Holder of an easement has the right to USE a tract of land for a
special purpose, but has no RIGHT to possess and enjoy the tract
of land.
1. Usually created in order to give their holder the right to access across a
tract of land.
iii. Restatement Third of the Law of property defines Easement as:
1. an easement creates a non-possessory right to enter and use land in the
possession of another and obligates the possessor not to interfere with the
uses authorized by the easement
iv. Easement is a non possessory right and gives the right to use or enter a land
owned by another person
v. Property Rights: Can be inherited. Most held in fee simple (but dont have to be).
vi. Typically no expiration date (unlike leaseholds). Granted for a specific purpose.
vii. Generally Express Easements must be in writing with some exceptions such as
prior use, etc.
viii. Easements will pass to other/owners both on benefited and burdened side

ix. Types of Easements:

1. AFFIRMATIVE: Right to do something on servient land (most common)
a. Entitles its holder to come upon the land of another for a limited
purpose.
b. Owner of easement has a right to go onto the land of another and
do some act
c. EX: O grants A right of way across Os property; A has an
affirmative easement
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 2. NEGATIVE: Allows holder to prevent its servient owner to do something
otherwise permissible on OWN property.
a. It gives its holder the right to prevent an owner of land from using
own land in certain ways that would otherwise be permitted.
b. Usually allowed only in 4 Categories:
i. Light, air, support, stream water from artificial flow, scenic
view
ii. Ex. Used often in conservation situations. Historical houses,
etc.
3. APPURTENANT (MAJORITY ): When the right of special use benefits the
holder in his physical use or enjoyment of another tract of land.
a. The benefit of the easement flows to adjacent land
b. Must have 2 tracts of land: dominant (enjoys the benefit) and
servient (subject to the easement right)
c. Benefit passes with transfers of the benefitted land, regardless of
whether the easement is mentioned in the conveyance.
d. EXAMPLE:
i. A and B are neighbors. A has access to lake but B does not. A
can give an easement to B to allow him to walk onto As
property to get to the lake. If A sells his house, the easement
will stay with the land and B will continue to have access.
4. IN GROSS: Attaches a particular right to an individual rather than to
property itself.
a. The benefit flows to an individual
b. Gives its holder some personal or commercial advantage not
related to his use or enjoyment of the land.
c. Servient land is burdened but there is no dominant land.
d. Deriving a purely personal or financial gain
i. Ex. Right to use billboard on ones lot; fish/swim in anothers
pond
e. EXAMPLE:
i. The electric, oil, Gas Company has an easement in gross in
order to run lines or pipes under your house. They dont own
the land but they hold an easement for their commercial
benefit.
f. Often considered irrevocable for the life of the individual, but can be
revoked if individual sells property that grants him or her that
easement.

x. Creation of Easements (Transferability)

1. Express/Written Grant (best way)
a. Must be in writing and signed by the grantor statute of frauds
applies.
i. Deemed to be perpetual duration unless grant specifically limits
b. Willard v. First hill church
i. F: P. sells land to another person under the condition that the
church will use the land for parking during church hours. He
then sells to another person without telling him about the

34
 easement but rather just briefly mentions the church parking
issue. He tries to place a quiet title on the land so church
cant use it.
ii. H: A grantor may in a deed to real property reserve an
interest in that property for third parties
iii. D: The court give effect to the intent because we dont want
the parties to try to change things after it is convenient but
rather what the people intended at the time
1. This is a minority rule
2. Most jurisdictions dont allow easements for
benefit of a third parties

2. Prescription
a. An easement can be acquired by an adverse use for a
requisite period
b. May be acquired by meeting the elements of adverse possession.
i. Continuous use for statutory period
ii. Open and notorious
iii. Actual use
iv. Hostile use
c. Prescriptive Easement = judicially created
d. Adverse Possession = Statutorily created
e. Ex. Golf Courses: golfers need to get their balls back. Conrad
Hilton sues country club.
i. Court held that golfers DO have a prescriptive easement to
get balls on Hiltons property.
ii. He couldve put up a sign saying, golfers welcome and it
wouldnt be a prescriptive easement.
f. Public Prescriptive Easement:
i. Long continuous use by the public under a claim of right.
ii. Owner put on notice.
iii. Beaches: People go across property for a number of years
and establish.
1. Different treatment based on state.
2. Prescriptive Easement (NC)
3. Customary Right (FL, OR, TX, HI)
4. Public Trust (NJ)

3. Implied by Prior Use

a. Easement implied from existing use or necessity.
b. Created by operation of law NOT by written instrument (exception
to Statute of Frauds)
c. Factors court will look at before declaring easement by prior
use
i. There must be one or more tracts that are divided
1. Must find a time in the past when the two parcels, the
one for which she now claims an easement and the
one over which she is claiming, were owned by the
same person

35
 ii. The easement exists at the time of the division
1. Court can reasonably infer that the parties intended
the easement to continue
a. The courts sometimes look at the price paid in
order to examine the intent portion
iii. The previous use (easement) was apparent (Apparent means
more like even if you dont see it you assume it is there. EX:
You assume every house has a flushing toilet)
1. The owner made a regular and apparent use of the
benefit
iv. Easement has to be continuous
v. Easement has to be reasonable necessity (Difficulty, Cost)
1. Continuance of the prior use must be reasonably
necessary to the use and enjoyment of the dominant
parcel
d. Types of Implication Easements:
i. IMPLIED FROM EXISTING USE (Quasi-Easement): exists
when an original owners land is subdivided in a manner that
makes one portion dependent on the other.
ii. NECESSITY: When owner of tract sells part of land and by this
division deprives one lot of access to a public road or utility
line.
e. Van Sandt v. Royster (KS 1938) PRIOR USE
i. F: Van Sandt, discovered that his basement was flooded with
sewage and brought action to enjoin Royster from using and
maintaining the underground sewer. The pipe crossed a single
property encompassing both lots and the adjacent lot in 1904 that
was owned by Bailey.
1. D drained and discharged sewage underground, across Ps
land.
2. Quasi-easement, used to belong to owner before land
transferred to subsequent owner.
ii. R: an easement is implied to protect the probable expectations of
the grantor and grantee that a prior existing use will continue after
the transfer. Thus, where the grantee is aware of a reasonably
necessary use of the grantees property for the comfortable
enjoyment of the grantors property an easement by implication is
created.
1. P brings suit to enjoin D from maintaining sewer.
iii. H: grantor who wants to reserve some rights to the land must
expressly lay it out in the grant. In this case, Bailey sold to Murphy
who sold to Royster.
iv. Easement by implication was made. P should have known about it.
v. Knowledge Mechanism: Known or should have known test.

4. Necessity
a. Othen v. Rosier (TX 1950) NECESSITY
i. F: Hill sold parcels of land to Othen and Rosier. Rosier puts up fence
and levee to block the way. Othen is landlocked.

36
 1. Othen says needs the path in order to enter and exit and it
was an easement prior to Rosier arriving.
a. Othen claims either easement by necessity or
prescriptive easement.
2. Court asked whether it was NECESSARY for Othens to go
across the plot when Hill sold the property (prior to the
levee?).
a. No could have gone around it.
b. Therefore could not prove easement by necessity.
3. Easement by necessity = implied ONLY when land is
divided. Must exist when the tract is severed. Implied
only over that portion of the divided tract that blocks
access to a public road from the landlocked parcel.
4. 3 PART TEST (pg. 835)
a. 1) There must be an absolute necessity and not just
convenience
b. 2) there has to be a dominant and servient estates
c. 3) must have existed at the time when the dominant
and servient estates were severed
5. EASEMENT BY PRESCRIPTION GOES THROUGH THE SAME
TEST
6. Not prescriptive easement either because he had
permission by the previous owner before. Therefore not
hostile use.
7. Othen loses on both arguments.
a. NO ADVERSITY. NO EXCLUSIVITY.
b. Graveyard Right: You have a right to cross someones adjoined
property to get to the cemetery.
i. Rare instances in easement in gross that continues today.
c. Changed Uses: Does the grantees original easement survive if
the property use is changed? Depends..
i. Ex. Apple orchard turned into a parking lot.
ii. Test: Have to look at the reasonable foreseen use at the
time. Easement by implication is your best bet though.

