Property Course Outline 9/20/08 9:29 PM

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

1. The Rule of Capture: Animals Ferae Naturae

o Gillet v. Mason – Tree limb of bees swarming

Work into hiving bees establishes them as property

Seeing and carving name in tree does not w/o

(rationale soli)

o Keeble v. Hickeringill – Decoy Pond < Tranquil

Work into creating habitat for ducks creates some form

of ownership of the wild animals (animum revertendi)

o Constructive Possession – possession “constructed” by law

because it does not exist in fact; it is a legal fiction.

o Pierson v. Post – Upper middle class twit of the year

Maiming, Mortally Wounding or Killing can establish

ownership over a wild animal by removing its liberty

o Blackstone Commentaries

“If at any time they regain their natural liberty his

property instantly ceases unless they have animus

revertendi …”

o Buster v. Newkirk – Deer shot, pursued, but killed by Buster

Giving up pursuit on wounded animal loses claim, while

mortal wound and work establishes ownership

o Bible Verses from the New American Bible

“Let them have dominion over the fish of the sea, the

birds of the air, and the cattle, and over all the wild

animals and all the creatures that crawl on the ground.”

o Doctrine of Ratione Soli

Property right through soil over all that is on property

whether its wild animals or natural resources

o Doctrine of Animus Revertendi: Habit of Return

Domestication standard of owning wild animals without

physical restriction of animal’s liberty

o Reese v. Hughes – Fox on the loose, gets killed

Fox didn’t return on its own, therefore owner couldn’t

maintain ownership through animus revertendi

o U.S. Constitution

Amendment V: No person shall … be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation

Amendment XIV: … nor shall any state deprive any

person of life, liberty or property, without due process of

law.

o Taber v. Jenny – New Bedford whalers distribute

Killing, anchoring, and marking whale with a waif as is

custom in seafaring establishes it as property that can

be reclaimed in a reasonable period of time

A salvor loses right to a salvage fee if they try to

misappropriate property

o Swift v. Gifford – Arctic whalers establish custom

Iron Holds the Whale, maintains property

o Herman Melville – amateur whaler, novelist extraordinaire

Moby Dick Excerpt – Fast Fish and Loose Fish

Loose fish =fair game for anyone who can catch it

Fast fish = belongs to the person fast to it.

o “Tuna boats battle – one snags a whopper”

Fast fish becomes loose fish… free fish to capture

o Tuna Problem and Deer Problem

2. The Rule of Capture: Inanimate Objects

o Haslem v. Lockwood – Manure in the Road

Work to give value to abandoned property can make it

yours.

o John Locke – Enlightenment philosopher

The Second Treatise of Government excerpt

Establishes the essence of work put into things

establishes property and accordingly, their value

o Popov v. Hayashi – Barry Bonds Ball debacle

Pre-possessory interest established for work Popov put

into the ball, but was not quite able to complete due to

illegal activity. Equitable Division is used to split the ball

due to the clouded title of ownership.

Court uses Gray rule to establish that possessor must

have been able to maintain control against incidental

contact, but not necessarily illegal contact.

← II. Adverse Possession

1. Of Land

o Rule of Natural Resources: Derived from Law of Capture

Oil and Gas

1. One may pump oil or gas from one’s land even

if it drains from another’s land

2. Natural gas that is reinjected into the land,

either for storage or secondary recovery

purposes, belongs to the original owner. Hence an

action in trespass will not lie against such an

owner recovering the gas that may underlie

another’s land.

3. Owner owns the land down to the center of the

earth

Water

1. Old English law said water could be used freely

without regard to the other land owners

2. American rule says wasteful use of water is

unreasonable if it harms the neighbors

3. Eastern states – Riparian Rights – each person

who owns land on the water has a right to use it

subject to the riparian rights of others

4. Western states – first appropriation – the first to

put the water to productive use has rights

superior to later appropriators.

o Naab v. Nolan – Garage built with adverse possession.

