1L Property Law Outline

7/30/2019 1L Property Law Outline

1/23

PROPERTYLAWOutline

Property: Acquisition & Possession

I.Competing Claims to PropertyA.Introduction to property

1.4 questionsa.What is property?i.Bundle of rights [may be disaggregated]

Possession/OccupancyUseTransfer/alienabilityExclusion

ii.Conflict b/w owners, users, non-ownersrelationships, rights, cultural perceptionsbalance between individual rights/autonomy and limitations for common good

b.How do you get it?i.Buy, create, discover, borrow, lease, license, steal, receive, inherit, possess

c.What can you do with it?i.Sell, buy, use, divide, give, rent, lease, develop, keep, extract

d.What does it mean to people, law and for justice?

i.rights of exclusion, unrestrained useii.distribution of resources to divide rights and duties among people

a relationship between people w/ respect to things, not b/w person and thing2.General Theories

a.Rights vs. Entitlementsb.Ownership and social relationsc.Exclusion v. Accessd.Wealth Maximization vs. Human Flourishinge.Efficiency and social Justicef.Law vs Culture

B.Conquest1.Property Rights From Competing Sovereigns

a.had purchased land from Indians,

from US. Title from Indians invalid, title descends fromsovereign. US, as sovereign conqueror, has exclusive rt to obtain title from Indians. Indians have no

title, only right of occupancy.Johnson v. MIntoshi.derived from euro history of treatment of Indiansii.natural law, discovery doctrine, law of nations basis

C.Distribution by Sovereign1.Homestead Acts

a.Lands taken from Indians was public domain, distributed by US2.Squatters

a.land often possessed by squatters, eventually obtain title free, cheap3.Freed Slaves

a.promised land for labor never materialized, often left in debt as title went to fmr ownersD.Gifts & Inheritance

1.Gift is property from one to another w/o pmt.a.inter vivos: during life; testamentary: by willb.requires: Intent, delivery, acceptance

i.e.g. engagement rings may be conditional on actual marriageE.Possession

1.of Baseballs and Wild Animalsa.Land title is derived from sovereign, property 9/10 Possession when?b.Chasing fox, comes in kills, takes. had no property rights as he hand no corporal possession.

Hist. says wounding + (maybe) seizure = poss, Pierson v. Posti.Locke labor theory: application of human labor to natural commons [res nullius] creates property


2/23

c.Barrys homer. caught, dispossessed before secure. Ball still abandoned, complete control required,intervening illegal act gave pre-possessory interest, 2d poss not illegal actor, thus share possession.Popov v. Hayashii.equitable remedy for equal competing claims to abandoned prop

2.Findersa.Gmas. bags of confed. dox; SC gov. contested. Possession is rebuttable presumption of title. No proof

of illegal act, Gov. papers genly pvt. prop. thus title .Willcox v. Stroupi.protecting O expectation int. is wealth maximizing, efficient

b.Amateur Acrheog. digs up indian artifacts. Not finder as artifacts not abandoned, thus TO still owns.relative rts of finders. Charrier v. Belli.F > 3d pty unless wrongdoingii.TO > F if not abandonediii.wrinkle: Premises O (possibly) > F, unless trespass

split, some use mislaid:lost distinction [PO:F]key issue: Intent

3.JOHN LOCKE:TWO TREATISES OF GOVTF.What can be Owned?

1.Property in Genetic Informationa.Patents

i.Gives inventor 20yr right over inventionii.Requires: Process; Novel; Non-Obvious; Useful

b.Hairy cell leukemia protein-speen. Removed from body, cell line used to create drug, dox get $3Bpatent.

sues conversion. denied, no right, relinquished/discarded. Moore v. Regentsi.Public policy: development of drugs > potential moral hazard of body part theft

2.RADIN:PROPERTY AND PERSONHOODa.Labor theory: property rights defined by human labor/value addb.Utilitarianism: Entitlement to wealth maximize, promote efficient results

Rights of Exclusion & Access

I.TrespassA.What can one do with property? Most property doctrine derived from Trespass.

1.Elementsa.Unprivileged intentional intrusion upon property of another.

i.Privilege may be consent [objective; no fraud], necessity (to prevent harm), Public Policyii.Intent is voluntaryiii.Intrusion is of presence on or touching the property

B.Remedies1.has land, man moves mobile home over corner to avoid windy road, no consent. wins suit + punitive

damages. Right of owners to exclude [trespass] is absolute, central. Pun. damages justified.Jacques v.Steenberga.Doctrine: [laws] violated laws of trespassb.Policy: [social relations] must deter egregious violation of individual rights, self-helpc.Theory: right to exclude is sina qua non of property

i.contra: Rt. to exlude not absolute, [limited by obligations. maximize wealth as social obligation]C.Public Policy Limitations on Exclusion

1.Social worker seeks to dist. info to migrant worker on farm. Residence is encircled by farm, trespass.Right to exclude not absolute. no use of rt. to exclude to impinge on rts of others. State v. Shacka.Doctrine: violates trespassb.Policies: No encouraging violation of [individual] rights. migrant workers disadvantagedc.Theories: Right of exclusion vs property rights as service to human values

D.MERRILL AND ALEXANDER:EXCLUSION1.Two theories

a.Ownership [merrill]: exclusion is sina qua non of prop, most important stick; boundaries definerights, lead to efficient alienation/development wealth maximizing

b.Social Relations [alex.]: Rights lead to duties (to society). Property rights are inherently limited by thedrive to promote human flourishing, identifies obligation to promote social good

E.Right to Reasonable Public Access1.The right to exclude is limited proportional to the continuum of the propertys public openness.