5. License
a. Begins with licensee that improves property
b. License can be oral or written
c. Gives permission to do something which without it would be
trespass
d. In general Licenses are revocable unlike easements (ex: Movie,
airline ticket)
i. 2 exceptions:
1. Once a license is coupled with a property isnt
revocable
a. EX: Taking timber from land. Youre going to
own the timber. Logic is when you pay for a
license you are ultimately purchasing the timber
due to licensing fees
2. When a license becomes revocable under the rules of
estoppel
e. Holbrook v. Taylor (KY 1976)
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 i. F: Taylor improved roadway with $100 of gravel.
1. Uses road for 5 years via license.
2. Dispute b/w families. Holbook demands $500 to use
roadway.
3. Claimed right through prescription or by estoppel.
4. Court
ii. H: Right to use roadway established through estoppel.
1. Began with a license
2. Licensee improved property.
3. In this case, NOT prescription because was no continuous,
uninterrupted use. No adverse because he had a license.
4. Permission to use initially = not hostile use (required by
prescription).

xi. Scope of Easements

1. Written: limited to written description
2. Prescription: Based on use during prescriptive period
3. Implication by Prior Use: Nature of prior use (plus reasonably
anticipated uses)
4. Changed Use: one of the more highly litigated subjects regarding
easements.
5. Presault v. U.S. (1996) Change in Scope
a. F: Rails to Trails sites converted railway trails into hiking trails.
i. Change of use trains to hikers
ii. Railway has good written easement, allows rail traffic to go through
property.
b. What is scope of easement? Only trains? Was it abandoned when property
changed to a hiking trail? Trains removed 25+ years ago.
c. H: Court said different than original scope. Easement was abandoned.
d. Therefore, unauthorized use under 5th Amendment without just
compensation.

xii. Termination of Easements

1. Written: expiration by its terms
2. Implied: as soon as necessity ends.
3. Estoppel: servient estate owner puts up a barricade and no one
challenges it.
4. Abandonment: easement holder must show by physical action the intent
to never use the easement again.
5. Prescription: servient owner may extinguish the easement by interfering
with it in accordance with the elements of adverse possession.
6. Merger: Two parcels (dominant and servient) become owned by the same
person
7. Condemnation

c. Profits (a Prendre)
i. Rights to take off the land things that were thought of as part of the land
1. Timber, minerals, wild game, and fish

d. Licenses
i. A privilege to enter anothers land for some delineated purpose

38
 ii. Via oral or written permission. Licenses are NOT subject to the statute of frauds
1. Tremendously informal device
iii. Allows licensee to do some act otherwise would be a trespass.
iv. Are freely revocable at the will of the licensor unless estoppel applies
1. Only when licensee has invested substantial $$ or labor in reasonable
reliance

e. Covenants
i. A promise to do or not do something regarding the use of land.
ii. Types of Covenants:
1. RESTRICTIVE COVENANTS: Promise to refrain from doing something
related to land
a. Ex. I promise not to paint my shutters brown.
b. Negative easement restrictions = more narrow than restrictive
covenants.
2. AFFIRMATIVE COVENANTS: Promise to do something related to land.
a. Ex. I promise to paint our common fence.
iii. Is Promise a covenant or equitable servitude?
1. P wants $$ damages = covenant
2. P wants injunction = equitable servitude (easements, licenses, profits)
3. Easement = property interest
4. Covenant = burdens property
iv. When does the covenant run with the land?
1. When it is capable of binding successors
2. Elements: (start with the claimant)
a. Running of Burden to Run:
i. Writing (original promise was in writing)
ii. Intent (original parties intended that the covenant would
run)
1. The original parties intended to bind the covenanters
successors
2.
iii. Touch and Concern the Land (promise must affect the
parties as landowners and not simply as members of the
community at large)
1. Requires the real covenant to relate to the
covenantors use of his land
2. Changed circumstances might invalidate touch and
concern
3. This is a balancing test weighing the benefit and
burden while maintaining a bias towards efficient uses.
4. Effects on the value of the land. EX: you cant use it
for commercial purposes will meet the burden since
the burden of it is low
iv. Notice (must have had notice of promise when she took)
1. At common law no notice requirement
2. Now, recording acts effectively impose a notice
requirements since covenants must be recorded

39
 3. Subsequent buyer of promiser of land must have
notice (actually know or constructive notice (EX:
recorded for you to see))
v. Privity (both H & V needed for burden to run, only V for
benefits)
1. HORIZONTAL = connection b/w the original parties.
a. Relationship between the benefited and
burdened parties
b. Most courts require the covenant to be created
simultaneously with a transfer of interest in the
land
2. VERTICAL = Nexus between A and A1
a. Relationship between the original party and
successor
b. Relationship between the convertor and the
subsequent land owner
c. Succesor must acquire the same interest that
his predecessor had
b. Running of the benefit:
i. Intent
ii. Vertical Privity is required but relaxed (No Horizontal Privity
required)
iii. Touch and Concern
iv. Dont have a Notice requirement
v. Rationale: Landowners want to ensure that the use for their neighboring
parcels will be constant with each other. Want something more reliable than a
contract and less cumbersome than a contract. Imagine having 1600 lots with
1600 signatories. Who would sue to enforce it? Would be very difficult.
Covenants = most practical way to do it.
vi. Benefits and Burdens under Restatement
1. H Burden; H = Benefit; V Burden or Benefit
2. Negative/Restrictive Covenants
a. Benefits and burdens bind all owners/possessors
b. Treated like easements. Run to successors b/c interests in the land.
3. Affirmative Covenants
a. Transferees: benefits and burdens bind.
b. Lessees:
i. Benefits: maintenance and others
ii. Burdens: only if more reasonably performed by possessor
c. Life Tenants: benefits and burdens bind.
d. Adverse Possessors: Burdens, but few benefits.
vii. Tulk v. Moxhay (1848)
1. F: P sold Leicester Square with restriction that it be maintained as a public garden.
40 years later Moxhay sought to build upon the land on the square. P brought a
bill for injunction to stop construction.
2. H: Court make peculiar economic argument: if you dont do that, you allow
someone to sell the land for a lot more money b/c covenant is not on it.
a. Creates idea of equitable servitude.
b.
3. EQUITABLE SERVITUDE
40
 a. Unlike covenants, they dont have to be in writing

viii. Neponsit Pro. Owners v. Emigrant Indus. Sav. Bank (NY 1938)
1. F: First Homeowners Association (affirmative covenant) beach community.
Assessment fee that ran with the land to maintain the surrounding area was
never paid. Bank repossessed home and refused to pay it said did not run with
the land.
2. I: Is bank obligated to pay the assessment fee?
3. H: Covenant is enforceable on subsequent owners (bank) b/c the money
payment touches and concerns the land and HOA has vertical privity
despite not owning any property (represents all the homeowners).

ix. TOUCH AND CONCERN:

1. Covenant has to be related to the land
2. Has to alter the legal relations of land owners
3. As long as there is an economic impact
4. Promised performance must benefit covenantee and successors in their
USE AND ENJOYMENT of the benefitted land.
5. Payment of $$ touches and concerns the land (HOA)
6. Expansion?
a. Restatement disregards touch and concern
b. Instead, default rule that covenant is valid. Freedom of Contract.
c. Distinguishes between invalidity at the inception of the covenant
and subsequent invalidity due to changes.
x. Restrictive Covenants and Private Land Use Controls
1. Shelly v. Kraemer (US 1948) Private Restrictive Covenant
a. F: Restrictive covenant against black couple from owning property
in a given area where most neighbors had a covenant that no black
person could move in for 50 years.
b. I: Is the restrictive covenant permissible under the 14 th
Amendment?
c. H: No, denies the petitioners equal protection under the law
i. While this is a private agreement, the state has chosen to
enforce a discriminatory covenant and thus be involved.
ii. The court says the covenants are valid but not enforceable
by the court
2. Residential Restrictions & Group Homes
a. To prevent group homes you can have covenant for only single
family homes.
i. Been subject of considerable litigation.
3. Unclean Hands: If you are guilty of violating the same covenant you
are trying to enforce, court will not enforce against someone for violating
a similar restriction.

4. Common Interest Communities

a. Condominium
i. Interior = fee simple
ii. Common areas = tenancy in common
iii. Monthly charges for upkeep
iv. Mortgage on individual unit

41
 v. Will adopt rules and regulations that people vote on
b. Cooperative (Co-op)
i. Land and Building = fee simple in corporation
ii. Co-op boards can be VERY selective. Occupation is NOT protected.
1. Have a lot of leeway to set rules on who can join/occupy
iii. Occupants
1. Own shares of corporation
a. Number of shares based on size of unit
2. Long-term lease from corp.
iv. Underlying Mortgage
1. Apportioned to residents based on shares
2. Amount you owe to the association is based on your number
of shares (unit size)
3. Mortgage is on the building and split among the residents
v. Monthly Maintenance Fees
1. Building Mortgage
a. Principal (not tax deductible)
b. Interest (can be tax deductible)
2. Property Taxes
3. Building Upkeep:
a. Maintenance
b. Insurance, management fees
c. Repairs
d. Reserve
c. Homeowner associations
i. Rely heavily on covenants. (Just like condos)

d. Nahrstedt v. Lakside Village Condo Assn (CA 1994)

i. F: P purchased condo, which had a restriction against pets. P
wanted to keep her cats.
ii. I: Can the restriction be changed to allow P to keep cats?
iii. H: Burden of the restriction must outweigh the benefit
afforded to all in order to get rid of restriction.
1. Court distinguishes b/w 2 types of restrictions.
a. Restrictions set forth in declaration or master deed of
the condo (presumed valid)
b. Restrictions made by the governing board of the
condo
2. Court concludes b/c the stipulation on the cat was in the
deed presumed valid.
e. Standard of Review
i. 40 West 67th St. Corp. v. Pullman (NY 2003)
1. Business Judgment Rule
a. F: Neighbor was crazy and made many excessive
fraudulent complaints about upstairs neighbor.
b. I: Does board have the ability to kick D out of co-op?
c. H: Yes. Less judicial scrutiny of actions of co-ops.
i. As long as board is acting within authority and
advance purpose of co-op within its
authority and in good faith.
ii. Just need to make sure it is legitimate
iii. Lower standard of reasonableness with co-
ops.