Adverse Possession gives Naabs

1. Hold tract adversely or hostilely

2. Possession is actual (as opposed to

constructive)

3. Possession is open and notorious

4. Possession has been exclusive

5. Possession has been continuous

6. Claim of Title or Color of Title

(Optional) Paying taxes in Western states.

o Theories of Possession:

Maine Doctrine – bad faith needed (traditional)

Jersey Doctrine – conduct matters (objective)

Good Faith – good faith matters

o Claim of Title and Color of Title Notes

Claim of Title -- Intent to claim land as own whether by

mistake or not. Present in ever AP case.

Color of Title -- Defective title of land description. Allows

constructive possession of entire parcel described if

possessor actually possesses any part of it.

o John Stuart Mill – Utilitarian sage of the day

Principles of Political Economy

Philosophy that land must be used most efficiently

and justice should be offered to people who make

best use of land

Earning theory: want to reward occupants of land who

use it productively

Sleeping theory: penalizes land owners who sleep on

their rights.

o Oliver Wendell Holmes, Jr.

The Mind and Faith of Justice Holmes

Statute of Limitations – A man’s rooted hold on

property cannot be displaced without cutting at

man’s life

o Patrick v. Goolsby – Constructive Possession through color of

title

One cannot claim constructive possession over

unoccupied land against a man with a superior title with

some actual possession on the land.

Adverse Possession Questions --HYPOS

o St. Thomas Aquinas

Summa Theologica – Faith is higher than reason but

reason is higher than anything else… encyclopedia of all

that is know.

Whether it is natural for man to possess external things

Man has natural dominion over external things

“let him have dominion over the fishes of the sea”

o The Commentaries on the Laws of England

Blackstone tomes that have been used extensively in

English common Law for Property

The Founders’ Constitution, Blackstone Commentaries

Property is the “third absolute right” – Gov’t cannot take

it away unless for wrongdoing.

o Chaplin v. Sanders – trailer park with four owners

Hostility can remain even after adverse possessor has

learned of true owners interested

True owner’s knowledge of encroachment meets

notorious criteria

Uses Jersey Doctrine (conduct matters), where the state

of mind does not matter.

o State of Mind Note

Knowledge that one’s title may be inferior may

affect claim due to bad faith.

o Two ways to acquire title:

AP action to quiet title, or

Owner brings trespass suit to eject.

o Tacking and Disability in Adverse Possession

Tacking of adverse possession period requires privity

(which comes from a deed running between parties

during transfers of land) No title? No privity, which

means no tacking

Disability of the true owner can freeze the statute of

limitations indefinitely … tacking is not allowed. If owner

becomes disabled after AP period begins, it does not

affect the period of time.

o Law of Abandonment

If the owner shows apparent intent to abandon all claim

to the property it is essentially up for grabs.

Real Property – Adverse possession is an element of

claiming abandoned property

Squatters have no rights of title.

o Philosophes take on Adverse Possession:

St. Thomas likes it – things/property are to serve man;

people are stewards. Since property is limited some

people are left out. If the need is “manifest and urgent”

(imminent danger) it is lawful to secure another’s

property and is not theft.

Blackstone doesn’t like it – property is an absolute right

of man, to which it cannot be taken away even for the

good of community; should only be taken as

punishment of a crime.

Locke believes man deserves what he puts work into.

Labor acts like pursuit gaining possession over wild

state

Mill believes giving property back after a great length of

time would be a greater injustice than to leave the

“original wrong without atonement.”

o St. Thomas Aquinas

Whether it is lawful to steal through stress of need?

It sure is… When a good is needed in essence for

survival, the person in need gains a superior claim

over the good but bread or goods stolen out of

necessity should be paid for later.

Three Criteria

Motive – why- you want to preserve your life

Circumstance – Extreme Need

Deed – Taking property belonging to

another

o State v. Moe

Great depression raid and riot of Red Cross commissary

Need does not excuse criminal conduct, but may

mitigate punishment

o Matthew, Chapt. 12

Jesus lets his disciples eat the heads of grain in fields,

justifies taking for necessity.