3/23

a. was a card-counter and banned from casino. Rt to exlude is limited by public access to prop.. If ofopen character (pl. of amusement) may exclude for safety/nuisance of guests, not arbitrarily.Uston v. Resorts Intli.Public has reasonable right of access to all property open to public [uston,minority rule!!]ii.Historical doctrine limited to inns/common carriers for public policy, otherwise arbit. excl. ok

[maj. rule]may not violate anti-discrimination

II.Public Accommodations StatutesA.Anti-discrimination Principle

1.Federal Lawa.Civil Rts. Act of 1964, Tit. II

i.discrim in public accommodation on basis of race, color, religion, natl originii.Pub Accom. is inn, hotel lodge > 5 rooms, food service, amusement. not pvt. clubs.iii.No damages

b.Civil Rts. Act of 1866i.Equal rts. under law, capacity to ii.only race discriminationiii.common carrier restrictions on discriminationiv.damages available

2.State Lawa.States may add to anti-discrimination classes, e.g. sexual orientation, genderb.No discrim for race, creed, color, origin, ancestry, sex, orientation, marital status. N.J. Law Against

Discrim.

Relations Among Neighbors

I.Adverse PossessionA.Defined

1.when party possess anothers property such that the title transfers to the adverse possessora.Actual Possession

i.Objectively occupied [majority]state of mind/subjective [minority]

~Claim of right: actual occupation as owner would, disallowed if boundary actually known

~Intentional: must intend to dispossess [disfavored]~Good Faith: must be w/o knowledge of boundaryb.Open and Notoriousc.Exclusived.Continuouse.Adverse and Hostile

i.Permission is complete defensef.Under claim of right/color of titlefor period

i.may be reduced by color of title [mistakes in title]2.Conduct + Intent possessory interest / title3.Generally arises when landowner notices use of land, ejects

a.or defendant cclaims to quiet title in own name [or vice versa]4.May not be used against The Man5.Non-possessory interests may remain, e.g. leins, mineral rts, covenantsB.Hohfeldian Terminology1.8 Legal Rights [opposites correlates]

a.Rights : No Rights Rights : Dutyi.claim, enforceable by state, that individual act in specific way to neighborii.if one has a right to exclude, another has duty to remain off

b.Privilege : duty Privilege : No Righti.permission to act w/o liability and risk of prosecutionii.restaurant owner has privilege to enter, patrons no right to exclude; owner has duties under

limiting rts.


4/23

iii.he who drops his wallet has the privilege to pick it back up, passer by no right; finder has duty toreturn

c.Power : disability Power : Liabilityi.State enforced abilities to change legal entitlements

d.Immunity : liability Immunity : Disabilityi.Protection from alteration of entitlements

C.Title vs. Possession1.Border Disputesa.neighbors dispute 2ft boundary by fence. survey indicated ownership, no act til road build. History

of use for 57 yrs by predec. (tack), visibly, exclusively, actually, adversely, continuously. thus AP= .Brown v. Gobble

2.Color of Titlea.Land buyer seeks to settle title w/o valid sig. paid taxes, could survey prop., possessed. color of

title as deed signature missing, but other elements indicate ownership. constructive validity underAP. Romero v. Garciai.Step 6 claim of right/color of title

3.Squattersa. used property as vacation, built cabin, etc. Continuous (seasonal ok, given nature of prop); open

(structures, S. part fails); exclusive (community use ok as custom); hostile; period of 10 years.Nome 2000 v. Fagerstrom

i.Only for pvt property;

had staked off for land claim per Ak. ii.Mineral rts. can be severed from surface estate in APD.Justification Problem (Do not disturb vs. Land Piracy)

1.Justifications for APa.Utilitarian / wealth maximizingb.prevents stale land claimsc.justified expectations

i.reliance, avoid windfall gains by true owner w/o just expectation, justice-enhancingd.Morality/social obligation

2.Boulder fight over strip of lot. massive litigations costs undermine efficiency theories. leads to changes inCO. law. favoritism etc. McLean v. Kirlina.Co. law now: actual, adverse, hostile, claim of rt, excl., uninterrupted for 18 must have good faith

in Oship

II.ServitudesA.Servitudes

1.Unlike AP, servitudes do not confer title, thus limited use, Non-possessory interesta.Conduct + Intent non-possessory interest (use right)b.Use right : Obligation to allowc.usually runs with land (pass to subseq. burdened owners)

2.e.g. Easements, Covenants, Profitsa.Easements

i.Permanent irrevocable right to enter landii.Statute of Frauds compels writing

b.Licensei.informal, temporary, personal, usually revocable

c.Covenanti.contractual promise regarding land use that binds OG parties and mayrun w/land [real cov/equitservitude]

3.Key issues:a.Formal requirements and equitable enforcement in absenceb.if ambiguous servitude, how to resolvec.What are substantive reqs. of servitude validity

i.e.g. public policy, no run w/ landd.How can servitudes be modded/terminated

B.Licenses1.Informal and revocable permission [no writing req]

a.may be limited by CRAs, rights of d party


5/23

2.not a servitude, not transferableC.Easements

1.Defineda.Affirmative

i.AKA right of wayii.obligation to allow dominant estate to exercise rights on servient propertyiii.right to use may pass between owners

b.Negativei.give grantee rt to res enforce promise not to do something on propii.historically limited to light, air, support, stream water

2.today: conservation, historic preservation, solar access

3.Creation by Express Agreementa.History

i.Lords controlled serfs, partitioned land, fences go up, rt of ways reqdb.Formal Reqs

i.Writing/Statute of FraudsExpress easements must be in writing, agreement b/w 2 ptys

~except: prescip. easements, estoppel, implication, necessity, constructive trustse.g. writing reqd for RE interest transfers, >1yr. leases, terms not complete in lifetime, creditmay be bought and sold, part of deed

ii.No Reservation in 3d Pty.A cannot sell B property with easement benefitting C

~abrogated/limitedc.Validity: Substantive Limits

i.Negative Easementsdisfavored, generally. Primary CL forms:

~Rt. to lateral support of a building~Rt. to prevent light/air blockage by neighbors~Rt. to prevent interference with stream~Today dictate for solar, historical structures

ii.Affirm. Easements to act on ones own Landhistorically invalid, easements are rts on others land.