42
 ii. Examples of Regulations that deal with Private
Associations:
1. Condos that ban flags = NOT OK
a. Federal legislation that outlaws the ban of US flag.
2. Bans on signs or lights in front of home
a. Xmas lights are an aesthetic regulation = usually
legitimate
3. Bans on running day care program outside of home
4. Smoking bans = usually OK. Nuisance, public safety, etc.
iii. Gated Communities: typically communities provide tradition
state services but are run by private organizations.
1. Case tried to impose state actor status but was not upheld
by the courts.

IV. Leaseholds
a. General
i. Leasehold is an estate in land. They are nonfreehold
ii. Leasehold Interests:
1. Term of Years: Determinable (similar to a fee simple determinable); any fixed
period.
2. Periodic Tenancy: notice period of termination (typically month-to-month lease
is usually a months notice)
3. Tenancy at Will: establishes a known set income; no fixed period that endures so
long as both landlord and tenant desire; much less secure land arrangement

b. Term for Years

i. Lease for a fixed period of time (could be more or less than a year).
ii. CREATION: Usually created by written leases because a term of years more
than one year MUST be in writing because of statute of frauds.
iii. TERMINATION: No notice is needed to terminate (because the term of years will
tell you from start to end)
1. Automatically ends on its termination date.
2. Death of landlord has nothing to do with termination

c. Periodic Tenancy
i. Lease continues for successive intervals until landlord or tenant
gives proper notice to terminate (open ended)
ii. Fixed duration that continues until someone gives notice
1. Ex. To T for month-to-month OR year-to-year OR week-to-week.
iii. Automatically renews unlike Term of Years where it will expire at the
time lease ends
iv. CREATION:
1. By Express Agreement (Landlord leases to Tenant from month to month)
2. By Implication (if lease has no set termination but does provide for the payment
of rent at specific periods).

43
 a.
b. Ex. Landlord leases to Tenant at a rent of $1000 payable monthly in
advance.
3. By Operation of Law: If tenant for years remains in possession after the
termination of his tenancy period, landlord may elect to treat tenant as period
tenant on same terms of original lease. OR if the lease is invalid (ex. SOF) and
tenant still goes into possession.
v. TERMINATION: Notice required. Period tenancy is automatically renewed until
proper notice is given by either party.

d. Tenancy at Will (Rare)

i. Tenancy for no fixed duration
ii. Endures for as long as L or T desires.
iii. Both parties have the right to terminate whenever they want
iv. Ends at the death or termination by one of the parties
v. While it might be terminated by either party at any time, usually requires notice.
vi. Garner v. Gerrish (NY 1984). Tenancy at Will or Life Tenancy?
1. F: Donovan leased home to Gerrish with the lease stating the end day
would be a date of Gerrishs chosing.
a. Executor of estate tried to kick Gerrish off the premise, claiming
tenancy at will with termination upon Donovans death.
2. I: Is a lease that grants the tenant the right to terminate the agreement at
the date of his choice create a determinable life tenancy (only lessee can
terminate) or a tenancy at will (either landlord or tenant could terminate)?
3. H: terms of the lease establish a LIFE TENANCY terminable at the will of
the lessee.
a. This lease did not fix into any box so court thought it was closest to a life
estate.
4. D: Court says look at the intent at the time of contract of the parties
a. Given the facts in front of the court, they said

e. Tenancy at Sufferance: Holdovers

i. Arises when tenant has wrongfully held over (remained in
possession) past the expiration of the lease.
ii. Landlord has 2 choices:
1. Terminate the lease and Evict the tenant
2. Consent to the tenant: Let the tenant stay (usually a tenancy at will)
a. Could be express (in writing) or implied (not kicking them out)
iii. States vary in their treatment of holdovers.

f. Selection of Tenants
i. Fair Housing Act of 1968
1. Prevents housing discrimination in many different categories
2. Related to housing only. (civil rights act was largely forgotten in housing
situations)
ii. Statute v. Common Law
1. Statute: straight forward; dont have to wait for decision from the court.
However, cases are not binding.
2. Common Law: Court can change the rule with a new case.

44
 iii. Civil Rights Act of 1866
1. Inherit, purchase, lease real and personal property
2. Intentional or purposeful discrimination
3. No exemptions
iv. *See notes for chart*
v. Discrimination
1. Handicap: Is included under the FHA. Cannot discriminate if handicapped
individual wants to live in your building.
a. Newer buildings HAVE to install accommodations.
b. Ex. HIV (or any disease) = handicap; drug addiction = not a
handicap
c. Mental illness more fact specific. Cannot be a danger to others.
2. Religion: Cannot discriminate
3. Sexual Orientation: no federal law against discrimination, but many states
do protect
4. Family Status: can limit and say: maximum of two tenants. Family status
different from marital status.
a. Family status = protected
b. Marital status = not protected
5. Occupation = NOT protected.

g. Delivery of Possession
i. Hannan v. Dusch (VA 1930). (kicking a tenant out)
1. F: D leased land to P; however land already had tenants which D did NOT
oust.
2. I: Is the landlord required to oust trespassers and wrongdoers on
land to have it open for entry by tenant at beginning of term?
3. Court follows the American Rule
a. Majority of jurisdictions use the English rule
4. H: What is the legal duty in regard to ousting a former tenant?
a. English Rule (MAJORITY): Landlord. Only person to have the
ability to evict. Implied covenant requiring the lessor to put the
lessee in actual possession.
i. In every lease, there is a covenant that the property will be
available to the next person
ii. Look at this criteria
1. Tenant expectations
2. What value left for the tenant?
3. Landlord in the best position
a. They are likely to know that this tenant is likely
to be troubling
b. They are the only person that can evict before
the new lease starts
c. Landlord knows all of the facts
4. Tenant is in a poor position to deal with a holdover
b. American Rule (MINORITY): Lessor has no legal duty against
trespassers. Just required to deliver LEGAL possession, not ACTUAL
possession.
i. The lessor has to deliver legal possession but not actual
possession
45
h. Assignments and Subleases
i. Sublease: conveyed partial interest to a second tenant.
1. Concerns the INTENT of the parties
2. Possible reversion to T
3. Privity of Estate: L and T, T and T1
4. Privity of K: L and T, T and T1
a. L and T1 if T1 assumes covenants
5. L CANNOT collect rent from T1 (usually)
ii. Assignment: Convey full interest to a second tenant
1. Leases no interest in T
2. Privity of Estate: L and T1
3. Privity of K: L and T;
a. L and T1 if T1 assumes covenants
4. L can collect rent from T1
iii. Privity: voluntary transactional relationship between two or more people
or entities
1. Leases typically give rise to both privity of contract and
privity of estate.
2. Privity of Contract:
a. Contractual relationship parties
b. Exists until terminated or novated (lasts for awhile!)
c. Created when an assignee assumes covenants in original lease
3. Privity of Estate:
a. Invented when privity of contract wasnt enough (when rent wasnt
paid)
b. Constructed notion of shared rights of possession of property
c. Exists between L and any person with a possessory interest (T, T1)
d. Lasts only while possessory interest exists.
iv. Kendall v. Ernest Pestana Inc. (1985) Landlord Consent to
Assignment
1. F: Provision of lease prohibits sublease.
2. I: Can lessor unreasonably and arbitrarily withhold consent of an
assignment on a commercial lease?
3. H: Consent can only be withheld where the lessor has a
commercially reasonably objection to the assignment.
a. Necessity of permitting reasonable alienation.
b. Minority view in growing # of states. Policy:
i. Shortage of residential and commercial space
ii. Landlords interests are still protected because original tenant still
liable.
c. Majority View: Landlord can deny sublease for any reason.
v. Novation: Contractual substitution of one party for another, including
discharge of substituted partys obligations.
vi. Subrogation: substitution of one party for another in terms of a legal right or
remedy.
vii. Reasonable Grounds for Refusal:
1. Suitability
2. Financial Responsibility
3. Illegality of use of property.
viii. Residential v. Commercial
46
 1. Landowner has more ability to prevent assignment at own discretion for
residential
2. More personal, care more about who is living in a HOUSE
3. Cant violate the fair housing act or anti-discrimination laws

V. Landlord-Tenant Disputes, Duties and Rights

a. Tenants Duties
i. Duty to Pay Rent
1. T breaches the duty and is in possession of the premises
a. Landlord can evict properly OR;
b. Continue the relationship and sue for rent due
c. Landlord must NOT engage in self-help such as changing the locks
or removing tenant or their possessions.