3rd rest.: negative easements abolishedmirror restrictive covenants of today

d.Running with the Landi.Requirements to Run [Burdens]

will easement survive after sale?~Intent + writing + notice (of easement to subsequent owners)

actual notice inquiry notice: buyer investigates Constructive: if OG deed has easement/record of easement in title search

~implication, necessity, estoppel run ifso intended, or to protect dominant/benefactorii.Requirements to Run [Benefits]

Intent + Writing

~If intent to run with land: Appurtenant~If intent to not run: In Grossiii.Appurtenant v. In Gross

Easement Appurtenant~creates dominant : servient estates [benefited : burdened]

e.g. owner of A [d/ben] may cross Bs [s/bur] property to reach MailboxEasement in Gross

~creates only servient estate [a burdened parcel w/ individuals rt. to enforce] e.g. A [rt to enf] may install and maintain wires across Bs [s/bur] property

sells property to in exchange for easement to access cabin. easement address to byname for access to prop. strong presumption against in gross. if not expressly in gross,


6/23

appurtenant. restrictions on easement may be imposed as contemplated by OG agreement(no motorcycles). Green v. Lupo

~parole evidence issue: not appurtenant/in gross text ambiguous allow to clarify4.Interpretation of Ambiguous Easements

a.Appurtenanti.Tahoe back road to NE property owned by golf course. used by cox predecessor, 5 others. Rt. of

use cannot interfere with rts. of others. The use of rd was textually appurtenant, but restrictedto OG conceptions, thus no widening, probably no subdivision by .Cox v. Glenbrook

b.In Grossi.Back 5ft. of props. have EIG for electric/phone wire. Dominant licenses

to string cable. In-grossowners can subdivide interest they have, thus apportionment for cable (w/in expect,) legit.Henley v. Cablevisionno extra burden, no viol. of rts. of owners to license cable [broadly interpret]

5.Creation by Implication [Non-express]a.Estoppel/Irrev. Lic.

i.Licensee may estop revocation of license if grantee had rt. to improve/ substantial relianceinterestexclusion estopped

ii.stopped from using rd across prop. after built house, verbal license to use rd. If licenseeshows reasonable reliance, detriment on revocation estoppel. House otherwise inaccessible.Holbrook v. Taylorconstruction process uncontested, implicit license

b.Constructive Trustsi.Property arrangement where O Trustee w/conditions to manage prop for 3d pty. beneficiary

trustee has legal title, beneficiary equitable titleusually express by will/arrangement, but may be constructive

~remedy if pty wrongfully denied benefit of title by mistake, fraud, etc.ii.Montana cabin owners have no title, only license, prohib formal tenancy. New owner ejects per

license, ag. will of seller, viol. benefits of licensees. Temp constr. trust on buyer to licensees.Rase v. Castle Mtn.Policy/equity arguments > rt. to exclude (buyer knew of tenants)tenants never had need to est. more legit title (rare circumstance/peculiar pre-sale

arrangement)c.Prescriptive/Quasi- Easements [implied by prior use]

i.RequirementsPrior unity of ownership of tracts before severancePrior use of one parcel for ben of another, in visible & continuous mannerUse necessary for enjoyment of dominant estate

ii.Sale of prop by/in shopping center, delivery rd incl. No easement, trucks then excl. Alt. routes,new rds impracticable, thus rt. to exclude limited by quasi-easement of prior use. GraniteProps. v. Mannsjustified by implicit understanding of nature of prop, even without actual recorded easementnot necessity [narrow construction in doctrine] as it was technically possible, but

impracticabled.Easements by Necessity

i.Requirements2 parcels formerly owned by single pty before severanceSevered parcel landlocked

~parcel gets easement by necessity over grantors land~may lie dormant over xfers, only req. former unity of title.

ii.land surrounded by other parcels, easement denied by buyer, alt routes over strangers land. ifparcel severed w/o access to rds & surrounded by grantor land/strangers, necessity easement.Finn v. Williamsstrangers land immaterial, cant req. 3d ptys.policy generally to improve alienability/efficient land use

~cts may deny EN if intent clear to buy/sell landlocked parcel, or require compensation toO

e.AP & Prescriptive Easementsi.Adverse Possession Easement [prior-use basis]


7/23

requirements~Open & Notorious~Adverse~Continuous for 15 years~Acquiescence by burdened pty.

Does not confer title like AP, only a non-fee use interest.No prescriptive negative easementsMay add good faith error

Majority presumes no permission inii.After survey, learns lot used by is his prop. used for loading trucks for 60 years. nopermission, tacking, obvious, acquiescence by .Community Feed v. Culvert

6.Termination of Easementsa.Express Release (in writing)b.Self-terminating (limited time/purpose)c.Merger/unity of titled.Abandonmente.AP/Prescriptionf.Marketable title [restr. easements not periodically recorded]

D.Public Trusts1.Intro

a.Public trusts preserve public interests in govt owned landi.e.g. Navigable waterways (fed) and tidepools (state)

ii.Today used to preserve environment and natl resources2.Beach Access

a.Town restricts beach access to residents, members. Assn is quasi-public by body, thus the rights toexclude must be reasonably restr. for public welfare, thus dry sand access. no rule on pvt. sand.Matthews v. Bay Headi.quasi-/public bodies may not restrict access to waterline, for e.g. fishing, walking

E.Covenants & Equitable Servitudes1.Background

a.Negative Easements limited, affirmative easements could not apply to landb.Parties circumvented by but privity issue for subsequent owners

i.thus, privity of estate ( attachment to land)ii.

real covenants emerge b/w llord/tensLL-T is simultaneous privity

Buyer/seller is instantaneous privity [did not exist historically]Req: Writing, Intent (to bind future tens), Touch/Concern Land, Privity (simul. only)

c.Today, covenants enforceable against parties, by damages or injunction if:i.Writingii.Intent to run (primary issue)iii.Notice of burdeniv.appropriate to impose on subsequent possessors of servient estate

public policy against covenant?what is appropriate remedy?

d.Rights/oblig. of OG partiesi.OG benefactor cannot sue w/o explicit language, if soldii.If OG intent was in gross covenant does not run.

e.Obligation of successorsi.rights/burdens dont always runii.Privity distinctions (horiz/vert) may limit damages for injured dominant successors

f.Real Covenants/Equitable Servitues (distinction abolished in 3d rest.)i.Writing (ES/RC)

usually in lease/deed, may be constructive, or enforced in equity (rare cases). not sales lit.ii.Notice (ES/RC)

protects servient owners.Actual/Inquiry(obvious/notorious)/Constructive(registry)

iii.Intent to Run (ES/RC)look for heirs and assigns or other clear language.


8/23

general presumption to run/against in grossiv.Touch/Concern Land (ES/RC)

affects party in use/enjoyment of land/enhances mkt. valuev.Privity (only RC, not reqd for ES, thus proposed abolishment)

Horizontal: original parties (generally mere formality, abolished in 3d rest.)~Relationship b/w OG parties, req exchanged of ben/burden (consideration)~Mutual: (simultaneous eg. LL-T, mortgagee-or, easements)

when grantor/ee have simultaneous interest in parcel

hence, a convenant in lease satisfies~Instantaneous (buyer/seller) when grantor retains no interest in land sold to another. If burden on one for

another parcel, both parcels may have covenant @ time of sale.~Horiz privity doesnt exist

b/w neighbors when not part of simultaneous property xfer agreements b/w grantors/ees not made at time of conveyance

Vertical: Rel. b/w OG pty and sucessors~strict: requires total alienation/sale, OG owner cannot retain interest

fail if, e.g., LL-T (owner has longer estate than possessor) or, neighbor-beneficiary but not successor owner/possessor

may be allowed in equity if clear intent

or, owner title derived from restricting party, but w/o cov, before burdened parcelsold

~relaxed: any possessor of burdened/benefitted parcel; LL-T~generally, if non-hostile nexus with future possessor

g.Remediesi.RC: damages &/or injunctionii.ES: Injunction only

2.Creationa.Express

i.W-D anchor, restr. other stores grocery space by covenant. Dol-gen moves in, violates space limit.enforceable by ES: written, run with land intended, touched land by value, notice is impliedactual by inquiry or constructive by registration, industry knowledge. Winn-Dixie v. Dolgencorp

ii.sold parcel, limiting use to not compete w/ new parcel. lease to CVS, violating non-compete w/discount store on s parcel. writing, clearly runs, actual/constr. notice, touch/concern (non-competes affect value) privity (from mutual easements). Whitinsville Plaza v. Kotseasnoncompete provisions running limited if unreasonable restraint on trade

~To evaluate NC, look for: Intent/purpose; OG consideration; Express stmt of restr.;Writing; Reasonable; PubInt; changed circumstances.

OG trust who sold to cannot sue, no remain interesthad kotseas sold to CVS, not liable as OG party; lessor retains duty

b.ImpliedReciprocal Negative Servitudes in Residential Subdivisionsi.Intro

Privity issues in res. subdiv.. developer adds covenants to protect rem. props.. After last sale,cov. must be enforced against other owners.

early lots may not carry restr., some lots not restr., or defect how to enforce?IRNS enforces cov if:

~property was intended beneficiary~part of a common scheme (plat)

today, usually filed prior to first sale constructive notice Indicia of common scheme

restr. in all/most deeds in area recorded plat showing restrs. Restrs. in last deed observance of restrs. in by residnte language

ii.subdivision has covenants on sold lakefront props. restr. to single fam. dwell. developers reservedplots no cov. devised, sought to build condo, marina. implied covenant for all lakefront (voting


9/23

props) as part of common scheme/similarly situated. landlocked lot for condo no cov. Evans v.Pollock

iii.Couple own lot w/o cov, seek to build gas station. denied, OG owner had 53/91 lots w/cov,implied as common plan, constr. notice. Sanborn v. McLean

iv.O builds snow tunnel w/o permit. Other lots have cov, not O, as first buyer. Thus, no notice, nocov, no implied. Mistake? Justice? Rare. Riley v. Bear Creek

v.Avoided by filing general plan w/ decl.of cov.vi.some jurisdictions will not scrutinize like evans, but prefer sanborn and imply if find common

scheme

Co. requires a declaration signed by grantor, not just plat record. not all sub-d.vii.developers cannot retain in gross right to sue after all sold, unless legit interest in land

F.Regulation of Covenants and HOAs1.Common Interest Communities

a.Definedi.Those communities with power to enforce covenants outside dominant estate model

b.HOAs and Condosi.created by declaration prior to sale. may collect dues for commons, condos/homes still in fee.

c.Co-opsi.prop owned by non-proft, lessees buy shares from coop. fragile, rent dependent, no sep.

mortgagesd.Community Land Trusts

i.non-profit owns land. Trust holds title, purchase subsidized by gov. ground lease, sale to lowincomesG.Modifying & Terminating Covenants

1.Changed Conditionsa.had covenant on all biz not to sell alch. brown baggin ok. town expanded, lost religious village

character. Liquor stores + brown baggin + comm. dev. means condition not same, no restr. biz/dev.El Di v. Bethany Beachi.No enforcement of covenant if beneficiary incapable of enjoyment (balance owner rts/pub pol)ii.Rare, but covs may be reqd to be shown to be of actual benefitiii.Theory similar to abandonment/acquience

2.Relative Hardshipa.if burden of considerable magnitude > benefit = enforcement may be denied

3.Equitable Defensesa.acquiescence, abandonment, unclean-hands (toleration of viol/by others/self)b.estoppel: dominant says to servient, no enforcec.Laches: ignore covenant long enough to encourage investment, not yet prescriptive

4.Statutesa.Co Rev Stat

i.No unreas. restr. on solar devices. Removal of racial covs. Mod. S.Ct-voided covs.b.Mass Gen. Laws

i.presumption of no benefit unenforceability, prefer damage-buy-out to covenant. Pub.Pol.c.Cov. says alley must remain clear. Ritz expands, wants passage over alley. Mass presumes no benefit,

burden of proof on benefactor. no M&S benefit, already Ritz1, tall bldgs.. lt/air loss, damages, nocov. Blakely v. Gorin

5.A Bit of Theorya.Law and Economics

i.Descriptivehow does doctrine promote efficiency?ii.Normative

what should laws be to promote efficient results?iii.Cost-benefit analysis

Rights/burdens/entitlements have value. promote most efficient rule at lowest cost to society~pareto superiority: one gain, no losses; everyone wins~pareto optimality: the law of diminishing returns; no exchanges may be pareto optimal~wealth maximization: changing rule of law to make winners > losers; losses occur but 21 years after As deathiv.remedy? OA

b.OA for life, then to B if she graduates from law schooli.A has LE, B has CR, O has reversionii.Rule Appliesiii.No Violation

c.OA for life, then to As grandchildreni.A has LE, As GC have CR subject to openii.Rule Appliesiii.Violation: 21 years after As death, no knowledge if GCiv.OA for life