ii. Duty to Repair (Doctrine of Waste)

1. T must maintain the premises and make ordinary repairs
2. T must not commit waste
a. When T removes a fixture (voluntary waste)
b. If removal will cause substantial harm
3. Minor wear and tear gets taken out of security deposit

b. Landlord Remedies
i. Tenant is not paying rent or is wrongfully out of possession.
1. Ex. T leaves wrongfully with time left on lease
ii. EVICTION:
1. If tenant on premises but fails to pay rent evict or sue for
rent.
2. Most states have enacted an UNLAWFUL DETAINER STATUTE that
permits the landlord to evict a defaulting tenant.
3. Ejectment proceedings were long and cumbersome.
4. Now we have summary eviction proceedings (supposed to be faster)
5. Berg v. Wiley (Minn. 1978). Self-help measures OK by Landlord?
a. F: D leased property for Ps restaurant. P did NOT comply with lease
i. D locked her out and found new tenant before expiration of
lease.
b. I: Did the D/landlord have the right to resort to self-help measures
and repossess the property?
i. No, (ONE VIEW) landlord should result to judicial
system instead of taking law into their own hands.
ii. LANDLORD CAN USE SELF HELP IF (ANOTHER VIEW):
1. The landlord is legally entitled to possession;
AND
2. The landlords means of re-entry are peaceable.
iii. Landlord us legally entitled to
c. LOCKOUTS: Require 2 Conditions:
i. Legally entitled
ii. Peaceable re-entry
d. SURRENDER v. ABANDONMENT
47
 i. Surrender = tell landlord you are leaving; voluntarily give up
lease. Still liable for rent unless landlord accepts surrender
ii. Abandonment = leave without notice. NO intention of
returning.

iii. Landlords Security Devices:

1. Landlord can sue for back rent and damages
2. Security Deposit: escrow account separate account that nothing goes
into but security deposit.
3. Advance Rent
4. Rent Acceleration: Tenant defaults, all rent for term is due
5. Signing Bonus

c. Landlord Duties

i. Duty to Deliver
1. L must put T in physical possession of premises at start of lease.

ii. Duty to Mitigate?

1. Restatement offers support to the position for NO duty to mitigate.
2. Common Law says there is a duty.
3. Can you Contract Mitigation Duties Away?
a. Yes - In commercial leases in some states, landlord can put a clause
in lease. Probably less likely to be upheld on a residential lease.
b. More sunk costs involved in commercial real estate.

iii. Implied Covenant of Quiet Enjoyment

1. Every tenant has the right to quiet use and enjoyment of the
premises without interference from Landlord.
2. Implicit promise every landlord makes
3. Applies in residential and commercial leases
4. Landlord Could Commit by:
a. Wrongful Eviction
b. Constructive Eviction (Must prove):
i. Substantial interference due to Ls actions or neglect
ii. Notice (T must give L notice of the problem and L must fail
to act meaningfully)
iii. Departure (t must vacate within a reasonable time after L
fails to fix problem)
iv. Ex. Premises are uninhabitable: flooding, absence of heat in
winter, loss of elevator service in a warehouse
5. Rationale: Landlord is generally in a better position to remedy the
situation.

iv. Implied Warranty of Habitability

1. Applies only to residential leases (not commercial)
2. Non-waivable
3. Standard: Must be reasonably suitable for basic human habitation

48
 a. Appropriate standard can be supplied by local housing code or case
law in your jurisdiction.
b. Ex. No heat in winter, no running water, lack of adequate plumbing.
4. More than half the states have now adopted by court decision or statute.
Standards are more favorable to tenants than in constructive eviction, range of
remedies is broader.
5. Claiming Breach: Notice by tenant of previously unknown defect and
reasonable time for correction.
6. What are Ts entitlement options?
a. Move out (within her right to end lease)
b. Repair and deduct
c. Reduce/abate the rent or withhold it until court determines fair
rental value
i. T must place his withheld $$ reduced rent in escrow account
ii. Shows he is a good faith player
d. Remain in possession, pay rent and sue for $$ damages
i. Incentivize landlord to take action
7. Hilder v. St. Peter (VT 1984)
a. F: Home had many problems (no working toilet, no locks, collapsing
ceiling) which D continually agreed to fix and never did
b. P fixed some of the problems at own expense but property was still
unlivable
c. I: Does the T have right of compensation? Does T need to abandon
property to receive full rent return?
d. H: The implied warrant of habitability was breached
and the tenant had the right to withhold rent.

8. Freedom of Contract Limited By:

a. Retaliatory Eviction
i. L is barred from penalizing good faith whistleblower T
ii. If T has lawfully reported L, do not allow L to take reprisals
against T (cant raise rent, harass or end Ts lease)
b. Time to Search
c. Anti-discrimination
d. Rent Control
i. Policy: implied warranties increase costs for L
ii. Wont be profitable business anymore no inventive to make
repairs
e. Non-renewal only for good cause
v. Doctrine of Caveat Lessee
1. The common law doctrine that stated that it was the tenants
responsibility to research leased premises before agreeing to a lease and
that the landlord was not responsible for the defective condition of the
leased premises
2. Tenant takes possession of demised premises irrespective of their state of
disrepair.
3. Duty to pay rent independent of Ls duty to deliver possession
4. No duty to make habitable unless express covenant to repair in lease.

49
d. TAKINGS

e. Eminent Domain
i. 5th Amendment: nor shall private property be taken for public
use, without just compensation.
ii. Compensation NOT due when is regulated by police power.
iii. Eminent Domain v. Zoning:
1. Similarities: government enactments impacting private property
a. Exercised under police power
b. Reserved to states by 10th Amendment
2. Differences: Taking beyond mere regulation
a. Compensation
b. Scope of Authority
f. Judicial Takings
i. Stop the beach Renourishment, inc. v. Department of Environmental Protection
1. F: FL enacted statute to prevent erosion to particular beach areas. FL
along with EPA tried to get a permit to fill in some of the land with sand
2. I: Whether dredging submerged sand from the publics shoreline
constitutes a taking pursuant to the 5th and 14th amendment?
3. H: The dredging does not constitute a judicial taking. There is no taking
here the property owner cannot show they have rights to future exposed
land. The people with rights to future exposed land would be those who
might own the submerged land once it becomes exposed post-dredging.

ii. Takings Analysis Overview

1. Is government taking property?
2. Is the taking justified as public use?
a. Private property shall not be taken for public use without just
compensation.
b. Is it an exercise of police power?
i. Yes = No compensation (Ex. Zoning)
3. What compensation should be paid?
iii. Condemnation
1. Procedure for taking when negotiations with owners dont work out.
2. Due Process
a. Title search and appraisal
b. Attempt negotiated purchase
c. Petition followed by notice to all interested parties
d. Trial
iv. Traditional Public Uses
1. Conversion to public ownership (roads)
2. Transfer to Common Carriers (railroads, utilities)
v. Measures of Just Compensation
1. Fair Market Value (FMV): What willing buyer would pay in cash to willing
seller
2. IN AN EXAM, IDENTIFY PUBLIC USE AND DISCUSS BOTH SIDES. USE
FEDERAL STANDARD IN EXAM UNLESS TOLD.
3. Other possible Metrics:
a. Subjective value
50
 b. Aggregation surplus
c. Loss of autonomy
4. Hawaii Housing Auth. v. Midkiff (US 1984)
a. F: Land concentrated in one chief with wealthy landowners controlling the
prices, everyone else disenfranchised.
i. Legislature passed act that condemned the land.
1. Take away the ownership, give it to people who were renting
and compensate landowners.
b. H: When purpose is legitimate and its means are not irrational, wisdom of
the taking not carried out in courts. (OConnor).
i. Although no public use, public does benefit. Statute valid.
1. Viewed as legitimate interest in breaking up oligopoly by SC.
c. D:
i. The court said that the courts will not substitute its judgment for
the legislatures as to what constitutes a public use unless the use
be palpably without reasonable foundation.
ii. Where the exercise of the eminent power is rationally related to a
conceivable public purpose, the court will not hold a compensated
taking to be proscribed by the public use clause.
iii. The acts approach to correcting the problem is not irrational
1. There was obviously an economic malfunction here that
Hawaii is trying to fix. The fact that the property is
transferred to private beneficiaries doesnt mean it has a
purely private purpose.
2. The HI legislature enacted the Act not to benefit a particular
class of individuals but to attract certain perceived evils of
concentrated property ownership in Hawaii. This is a
legitimate public purpose.