II.Interpretation and RegulationA.Ambiguous Conveyances

1.Presumption Against Forfeiture/Grantors Intenta.If grantors intent unclear, policy is to go FSA for alienability, free useb.generally interpret against forfeiture.c.Cov > FI; FSSCS > FSD; FSD > LEd.FS vs Defeasible Fee

i.land given for purpose of hospital. Intent FSSCS/D, but not using standard limiting language.Interpret as FSA unless clear. Wood v. Freemont Cty.generally, purpose stmts. not legally bindingmay find exception for charitable purposes, especially if ltd restraint on alienation. Cathedral

Incarnation~volatile doctrine. may also be FSA w/ restr. cov. not FSSCS. some cts. wont preserve.

e.FS vs Life Estatei.gives daughter farm on anti-creditor terms. seeks to buy FI from her kids w/ remainder, cant.

holdout disinherited. Ds estate held to be LE, thus cant disinherit. LE as ambig but clr. intent.Edwards v. Bradley

2.Cy Pres and Trustsa.if charitable trust has gen intent to contrib. to charity, purpose frustrated cy pres will alter

purpose in line with changed conditions and OG intent, if possible. (e.g. gender discrim. clauses)B.Regulatory Rules

1.Wastea.Voluntary: deliberate acts of b.Permissive: failure to perform affirmative duty to maintain valuec.Ameliorative: acts increasing value of prop, not always ok

i.could be problem if substantial change in characterd.Woman neglects farmhouse, daughter sues executrix for waste. LE holders have duty not to waste,

cannot let property lose sub. value. LE neglected, lost value. No laches/estoppel as it was mother,law wont require suit against ill/poor mother. Moore v. Phillipsi.laches is delay in filing, nullifying claim. must actually prejudice .

2.Rule Against Creation of New Estatesa.Law will only recognize FS/LE/TOY/FT(juris may abolish)b.will devises in fee-tail-male. suit for deposit, murky title. declared FSA, no FTM.Johnson v. Whiton

i.FT is heavily disfavored (or abolished) + gen rule favoring FS + No new, no matter clarity3.Rule Against Unreas. Restr. On Alienation

a.FSA cannot be restricted w/o reason; generally disfavoredb.Balance b/w interest/utility & harm

i.reasonableness inquiryweigh duration, # affected, reason, etce.g. lease w/ covenant against sublet ok

4.Restraints on Alienationa.Direct Restraints

i.had covenant preventing sale of club w/o 100% appvl/dissolution. sought to move, 1 holdout. Tctruled 100% req as unreasonable, VtSct revd: verify if charity to est. nature of interest.Horse Pond v. Cormier


15/23

relaxed reasonableness inquiry in charity, sustains purpose.5.Rule Against Unres. Resrt. on Marriage

a.Donative conveyance to prevent first marriage = Verbotenb.Donative conveyance to prevent some marriage = Valid unless unreasonablec.Donative conveyance designed to prevent remarriage = Valid if by 1st spouse & reasonable in

circumstances6.Rule Against Perpetuities

a.See above.7.Rule Against Racial Restrictions

a.generally unenforceable; seeShelley, supra, but cf.Evans,supra.Concurrent Ownership

I.Concurrent Ownership & Family PropertyA.Varieties of Common Ownership

1.May be divided, shared of concurrent2.e.g. Common/joint tenancy, tenancy by entirety, partnerships, community property, corporations

B.Rights/Obligations of Co-owners1.Tenancy-in-Common & Joint Tenancy

a.Tenancy in Common (default/if ambiguity)i.no right of survivorshipii.OA & B (as Tenants in Common)iii.each tenant has right to possess whole, unless covenant by all othersiv.unequal share of ownership ok, intervivos xfer ok.v.tenants may devise/leave to heirs intestate

if AC, B&C are TICb.Joint Tenancy (only w/ use of key language)

i.Right of survivorship. after death, interest is split between remaining tenants.ii.Right to possess entire parceliii.equal ownership shares reqd, intervivos xfer severs

severance: if JT tenant xfers interest, survivorship destroyed, converts to TIC.~A&B&C JT, BD; A is not sole owner but A&C become TIC~Possible by SPAM: Sale, Partition And Mortgate~avoid conveyance-severance: OA&B as LT w/ remainder in A if A>B, in B if B>A.

iv.tenants may not devise/ leave to heirs intestatemay convey to self & another as JT

v.Requirements4 unities

~time~tenancy/title~interest~possession

vi.Obligations & Rights of Co-ownersshare expensesmaintenance & repair may be reqd if reasonable, notice

~does not include major improvements

If 1 pty occupies, no rent unless contrib > rental valueTenant out of possession may not sue for rent, in possession may sue forcontribution/expenses

vii.Trespass: desire to exclude by 1 > desire to include by otherviii.no adverse possession

2.Tenancy by the Entiretya.Available to married couples, 60% abolishedb.Requirements

i.legally marriedii.no partition but through divorceiii.non-xferable interestiv.creditors may not attack property for debts of one


16/23

C.Rent/Possession Conflict1.Husband moves out after separation, 2 yrs later divorce. moved in with paramour, sues for rent under

constructive ouster. denied affair was cause of divorce, no unilateral constructive ouster. cfabandonment. Olivas v. Olivasa. some juris. assume constructive ouster in divorce. if actual/constructive = rent

D.Transfer Conflicts w/ 1 Co-owner1.Tenancy in Common/Joint Tenancy

a.Generally co-tens have duty to share maint/exp, rt to possess, xfer, share rent.b.if disagreement over possession/use: Accounting (financial det. of rts/duty) then Partitionc.Family Conflicts

i.Father/son TIC, lease to on cropshare. son wants cash. father/ arrange 10yr cropshare w/osons consent. consent not reqd, equal rts as occupants. Right to rent viol, partition as remedy.Carr v. Deking

d.Deathi.TIC leases interest in prop to 3d, dies, TIC2 seeks FSA. JT severed by interest sale (unity

destroyed) but lease is not sufficient intent to destroy, thus, remainder to TIC2, lease invalid atdeath. Tenhet v. Boswell

e.Divorcei.Father leases land to son, separates w/ wife. Wife ends up with sons leased prop, seeks to Kresha

v. Kresha2.Tenancy in the Entirety

a. injures in accident, doesnt pay settlement, estate sought, owned TiE by and wife, deeded tokids before death of wife. TiE has 100% ownership by both spouses, no attack by creditors. deed tokids legit, no fraud. public policy against house seizure. Sawada v. Endoi.may be attacked in some states, with survivorship in spouse, then sale; or by consentii.homestead laws may also restrict

E.Marital Property1.Basics

a.historically only single women could own sell propb.married women had to go thru husband as single entityc.married women had rt. of survivorship

2.Community vs Separate Propertya.Separate

i.During Marriagespouses separately own and manage prop acq. before/during marriage

duty of support, and intermingle shared propertyCo marital prop: anything acquired during marriage. exc. gift, inheritance, prop excl. byprenup

ii.On Divorceequitable distribution of spouses property to achieve fair result based on many need-based

factorsincludes increase in value of sep. owned property & debtsCo no-fault juris

iii.At Deathdispose of property by will, subject to forced share thresholdintestacy: forced sharing of prop depending on # of descendants, or just to spouse ()

b.Communityi.During Marriage

prop before marriage, by gift, devise, inherit, still separate.all other, eg salary, real estate, etc equally shared, limited by preunpboth must consent to alienation, mortgage; fiduciary duty to community

ii.On Divorceeach gets separate prop + community/equitable distribution (juris split)

iii.At DeathRt. to dispose of separate prop and community

c.Prenupsi.Generally enforceable unless

involuntary, unconscionable, insuff. disclosure, substantial injusticed.Homestead Laws


17/23

i.protection of primary residence for debts of decedent spouse for survivors lifeii.can stay in home. limits in equity. may protect down payment from seizure in bankruptcy.

Leaseholds/Real Estate

I.LeaseholdsA.Leasehold Estate

1.Commercial/Residentiala.Cts have adopted CL rules for residential terms, less for commercial due to bargaining power

2.Categoriesa.Term of Years

i.standard lease, w/ reversion in owner or 3d pty. remainderii.possessory right of occupancy unless lease cond. violated / end of termiii.subject to statute of frauds

b.Periodic Tenancyi.Auto renewal of lease unless LL-T choose to end (e.g. month notice or as reqd by )

c.Tenancy at willi.unspecified duration, may tech. term. w/o notice, but many juris req. by , not always same as PT

periodd.Tenancy at Sufferance

i.aka holdover tenant; short duration (as LL accepts rent, or evicts)ii.If T continues to occupy after term, may stay if LL accepts rent. term is MM or on old terms

(minor)iii.LL may sue for possession, estoppel risked if rent accepted

3.Statute of Fraudsa.Writing required for TOYb.oral may be allowed for PT/TaW

4.Landlord-Tenant Relationship Regsa.Many CL/ regs. Uniform LL-T acts in 26 statesb.Procedural reqs for writing, termination, notice, evictionc.certain minimum facilities and mutual obligations

i.T may not waste must repair if not normal wear and tearii.T may not remove fixturesiii.T must follow law, reasonable terms in lease

B.Rent Conflicts1.Landlord remedy: Summary Process

a.LL has right to rec rent, no waste, reversioni.duty to provide possession, may be liable for damages if notii.duty to provide habitable premises

b.if T doesnt pay renti.and T stays

sue for back rent and possessionthrough summary process (Co. 3 day notice req. 5-10 days to hearing)no self-helpT may counter-sue for violation of equal housing rts

ii.and T goesLL may accept surrender, look for new T

~sue for back rent + damages (rent value, if Pm


18/23

3.Rent Controla.-rent max is not unconstitutional taking as < social policy of affordable housing

C.Occupancy Conflicts1.Transfers of Leasehold Interest

a.Landlords Right to Transfer Reversioni.Leasehold/terms survive after transfer of reversion

unless mortgaged, possibly, or LEb.Tenants Right to Sublet/Assign

i.Generally, T may convey what is ownedRestraints on alienation disfavored as policyformalities must be balanced with reasonableness222allowed if lease silent

ii.FormsAssignment: new tenant, T1 not liable. Bound by lease covenants, privity of estate. Rel b/w T2

& LLSublease: covenants dont run. Interest maintained by T1in ROE/remainder. LL maynt sue T2

iii.Clauses restraining sublease/assign. may be upheld for creditworthiness of Tnext is uncertainiv.Airport biz seeks to assign to T2, denied by LL. Lease req. consent, silent on cause. LL demands

cause, hi rent, onerous terms. Comm. prop should be alienable. T 2 had better finances, nocommercially reasonable cause for denial. Pub. Policy overturns CL arbitrary denial. s goodfaith exec. Kendall v. Ernest PestanaCommercially reasonable factors

~Finances, Legality of Use, Suitability of Premisesv.Rent control T wants out, lease req. consent. LL denied sublet. no reasonableness in denial in

residential leases. alienability not as critical, less malice by LL to exploit rent (esp in RC).Slavin v. Rent ControlCt. says let decide. Many states do.Co. trending reasonable

2.End of Tenancy: Recovery v Right to Remaina.KK may not evict without viol., but no duty to renew, except:

i.if non-renewal discriminatory evictionii.rent control/8 and no reasoniii.DC/NJ/NH require just cause in certain cases, e.g. LL repossess, non-res conversion,

D.Tenants Right to Habitable Premises1.Basics

a.LL has duty to provide possession and habitable premisesi.respectively limited by:

implied covenant of quiet enjoyment (may be CL or )~T has possessory right, not to be disturbed~LL cant deprive T of prop during lease (generally) ~dependent covenant Ts duty to pay conditioned on L no-breach

warranty of habitability~Formerly, no duty of L, today implied

no retaliatory evictions~Must be material defect

Factors: Seriousness of defect & impact on habit; time span; LL notice; T conduct,fixability

fit for human habitation, includes heat, hot water, plumbing~may be influenced by local housing codes/ /CL~non-waivable~Res. only~Remedies

MRRR: Move & sue; Repair & deduct; Reduce/withhold rent; Remain, pay, sueb.Eviction

i.ActualPhysical exclusion total/partial rent abatement (juris) damages, injunction, termination

ii.ConstructiveSING: Substantial Interference w/ QE (chronic issue, e.g. rainwater) Notice to fix no? Go.