5. Kelo v. New London (US 2005)

a. F: City came up with a development plan to revitalize the distressed
economy. Required condemning the land. Kelo had to move out of
pink home because that is where Pfizer plant is going.
b. H: Promoting economic development is a traditional and long
accepted function of gov.
i. Govs pursuit of public purpose will often benefit individual
private parties. In this case, arguably benefitted Pfizer.
ii. Development plan was legitimate and there was no private
benefit.
iii. Government re-development plan effectuates a physical
taking because the government is acquiring private
properties and converting them to different, and public, uses.
iv. No need for general public use, just need public
purpose.
v. Dissent: (OConnor) Said it went too far. Cannot take private
property and give it another for private purpose. Overall
benefit has to be to the citizenry.
6. Berman v. Parker
a. The Court held constitutional the DC Redevelopment Act.

51
 i. This provided for the comprehensive use of eminent domain
power to redevelop slum areas and for the possible sale or
lease of the condemned lands to private interests.
ii. Court said that the power of eminent domain is merely the
means to an end. As long as the object is a public purpose,
eminent domain can be used.
7. Public Use: Ends v. Means
a. Two way to apply test to see if Public Use is Legitimate:
i. ENDS: Public use exists if ends are sufficiently public
ii. MEANS: Public use exists if a taking is necessary to
accomplish the gov. aim.
1. Condemnation has to be the ONLY way government
can reach their goal.
b. Both can be applied to the same set of facts.
8. Partial Condemnation
a. Government wants to take part of your land
b. But it decreases the adjacent land value
i. State usually compensates
ii. Cant offset by any property value increase

vi. Nor shall private property be taken for public use without just compensation. 14th amend.

g. Regulatory Takings

i. A regulatory taking occurs when the government enacts "regulations that

prohibit a property owner from making certain uses of her private
property.
ii. The government prohibits or limits the private property owner herself in making certain uses
of the private property.
iii. Current Law of Taking
1. Categorical Rule # 1: Permanent physical occupation authorized by
the government = ALWAYS a taking (Loretto)
2. Categorical Rule # 2: Nuisance = NEVER a Taking (Hadacheck)
3. Categorical Rule # 3 = All value lost = Taking (Lucas)
iv. If none of the rules apply, BALANCE average reciprocity of
interest.

EMINENT DOMAIN OR INVERSE CONDEMNATION:

INVERSE CONDEMNATION
Occurs when the government is permanately occupying someone
elses property. This almost always is a taking

52
v. Loretto v. Teleprompter Manhattan (1982) Permanent wire down
building a taking?
1. F: Cable Company put cable wire down side of apt. as permitted by state
law (landlord is unable to prevent). P bought the house which had the
cable box already installed.
2. H: Permanent physical occupation is ALWAYS a taking even though it was
a minor taking.
a. The cable TV requirement is a physical taking because the
government required private apartment building owners to endure
the physical occupation of their roofs and walls by cable TV
equipment, requiring compensation.
b. Public benefit does not matter, still a taking.
c. Size of area occupied does not matter. Also, compensation is a
factual determination by state law so SC does not address here.
d. Landlord had no choice but to allow it so its a taking
e. Compares:
i. Pumbelly damn created. Land now underwater = taking.
ii. Northern Transportation blocking access, temporary NOT a
taking
3. D: The physical and regulatory taking is different
a. Permanent physical occupation means there is a taking. A taking
like this which is small is a per se taking.
b. The case established that when a physical intrusion reaches the
extreme form of a permanent physical occupation, a taking has
occurred.
c. PHYSICAL TAKING HAS A BRIGHT LINE RULE WHEREAS REGULATORY
NOT
d. The court has always distinguished between permanent physical
occupations, physical invasions short of occupation, and regulations
on use are subject to the balancing test
e. When a character of the gov. action is a permanent physical
occupation of property, it is a taking without regard to whether the
action achieves an important public benefit or has only minimal
economic impact on the owner.
f. Permanent physical occupations are the most serious form of
invasion of an owners property interest. It deprives the owner the
right to:
i. Possess: Owner has no right to occupy it himself since he
has no right to exclude
ii. Use: Has no power to exclude and can make no non-
possessory use of the land
iii. Dispose: Can dispose of it, but the permanent occupation
will ordinarily empty the right of any value
4. Dissent
a. The court creates a permanent physical occupation formula; the
occupation here was not permanent. The cables could only remain
as long as the cable company wants them to be there.

53
 b. The courts test also opens the door to endless metaphysical
struggles over whether or not an individuals property has been
physically touched.
c. (Blackmun): Talismanic distinction (accuses majority of using
magic words)
i. Does not like the logic. Doesnt think the line is that
permanent. Needs balancing test instead

vi. Takings by Zoning? Hadacheck v. Sebastian (US 1915) Nuisance.

1. F: Brick yard was running outside of LA, not part of citys original
ordinance.
a. Cant use the land for much rather than a brickyard.
b. Zoning regulation is created that prevents him from running his
brick yard.
2. H: Within the police power of the state to restrict time, place and
manner of a business. More like zoning. NOT an absolute taking.
a. Can potentially move clay somewhere else and make bricks.
b. Economic burden, but still not a complete taking.
c. The gov. didnt take the property, they just blocked the P from
producing bricks.
3. D: P argues that he is being singled out. He argues that the Police power
is to promote public interest, which in this case is to prohibit brick making.
In this case the Gov. labeled his land a nuisance and against public health.
They used the Police was used in order to do this. The fact that the guys
business was in effect before the new statute was not a defense.

vii. Nuisance
1. A nuisance is an unreasonable conduct which substantially
interferes with or disturbs the use and enjoyment of land
2. Private v. Public nuisance
a. PUBLIC
i. Involves an interference with a right common to the general
public
b. PRIVATE:
i. Involves substantial interference with the private use and
enjoyment of one or more number of nearby properties
3. Using your land to substantially
4. Spite nuisance
5. Damages
a. Injunction
b. Property damage

viii. Nuisance: Per Se v. Particular

Nuisance is a public bad
1. Nuisance Regulation = OK, NOT a taking. W/in police power. Does NOT
require $$.
UNLESS it is:
a. Arbitrary
b. Discriminatory
54
 c. Absolute
2. 4 ways court will rule
a. Abate the activity in question by granting the plaintiff injunctive
relief
b. Let the activity continue if the defendant pays damages
c. Let the activity continue by denying all relief
d. Abate the activity if the plaintiff pays damages (Spur v. Del E webb)
3. Morgan v. High Penn Oil Co.
a. P have a complex property with retail space, trailer park, and bunch
of other stuff. The Oil refinery next door has a lot of fumes and
people in the Ps property sick.
b. Court says they are doing what an oil companies do so they are not
reckless or acting negligently. Its an intentional nuisance here so
the standard of care doesnt matter.
i. THE COURT LOOKED AT WHETHER THE PERSON/COMPANY
WAS AWARE THAT THEY HAD CREATED A NUISANCE
ii. All they need to prove is that the operation and activity was
intentional
1. So here the oil production was intentional
iii. An invasion of others interest in the use and enjoyment of
land is intentional in the law of private nuisance
c. Court finds:
i. Nuisance has to be substantial (Test 1)
1. Once a nuisance passes a certain threshold (no clear
definition) then it is substantial
d. Court defines nuisance as:
i. Non-trespessory invasion of anothers interest and enjoyment
of their property
ii. Using ones property to injure another
iii. Nuisance is generally a tangible invasion not usually a
physical invasion
e. Unintentional vs. intentional nuisance
i. Unintentional
1. involves recklessness, negligence, and ultra dangerous
activity
2. Less common
ii. Intentional and Unreasonable
1. Nuisance unreasonable in the certain circumstance
2. Unreasonably interfering with anothers property right
3. Restatement: (balancing test) (TEST 2) In exam
use both test unless she says otherwise
a. The gravity of the harm must outweigh the
utility of the actors conduct
b. What is unreasonable?
i. GRAVITY IF HARM:
ii. Unreasonable if the harm from the
defendants conduct outweighs the utility
of a defendants conduct and defendant
could pay damages and stay in business
iii. Extent of the harm
55
 iv. It looks at the cost and benefit
v. Social value of the use or enjoyment
invaded
vi. Benefit of use
vii. Cost of avoiding
viii. Burden on the plaintiff harmed for
avoiding the harm
ix. UTILITY OF THE CONDUCT:
x. Social value
xi. Suitability of the conduct to the locality
xii. Impracticability of preventing or avoiding
the invasion
c. Even if the utility outweighs, can still be
nuisance if the harm is serious
4. Estancias Dallas Corp. v. Schultz
a. P alleges that the master air conditioner of the D reduced his
property value. D had paid 80k for the AC but couldve spent 40k
more to get individual ACs instead of a master AC.
b. Injury to the plaintiff to injury to defendant to public interest TEST
(Balancing test)
i. Court didnt look at this whole test but rather focused on the
public interest part of the test
5. Boomer v. Atlantic
a. Def. operates a semet company. P takes D to court, court denies
injunction but gives temporary damage. This is an odd remedy.
They used
b. Court used the balancing test
i. They said there would be a large loss to defendant and public
1. One would be a lot of jobs, taxes, and other things
ii. Lower court said damage to P was around 180k whereas if
the plant would shut down it would damage the cement
company 45 million
1. The damage to D would be far too much compared to
P
6. Spurr Industries v. Del E. Webb Development
a. A development company bought land near a cattle breeding farm
and later tried to enjoin the farm because the odor and health
danger made it so no one was buying property
b. Public v. private nuisance
i. In both there must be substantial harm caused by intentional
and unreasonable conduct or by conduct that is negligent,
reckless, or abnormally dangerous
ii. Public: When it affects a lot of people (a community, many
people)
1. Restatement: An unreasonable interference with a
right common to the general public
a. Circumstances to look at:
i. Whether the conduct in question
significantly interferes with public health,
safety, peace, comfort
56
 ii. Whether its a continuing conduct
2. Must be able to show special injury or damage if you
bring a suit
iii. Private: when it affects one person
1. Protects rights in the use and enjoyment of land
c. Coming to the nuisance doctrine
i. Plaintiff may not have relief if knowingly came into a
neighborhood
ii. This could be used as a defense
d. Damages:
i. If injury is slight, remedy is normally compensation damages
ii. When injury is not slight:
e. Hold: In the proper circumstances, an owner of a lawful business
that is enjoined from operating because his business is found to be
a nuisance can seek indemnification from the individual successful
in claiming the nuisance.
i. D had to move bc of the legitmate regard of the courts for
rights and interests of the public