19/23

c.Typical casei.T fails to pay rent LL sues T claims LL breached express/implied duties (CQE/WH) if yes,

abate2.Quiet Enjoyment & Constructive Eviction

a.NY loft T has partial-comm lease, musikstudio. cannot use 2/3 prem. for dust, water, shoddyconstruct by LL. Partial abatement for constr. eviction. non-rent pmt. aff. def. CE. no Go ok, onlypartial. Minjack v. Randolph

b.T irritated by nightclub opened next door, same LL. club viol lerms of lease, LL no act. gen rule thatLL must interfere for QE viol, but since resp. for enf. terms on viol. pty, liable under QE. Blackett v.

Olanoffi.LL allowed comm. in res. dist.ii.2 gen exceptions to LL act req.

Duty not to permit nuisanceDuty to control common areas

3.Warranty of Habitabilitya.Landlord Obligation to Provide Habitable Premises

i.DC slum has 1500 housing code viols. Ts refuse to pay rent. Est IWH by finding breach of violation. lack of IWH descended from agrarian value of land, not structures, the contemp.object. abrogates T duty to repair. Public policy. Precedent fails in changed conditions. theory influence.Javins v. First Natl

ii. lives in a derelict shanty. wont fix, wont pay, MM notice, evicted. Co. rejects IWH asjudicial activism, leaves to legis. Blackwell v. Del Boscoe31 years later, co. adopts IWH legis.

II.Real Estate TransactionsA.Structure

1.Attorneys Rolea.Brokers fill out form-s. Attys in 40%. Attys may be implicated in RE txns with terrorists, money

laundering2.Brokers

a.Hired to sell propertiesi.may be exclusive (commis in sale); agency (commis if broker sale); open (commis only if 1st to

find buyer)ii.Paid post-closing, or if seller back-outiii.cannot create legal doxiv.have fiduciary duty to buyer/seller representing, other party if adverse material facts (e.g. title,

phys. prob)buyers brokers gen have no duty to sellerstxn brokers rep. neither side. must use reas. skill & care, disclose mat. facts, acct. for $,

assist in comply.Co. no duty to disclose psych. impact e.g. HIV resident, homicide/suicide

3.Sales Contract (PSA)a.Writing of Offer

i.material terms: Description of Prop, Intent to sell, price, closing dateii.promises: to convey good title, inspection, accuracy, security of financing

4.Executory Perioda.b/w PSA and closing, secure finance, title, inspection

5.Closinga.deliver deed, sign piles of forms, cash.

6.Post-Closinga.deed supersedes sales-

B.Sales Contract1.Formalities: SOF, Part-Performance, Estoppel

a.Will Cts enforece oral sales-?i.part-perf.

pmt of purchase price, take poss. of prop, make improvementsii.Estoppel

reas. reliance, promise detriment, justice requires enforce


20/23

b.Old man promises house for end life care. couple sell biz, move, man dies, no house in will, nowriting. SOF blocks pt perf. Acts/promise dont unequiv. relate to land, no improve, tax,possession. Burns v. McCormick

c. orally offers to sell land, pays deposit, list house, take deposit, told no land buy. estoppel for theactions were directly rel. to land, detriment if no sale. Hickey v. Green

d.debtor-bro wants FS to secure loan, xfer made, no loan, sibs want prop back, no go. No writing, butterms discernable by actions, parol evidence, part perf. by conveyance, intent clear. Gardner v.Gardner

2.Breach of Contract/PSAa.General Terms

i.Provide Title (s)ii.No fraud in mat. facts of prop (s)

e.g. misrep., fraud suppress, fraud non-discl.iii.Reas. efforts to get financing (b)iv.Warranty of habit (new home builder)v.Remedies:

Spec. Perf.; Damages; Rescission; Leinb.Misrepresentation & Fraudulent Nondisclosure

i.buyer sees stains in home, told just repairs, all good. PSA & deposit paid. reinspect, gushingwater, massive repair cost est.. Rescission as fraud. misrep.. duty to disclose latent mat.defects..Johnson v. Davisfactors for Fraud. Misrep.: False stmt of mat. fact; known to be false; reas relied by buyer;

causing harmgenerally no duty to disclose obvious defects. some states pure caveat exc. latent defects.may be d out. General rule of non-obvious things affecting value.

c.Seller Failure to Provide Marketable Titlei.w/o mkt. title, buyer may be excusedii.primary defects:

encumbrances (poss. interests, leaseholds, covenants, liens)chain of title (forgery, misdescribed title)not based on claim of APNo violating a zoning ordinance

d.Buyers Failure to Obtain Financing in Good Faithi.implied in PSA

3.Risk of Loss in Executory Period: Equitable Conversiona.at CL the buyer bore burden after PSA, including purchase of smoldering remainsb.today, seller bears burden, or by . Insurance.

C.Deeds & Title Protection1.Formalities

a.Termsi.ID Partiesii.Describe propiii.Stmt. of intent to conveyiv.grantor signature

b.Deliveryi.at closing, actual delivery. must be beyond possessionii.must have present intent to trx titleiii.constructive delivery is intent-basediv.

acknowledged deed (notarized) is evidence of delivery (Co.)2.Title Covenants

a.Warranties of Titlei.Quitclaim (worst for buyer liability) : no wtty. that seller even has good title, convey only what

seller hasii.Special Wtty. : wtty. of no defects since seller acq. prop.iii.Gen. Wtty.: Seller promises

Present: seisin (owns the purported interest to covey), rt. to convey, no encumbrances,Future: quiet enjoyment, will defend buyer if sued for title, will cure defects

b.Remediesi.cov. of wtty. is most commonii.if dispute b/w buyer-seller: resolve by deed


21/23

iii.if dispute b/w buyer1-buyer2: resolve by recording 3.Recording Acts

a.Recording Systemi.formerly, first buyer had unconditional rt. to propii.today, depends on and records at cty. offices

b.Title Searchi.tract search: uses property parametersii.grantor-grantee: uses names of parties involved

c.Types of Recording Actsi.Race: He who records first wins (uncommon)ii.Notice: only if B2 is BFP (paid money + no notice of B1s purchase) B wins

3 types of notice (juris may allow some/all. co: all):

~Actual: If B2 was told~Inquiry: If B2 could have known by inspection, e.g. B1 occupies~Constructive: if B1 recorded

iii.Race-notice: If B2 is a BFP and B2 records first, B winsd.Chain of Title

i.Man occupies prop in Ak. BLM recommends grant, conveys quitclaim to who records. BLM issuespatent, man sells to who records. b/c no patent w/s deed no notice. N state, wins. Sabov. Horvathwild deed: deed entered on records w/grantor outside chain of title, deed null for incapable

of noticee.Fraud & Forgery

i.old lady wont convey all min. rts. only 2/15. broker writes in 15, error noted, offer to buy-outdenied, re-xfer never recorded. old lady tries to sell, title fails. remand to find if forgery (void),or only if fraud (voidable) and SOL. McCoy v. LoveForgedVoid = no possible xfer. (no good title)Fraud Voidableowner must assert true rights. If BFP buys, too late to void title

D.Real Estate Finance1.Mortgages

a.Basicsi.Promissory note: promise from borrower to repay lender principal + interestii.Mortgage (addl promises)

Pay notemaintain homeowners insurancepay property taxespledge the property as collateral

~2 theories title: lender holds title, HO has equity of redemption, foreclosure = bank notice of

sale lein: borrower holds title, lender has lein, foreclosure requires judicial process

iii.foreclosures: borrower may bid, public notice, no deficiency judgments ag. borrow in somestates, judicially supervised sale in some states, right of redemption before foreclosure,mandatory negs.

b.Subprime Mortgagesi.Bank serviced SPMs. Mass reqd AG notice of intent to foreclose on high-cost morgs, now SPMs,

mandated restructure negs. Bank practices legal, fair. found unfair, high-cost for: ARM, ARM 3%

below index, Debt-income > 50%, Loan:Value = 100%. Practice considered predatory inaggregate. Commonwealth v. Fremont

Other Material

I.Intellectual PropertyA.Intangible Property

1.Patent: inventions, processes, machines, components of matter2.Copyright: Literary/Artistic works (music, program, computer code)3.Trademark: Symbol indicating source of goods/services

B.Trademark Law


22/23

1.OG rejected as unconst.. Success under comm. cl. regs.. States register, fed has reg. list. No goodfaith mistakesa.must be used in commerce, unlike patents/copyright; may be abandonedb.no TM of generic names, TM may become generic

2.Dry cleaning pads of a special green-gold. TM exist to prevent unfair competition. Color can indicateorigin, carry meaning as do words. Acq. 2d meaning thus TMable. reduces buyer confusion. Qualitexv. Jacobsona.Lanham act: amended to allow in junction w/o proven customer confusionb.TMs may be diluted by Tarnishment or Blurring

i.Tarnishment: when competitor sells inferior goods (same name, diff products)ii.Blurring: when mark dissociated w/ specific use

e.g. goldfish ripoff cut off for similar shape, not nameC.Copyright Law

1.No state law (preempted)2.Tangible medium of expression of OG work of authorship 3.Life of author + 70yrs; in work-for-hire, 95yrs post-pub or 120yrs, whichever first4.Original Works

a.Squabble over phonebook records. provider had list, wouldnt license, competitor took anyway, suit.No copyright as the list was alphabetical. only copyright OG works, no expressive element Feist v.Rural Teleph.

II.Regulatory TakingsA.Property as Mediator Between Citizens and State

1.Defining v Defending property rightsa.Property protects rts and safeguards against interference by govtb.Balance b/w st. power to define rts (protect pub welfare) and protect indiv. for govt by limiting

state poweri.Amend. V prohibits taking of property w/o just compensationii.police powers enable govts to legislate to protect welfare

no just compensation for some quasi-takings, e.g. enviro laws, labor restrictionseminent domain is when state may appropriate property w/comp for pub welfare (balancing

test)2.Eminent Domain and Condemnation

a.Govts have power to condemn property w/ just comp.i.may be fed/st/muni/reg. ag.ii. either quick take (seize and sue) or by negotiation of fair price (and sue later)

B.Public Use1.Federal Constitution

a.NL sought to revitalize area by development. would create jobs, increase tax rev. city appvdtakings to complete project by neg, eminent dom.. No favoring of Pfizer (not on prop) thus no viol

on pvtGovt (spec.) pvt entity. Public use of land is ok. broad definition, deference, good forarea, ok. Kelo v. New Londoni.diss: taking from pvtpvt prohib, suspicious circumstances, no proof of pub. welfare, need some

scruit. city was not itself condemned like precedent. creates dangerous prec.ii.naturally, the project was a spectacular failure New London is still a piece of shit

C.Just Compensation1.owners are due fair market value not personal value nor value of buildings beyond FMV2.businesses not due comp for lost goodwill, customers, unless temporary, or by 3.if partial taking: value is of land taken + lost value of remainD.Regulatory Takings Doctrine1.Adhoc Test

a.Penn station sought to build up, denied as historical. Taking in sense of lost value of prop. Govt actsthat diminish value for public good are not compensable. no taking on prior belief of dev. PennCtl. v. NYC

E.Forced Seizures of American Indian Land1.US buys Ak. Seeks to log, displaces Indians. They seek comp. as taking. Following johnson Indians did not

have title to land to justify compensation, no prec of V, just right of occupancy; Russia never recogdtitle. Tee-Hit-Ton v. US


23/23

2.US allows settlers into black hills violating treaty allowing only for management. Indians had title fromtreaty rat. by cong.. US only offered rations as payment, not just comp, no good faith by gov as trustee.US v. Sioux Nationa.pmt of $1B sits in account for sioux

1L Property Law Outline

Documents

Transcript of 1L Property Law Outline