ix. REGULATORY TAKING

1. Pennsylvania Coal Co. v. Mahon (1922) No Mining on Land with
Homes
a. F: PCC gave surface rights to Mahon but retained mining rights to
land. PA passed the Kohler Act that preventing coal mining on land
that had homes.
b. I: Is Kohler Act an exercise of police power or eminent domain,
which would require compensation?
c. H: Kohler Act an exercise of eminent domain, NOT police power.
i. a state coal mining law that prohibits coal mining in certain
locations when subsidence is likely to occur does not involve
government acquisition or use private property, but rather
are regulatory limitations on how private property rights
(mining rights) may be exercised. As such, the property
owners' taking claim will be a regulatory taking claim.
ii. Mining was a private nuisance, not a public one.
iii. Regulation also interfered with private contract and hurt
estate in the land. Eliminates mining rights in public land.
iv. If it was a taking, then it wouldnt be a nuisance.
v. while property may be regulated to a certain extent, if a
regulation goes too far it will be recognized as a taking.
d. Diminution in Value Test (whether or not to give
compensation):
i. As the amount of diminution goes higher and higher and
reaches a certain value, the court is likely to find that it
was a regulatory taking. But they dont tell us what
point. Around 80 or so is likely and in the 90 s is most
likely.
e. Public Interest
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 i. Weighing public interest with diminution in value.
f. Average reciprocity of advantage
g. Court holds that taking depends on the degree of taking. They
say the Kohler act goes too far.

i. Does Act regulate a public nuisance?

1. YES = NOT a taking
2. NO = balance the interest protected with the property
interest
ii. In this case, ruled that regulation WAS a taking.
iii. While property may be regulated to a certain extent,
if a regulation goes too far it will be a taking. J.
Holmes.
h. Balancing of Interests: average reciprocity of interest
i. Dissent:
i. Skeptical of the diminution of value test. He says why not
look at the value of the whole property and not just the coal
part.

x. Landmark Regulation
1. Penn Central Transportation Company v. City of New York (1978)
a. F: Trains going out of business; want to build profitable office
building on top of Grand Central Terminal. NY Landmark
preservation committee rejects plans.
b. H: Landmark regulation does NOT amount to a taking
because it is not depriving it of its current use. Not losing any
value that it currently has.
i. Conceptual Severance Principle: look at diminution of value
of entire property, not just the potential office building.
ii. Holds that this is like zoning. Not a taking, no compensation.
c. "Where regulation places limitations on land that fall short of eliminating
all economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulation's economic
effect on the landowner, the extent to which the regulation interferes with
reasonable investment-back expectations, and the character of the
government action."

d. Economic impact on the owner

i. Investment backed expectation
e. They want the court to look at the whole property and not just the terminal. This
includes the air rights right above, singling out this landmark, and diminution In
value

f. ANALYSIS:
i. The Penn Central balancing test recognizes that "the 'Fifth
Amendment's guarantee . . . is designed to bar Government
from forcing some people alone to bear public burdens
which, in fairness and justice, should be borne by the public
as a whole' . . . ." Id.
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 1. This test seeks to establish whether particular private
property owners are being forced to bear an unfair
share of the burden of a law designed to protect or
enhance the public at large.
ii. ASK:
1. Whether the regulation has an economic impact on the
particular property owner, and especially the extent to
which the regulation has interfered with the property
owner's distinct investment-backed expectations.
2. Whether the Government is seeking to promote the
health, safety, morals, or general welfare of the public
3. Whether the regulation interferes with existing present
uses of the property.
4. NOT RELEVANT:
a. Whether the regulation destroys all use of a
particular segment of the property.
b. Whether the regulation existed before the
purchaser purchased the property.

g. Whole Property Test: Courts Will Consider:

i. The Economic impact of the legislation
1. Looking at the parcel as a whole, does the regulation
unfairly place the burden of a public program on the
individual?
a. Cant just be that it lowers property value
ii. Nature and extent of interference with rights in the parcel AS
A WHOLE (not just one sub-estate)
1. Does the regulation take away enough of your
investment back expectation?
2. Continuing to use a property as it was done for income
doesnt take anything away.
iii. Character of the government action: Does the action
reasonably effectuate a legitimate govt interest?
1. A temporary taking is not a taking
2. Its not likely to be a taking when govt acts to adjust
the rights of the public at large in the name of the
common good
h. Distinct Investment Backed Expectations:
i. Is the interference with property of such a magnitude that
there must be an exercise of eminent domain and
compensation to sustain it?
ii. Needs to be reasonable basis for expectation of economic
loss.
iii. Building a skyscraper on a train station is not a reasonable
expectation.
i. Dissent (Rehnquist): Reciprocity of advantage. The city wins, can
declare historical landmarks and doesnt have to pay. PC is being
burdened. Tourists are benefitted, not landowner.

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xi. Total Takings
1. If a government regulation denies a landowner ALL
economic use of his land, the regulation is equivalent to a
physical appropriation and is thus a taking.
2. In a physical taking, government itself is acquiring or using private
property for its own public use.
3. Lucas v. SC Coastal (US 1992)
a. F: Developer wanted to put in houses at beach front property.
b. State passed regulation preventing building by coast line.
c. ANALYSIS:
i. This type of regulatory taking analysis applies "when no
productive or economically beneficial use of land is
permitted" on a particularly property as a result of the
government regulation.
ii. SAME ANALYSIS AS PENN CENTRAL
d. H: Yes, regulation constitutes taking because the land is
rendered useless.
i. No economic benefit = no average reciprocity of advantage.
ii. Category Three Rule
1. Deprivation of all economically feasible uses of
property IS a taking.
2. UNLESS the regulation restricts use that is a common
law nuisance.
iii. Compensation is required when a regulation deprives an
owner of all economically beneficial uses of his land. Under
this rule, a statute that wholly eliminated the value of
Lucas fee simple title clearly qualified as a taking.
iv. ANYTHING LESS THAN A COMPLETE ELIMINATION OF VALUE
OR A TOTAL LOSS WOULD REQUIRE THE KIND OF ANALYSIS
THAT APPLIES TO PENN CENTRAL
e. Where a regulation denies all economic benefit of land to a person,
it is a per se taking. A small number of people are singled out in
making it better for the regular population.
f. This case refines the hadacheck case. There are very few cases
where there are complete wipeout
g. Compensation s required when a regulation deprives an owner of
all economically beneficial uses of his land.
h. Dissent (Blackmun): 100% of economic value is not lost.
i. Missile to kill a mouse
1. Case is indicative of a small set of circumstances that
wont happen very often. Marginal case with strong
precedent.
i. Dissent (Stevens): Investors may not manipulate property
interest
i. Worries this will chill the ability to regulate.
4. Category Rule #3 Analysis:
a. IS a taking if:

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 i. Deprivation of ALL economically feasible uses of property is a
taking (unless the regulation restricts use that is a common
law nuisance).
5. "A regulation will constitute a taking when either: 1) it does
substantially advance a legitimate state interest; or 2) it denies the
owner economically viable use of her land."
6. Palazzolo v. Rhode Island
a. Plaintiff bought 3 parcells of land, divided it into 80 lots. The
land is designated a wetlands. The parcells were bought under
a corporation with partners and later Plaintiff bought out the
partners so he was the sole shareholder of the corporation. P
submits 2 different proposals to fill the wetlands but it is
denied. Next, a law is passed in the state, which designates a
group to watch over protected wetlands. They also reduce
development around these wetlands.
b. D:
i. If you are a post enactment acquirer then your claim is
not barred
ii. It plays a role in investment backed something theory.
iii. This case applies the Lucas holding
c. When the relevant state coastal commission denied the property
owner's application to fill 18 acres of coastal wetlands to construct
a beach club, but the property owner can still develop his upland
(non-wetland) acreage, the regulation at issue has not denied the
landowner all value and use of the property. Therefore, the Penn
Central balancing test is the appropriate test.

xii. Temporary Takings

1. Tahoe-Sierra Pres. Council v. Tahoe Regional Planning Agency (US
2002)
a. F: Lake Tahoe is getting polluted. Wants to enact regulations to
keep construction to a minimum to avoid damage to lake. Prohibits
construction until a plan is in place. Ends up postponing
construction for over a year.
b. I: Whether a moratorium on development imposed during the
process of devising a comprehensive land-use plan constitutes a
per se taking requiring compensation?
i. What do we do about these temporary takings?
c. H: Would be a total taking under Lucas if it lasted forever. But in this
case only lasted 36 months.
i. Case casts doubt on First English. Law is not entirely settled
in this area.
ii. "whenever the government acquires private property for a
public purpose, whether the acquisition is the result of a
condemnation proceeding or a physical occupation."
iii. In a physical taking situation, the government has a
"categorical duty to compensate the former owner, . . .
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 regardless of whether the interest that is taken constitutes an
entire parcel or merely a part thereof," or the taking is
temporary.
d. D:
i. Difference between physical taking and regulatory taking.
When there is physical taking of private property for public
use then compensation is must.
ii. Inappropriate to treat cases involving physical takings as
controlling precedents for the evaluation of a claim that there
has been a regulatory taking.
iii. The argument was that it was a total taking for the certain
amount of time that the moratoria were ordered. The Plaintiff
wanted the Lucas case applied for the 32-month time the
taking occurred.

xiii. Exactions
1. Local government measures that require developers to
provide goods and services or pay fees as a condition to
getting project approval.
2. The gov. tells developers well let you build only if you donate X
amount of land. Or you need to come and build something for us. All
negotiated
a. Most common extraction nowadays is give us money
3. When the city says, we will only grant your permit to build if you do X for
us
4. Unconstitutional unless:
a. Essential Nexus = must be rationally connected to some
additional burden that the proposed project will place on public
facilities or rights.
b. Rough Proportionality = required dedication must be reasonably
related, both in nature and extent to the impact of the proposed
development
c. Burden of Proof = government must show essential nexus and
rough proportionality.
5. Nollan v. California Coastal Commission (1987) Easement on beach
property
a. F: P wanted to build new beach house on lot. City approved the
plan IF they built a lateral beach access on their property for the
public. This condition is the issue here.
b. Nolans challenge this as physical taking. Physical occupation of
their land. The city refuses and says this is a regulation.
i. Permissible Beach Power Regulation? Citys arguments:
1. Trying to protect the public view of the beach
2. Overcome the psychological barrier to use the beach.
3. Preventing beach congestion
c. H: Scalia says those are legitimate purposes, however, because you
approved the plan ONLY IF they built the easement, not valid.

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 i. Lateral easement has nothing to do with seeing the beach
from the road. Makes a new test:
1. Essential Nexus Between Public Need and
Exaction Test
a. Must be rationally connection to some addition
burden that the proposed project will place on
rights.
b. There has to be a relationship between the
purpose served by exaction and the stated
purpose (what gov. said is the purpose) for the
exaction itself.
i.
ii. In this case, nothing to do with claimed purposes.
6. Dolan v. City of Tigard (US 1994)
a. F: Ps business is doing well and she wants to expand her store size
and put in a parking lot. City planning commission approves the
plan IF she implements a drainage system underground to help the
city and makes room for a public bike path on her property.
b. She argues that the gov. cant make her give up her right to be
compensated while the bike path has nothing to do with what she
wants to do.
i. The court is asking: The public purpose is to reduce flooding
but why make it a bike path?
1. The city must also show that there was an increase in
traffic due to the expansion to be able to implement
the bike path.
ii. There is a nexus bike path traffic congestion. But is there
enough?
c. H: Rough Proportionality Test: required dedication must be
reasonably related both in nature and extent.
i. City did not show sufficient connection to be reasonably
related.
d. RULE: When a city requires a landowner to convey some property
to the city as a condition to obtaining a permit, there must be a
rough proportionality between the burdens on the public that would
result form granting the permit and the benefit to the public from
the conveyance of land.
e. Dissent: The proportion should be grossly disproportionate

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Right to Exclude

I. It is generally accepted that the essence of private property is the

right of the owner to exclude others the right to exclusive
possession
a. Policy: If A wants to enter Bs land, he should have to bargain for it
II. Limitations on Right to Exclude
a. Mistaken Improver
i. When a neighbor mistakenly improves land not his own, but
believing it is his, the owner of the land might not be able to
remove the encroachment.
ii. But if the encroachment is knowing and willful, the improver
must remove the encroachment
b. Civil Rights Laws
i. Persons offering public accommodations or housing may not
discriminate based on race, ethnic origin, religion, or other
grounds
c. Shopping Centers
i. The US SC has held that the First Amendment does not require
mall owners to allow access for purposes of free speech
ii. However, a state court may read a state constitutional right to
free speech to include exercising that speech w/in a mall
d. Workers Rights to Organize
i. Under federal law, workers have a right to organize a union, and
unions have a right to communicate w/ workers on the
employers premises seeking their votes
ii. To secure these rights, an employer housing migrant farm
workers cannot exclude union organizers from coming on the
property
III. Cases
a. Jacque v. Steenberg Homes
i. OVERVIEW: Despite adamant protests by the property owners, a trespasser
plowed a path through their snow-covered field and delivered a mobile home
to the property owners' neighbor. In their intentional trespass action, they
were awarded $ 1.00 in nominal damages and $ 100,000 in punitive
damages. The trespasser contended that judicial precedent precluded the
punitive damage award. The court held that when nominal damages were
awarded for an intentional trespass to land, punitive damages may be
awarded in the discretion of the jury. B/c the property owners' legal right to
exclude all others from their land was involved, the court noted that the law
recognized that actual harm occurred in every trespass. In the case of
intentional trespass to land, the nominal damage award represented the
recognition that actual harm had occurred. The decision, which carved an
exception to precedent, applied to the trespasser as a reward to the property
owners who persevered in attacking an unsound rule. The court also held
that the amount of punitive damages was not excessive b/c the trespasser's
conduct was egregious and deceitful.
ii. OUTCOME: The court reversed the judgment that set aside the punitive
damages award and remanded the case w/ directions.
b. State v. Shack
i. OVERVIEW: Defendants, an attorney and health service worker, entered on
private property to aid a migrant farmworker housed there. The owner-
64
 employer said he would allow defendants to meet w/ the migrant workers
they sought, but only in his presence in his office. When defendants asserted
they had a right to meet alone w/ the worker, the owner summoned the police
to remove them for trespass. The court declined to base its decision on
various constitutional principles articulated in support of finding no trespass
b/c it found the constitutional concepts served the migrant workers' interests
less than traditional state property law. The court found the owner did not
have the right to bar governmental services available to the workers, hence
there was no trespass. The court indicated it was unthinkable that the
employer could assert a right to isolate the migrant worker in a way
significant to the worker's well being as here.
ii. OUTCOME: The court reversed defendants' conviction for trespass b/c there
was no trespass when the employer was unable to bar access to
governmental services available to migrant farm workers.

VI. Marital Interests and Divorce

1. Sources of Marital Property Law:
a. English: separate property; she held title but husband essentially
controlled while married.
i. Tenancy by the Entirety: system fairly archaic
b. Spanish/French: Community property
2. Married Womens Property Act
a. Mississippi 1839
b. Gave married woman control over all her property
c. Wide also gained control of her earnings outside the home
d. Prevented creditors from going after her for husbands debt
3. Classifying Marital and Marriage-Like Relationships
a. Common Law Marriage:
i. Considered to some degree in the eyes of the law as married.
ii. Most states recognize
iii. For evidentiary reasons, courts dont like informal relationships.
Want there to be a recorded title and marriage licenses (health
reasons, records, etc.)
b. Domestic Partnership
i. Two individuals that live together and share a common domestic
life, but are neither married nor have a civil union
ii. When partner dies, other partner has no property rights.
c. Same-Sex Union
i. Same as civil union
ii. Some states have recognized these
iii. Couples have same state law rights as married couples

4. Tenancies by the Entireties

a. Group 1: MA, MI, NC
i. Common law T-by-E: H may convey subject to Ws right of
survival
b. Group 2: AK, AR, NJ, NY, OR
i. Each spouses interest subject to others creditors
c. Group 3: 11 states
i. Neither spouse may convey w/o others consent
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 d. Group 4: KY, TN
i. Use and profits not alienable during tenancy, but right of
survivorship separately alienable
5. Swada v. Endo (HI 1977). Auto tort case by Endo, sued by Swada.
a. I: Whether the interest of one spouse in real property, held in T-E can be
reached by his/her individual creditors?
b. Tendency by its entirety is not subject to creditors.
c. Married women property act
i. Womans property immune from husbands death
d. H: No. Not subject to the claims of creditors. Court decides to go with
Group III: Neither spouse can convey without the others consent. Swadas
lose.
i. MWPA gave the women right to property in a marriage.
ii.
6. In Re Marriage of Graham
a. F: P (wife) and D (husband) were married for 6 years. She was employed
as a stewardess while he went to school for a BS in physics and an MBA.
She contributed 70% of the financial support used for expenses and
husbands education. Wife wanted equitable distribution of the education
she helped provide.
b. I: Does a degree/education qualify a marital property subject to equal
distribution?
c. H: A degree/education does not qualify as marital property subject to
equal distribution.
d. D: There are necessary limits to what me be considered property; one
definition is everything that has an exchangeable value or which goes to
make up wealth or estate.
i. In deciding this, can look at whether it can be sold, assigned,
transferred, conveyed, or pledged, or whether it terminated on
death of the owner.
e. When there is a marital property to be divided at divorce, such
contribution to the education may be taken into account by the court.
i. Here no marital property had been accumulated.
f. COURT ANALYZES FACTORS:
i. No exchange value, no market
ii. Terminates with death of holder
1. Similar to pension, Social Security
iii. Product of hard work Money alone not enough
iv. Assists with future acquisition of property but it isnt a property
itself
7. Elkus v. Elkus
a. F: Parties getting divorce after 17 years, dispute over assets. P became
famous during marriage, D claims he was her voice coach and sacrificed
himself to the marriage, helping P become a celebrity.
b. RULE: Domestic relations law defines marital property as property
acquired during the marriage, regardless of the form in which title is
held.
i. Equitable distribution law deemed marital property as the effect of
an economic partnership.

66
 c. H: Yes. To the extent DFs contributions and efforts led to an increase in
the value of PLs career, this appreciation was a product of the marital
relationship, and, therefore, marital property subject to equitable division.
d. D:
i. anything in which the other partner has something to do with in
terms of contributing to the others success deserves a share
ii. DF had a direct effect by working with PL as her voice coach,
photographer, traveling with her, sacrificing his career for hers.
8. Public Policy Rationale: Family solidarity is furthered and allows for
convenient administration of the decedents estate without worrying
about decedents debts.
a. Want people to be able to take mortgages out on their house
9. CHATTELS: Some states DO NOT recognize entirety in chattels (jewelry, animals,
etc.)
10. FEDERAL OVERRIDE: Feds could still reach property (unlike creditors who
might not)
a. I.e. drug enforcement, IRS, etc.
11. Community Property
a. Recognized in: AZ, CA ID, LA, NV, NM, TX, WA, WI, AK
b. Fundamental idea is that earnings of each spouse during marriage
should be owned equally.
c. Management of Community Property
i. Type of fiduciary must be managed for the benefit of the
community
ii. No automatic survivorship right
12. Termination of Marriage
a. Division of Property: Common Law
i. DEATH: Can devise all separate property but spouse has
elective share (can renounce will and take statutory share of
spouses property; elective share replaces historical dower
and curtesy)
ii. DIVORCE: Equitable distribution of marital property
1. Courts determine a fair distribution of marital property
based on statutory factors and any division can be fair;
separate property not divided)
2. Can divide all of the property acquired before and after
the marriage OR divide the property acquired after the
marriage
3. Harder to formulate
b. Division of Property: Community Property
i. DEATH: Can devise property, other remains surviving
spouse
ii. DIVORCE: Frequent presumption of 50/50 community
property split between spouses; separate property not
divided.

Common Law States Community Property

Property Management Depends on title (you can do Both or either (if the other
whatever you want with it if it agrees); fiduciary duty if one
is yours). No community is managing.
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 property.
Creditors Depends on title
Federal Taxes
Death Wills elective share (1/3 or
) automatically to spouse
Divorce Equitable distribution court
has huge discretion to look at
facts and give each spouse
what the court thinks the
spouse put in. Could be 50/50
could be 90/10 but depends on
contributions to the
relationship.
Can reach ALL community
property, usually follows
management rules.
1. File Separately
2. FMV becomes basis of
entire property (tax benefit)
Wills property passes
Community Property regime
usually to each spouse.
Inheritance is separate
property.

13. Alimony:
a. Used to be more of a long term support, now its much less
b. If there isnt a 50/50 child custody, the party that keeps the kid
more may get more alimony

Example Conveyances
1. O to A for life, then to B.
a. A: Life estate
b. B: Vested Remainder in fee simple absolute
c. O: nothing

2. O to A for life, and on A's death to B if B marries C.

a. A: Life estate
b. B: contingent remainder
c. O: reversion in fee simple

3. O to A, but if the land is ever used for an Arby's, then O and his heirs
may re-enter
a. A: Fee simple subject to a condition subsequent
b. O: Right of entry.

4. O to A, but if premises ceases to be used for church purposes, then

to B.
a. A: Fee simple subject to shifting executory limitation.
b. B: Shifting executory interest
c. O: nothing

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5. O to A as long as the land is used for a Euro Disney World.
a. A: fee simple determinable
b. O: Possibility of reverter.

6. O to A for life, then to B if B marries Fred Savage

a. A: life estate
b. B: contingent remainder
c. C: reversion in fee simple absolute if B does not marry Fred Savage

7. O to A for life, then to B and his heirs; but if B dies b/4 the age of 21,
then to C and his heirs
a. A: Life estate.
b. B: vested remainder subject to a shifting executory limitation
c. C: shifting executory interest

8. O to A for life, and on A's death, to B if B survives A.

a. A: Life estate
b. Contingent remainder
c. O: reversion if B does not survive A.

9. O to A for life, but to B if A ceases to farm the land.

a. A: life estate subject to shifting executory life estate
b. B: shifting executory interest
c. O: Reversion at the end of A's life.

10. O to A when A marries B

a. A: springing executory interest
b. O: fee simple subject to a springing executory limitation

11. O to C and her heirs so long as D does not live on the land
a. C: fee simple determinable
b. O: possibility of reverter

12. O to E for life, then to E's children

a. E: life estate
b. E's children: contingent remainder if has no children at this time

Vested remainder subject to open if E has one or more

children

c. O: reversion in fee simple absolute if E has no children

13. O to A and his heirs, but if B returns from Canada, to B.

a. A: fee simple subject to a shifting executory limitation
b. B: shifting executory interest in fee simple
c. O: nothing

14. O to A and her heirs when A graduates from college

a. A: springing executory interest in fee simple
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 b. O: fee simple subject to a springing executory interest

15. O to A for life, and on A's death to B.

a. A: life estate
b. B: vested remainder
c. O: Nothing.

16. O to A for life, then to B if B is married.

a. A: life estate.
b. B: contingent remainder subject to condition precedent
c. O: Reversion (if condition not met)

17. O to C, but if C does not reside there, then to D.

a. C: fee simple subject to shifting executory limitation.
b. D: shifting executory interest
c. O: nothing

18. O to A for life, then to C; but if C grows tobacco on the land to

D.
a. A: life estate
b. C: vested remainder subject to shifting executory limitation
c. D: shifting executory interest

19. O to J as long as alcohol is not served on the land. J conveys his

interest in the land to K who opens a restaurant there that includes
wine on the menu. K's will grants all of her interest in the land to L.
O dies w/o a will and w/o issue. K dies. Who has the right to possess
the land?
a. J: fee simple determinable
b. J K: fee simple determinable
c. Final possessor: O's heirs in fee simple

20. O to J as long as the land is used for farming. O writes a will

conveying all of his interest in the land to K. J conveys all of her
interest in the land to L. O dies leaving no spouse and his only child,
M. J dies. Who has a right to possess the land?
a. J: fee simple determinable.
b. If used for farming: L
c. If not used for farming: K

21. O to E for life, then to F. E conveys her interest in the land to

G. G writes a will conveying all of his interest in the land to H. F dies
intestate. G dies. Who has the right to possess the land?
a. E: life estate
b. G: life estate valid until E's death.
c. H: life estate on E's life.
d. F: fee simple vested remainder
e. F G. G H.
f. Right to possess is still in H until E dies. Then to F's heirs.
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22. O to F. F subsequently dies w/out a spouse and w/out issue.
Then O dies w/ a will devising all property to G. . Who has the right
to possess the right to possess the land?
a. F: fee simple.
b. F dies, land goes to his heirs (ancestors)

23. O to H for life of J. H subsequently conveys all of her interest in

the land to J. O then dies w/out a will and w/out heirs. J then dies
w/out a will. Ho has the right to possess the land?
a. H: life estate in J's life.
b. J: life estate in his own life.
c. O: reversion in fee simple
d. After J dies, land reverts back to O but since he has no heirs, escheats
to state.

24. O to K for life, then to L if L is married. O subsequently dies w/

a will devising all property to M. K then dies. Then L marries. Who
has the right to possess the land?
a. K: life esate
b. L: contingent remainder in fee simple absolute.
c. O: reversion if L is not married when K dies.
d. M has the right to possess.

71