2. Of Chattel

o Autocephalous Greek Orthodox Church of Cyprus v. Goldberg

Statute of Limitations doesn’t begin on adversely

possessed Chattel until true owner is aware of who has

item or where it is. As long as owner continues due

diligence to seek out the property then SOL doesn’t

begin = Due Diligence Rule.

They may pursue action once a demand has been

refused.

Bad faith purchaser must answer demand of true owner;

related to the tort of Conversion

An unrecognized country’s claim through law may be

ignored

o Georgia O’Keeffe v. Barry Snyder

Visible, open and notorious are all key aspects to get

the statute of limitations rolling. Personal property like

jewelry may be openly worn far from the owner, easily

concealing it.

o New York Rule

Demand and refusal rule starts adverse possession

Statute of Limitation – clears up ambiguity of due

diligence rule.

3. Of Artifacts

o Elgin’s Marbles

Museum’s Property rights maintained since artifacts

were lawfully purchased (regardless of whether the

government should have at the time)

Greece says marbles might as well have been stolen;

statutes are of vital importance to national heritage.

o 2002 Declaration on the Importance and Value of Universal

Museums – Discourages illegal traffic of artifacts, museums

serve international community as agents in the development

of culture – not just servants of one particular nation or

people. To restrict further would be a disservice.

o Kennewick Man and the Native American Graves Protection

and Repatriation Act

Sacred objects and remains important to native

American cultures should be returned to tribes that are

interested

If found on federal land and shown to be Indian

heritage, then they are to be returned to tribe or

federation

If found on individual owners land, nothing is expressly

said.

If in museum, then they should be returned to tribe

unless involved in research development (90 days to

return)

In Kennewick Man – est. 9,000 yo – tribes have difficulty

claiming ownership with the older the artifact that is

discovered.

o Willamette Meteorite

Considered a sacred object by Oregon tribe, but

museum had lawfully purchased it from a landowner …

compromise was met to maintain sacred access to rock

← III. Subsequent Possession: Finding (Will Finder’s Keepers hold

up in court?)

1. Lost Objects – item involuntarily parted with through neglect

o Armory v. Delamirie—Chimney sweeper finds jewel

Finder retains ownership rights over found jewel after

finding it… he keeps it against all but the rightful owner

o Bridges v. Hawkesworth – finder in public area of shop

Finder of item deemed “lost” retains claim over

landowner and may keep it against all but the rightful

owner

o South Straffordshire WaterCo. v. Sharman–Pool boy finds rings

Hired help does NOT maintain property interest over

landowner when lost property is found

Pool was not open to public, finder was employed

2. Mislaid Property – intentionally put in place and later forgotten

o McAvoy v. Medina – See what I have Found (in barber shop)

Finder of mislaid item does not maintain ownership over

landowner … w/ intent to return item to rightful owner

o The Law of the Find – Purpose is to (1) protect original

owner, (2) protect possession, (3) compensate advertiser

(finder or locus in quo owner), (4) protect LQO , (5) object

lying at the edge of property could go to finder over a land

owner.

Abandoned Property – owner voluntarily relinquished all

right, title, claim and possession

Finder’s maintain rights over locus in quo and the

person who gave up property rights

Lost Property – owner involuntarily parted through

neglect, carelessness, or inadvertence.

Finder maintains right over all the world except

the true owner prior to possession

Mislaid Property – intentionally put into a certain place

and later forgotten.

Locus in quo owner maintains property right

against all the world but the true owner prior to

possession

Treasure Trove – treasure property that has been found

after being hidden … often requires substantial period

of time to establish finder’s exclusive rights (and likely

death of rightful owner)

True owner or heirs maintain right but usually the

modern trend is to treat as lost property which is

given to finder.

Common law splits authority between finder and

locus in quo owner.

o Michigan Lost Property Act –

deliver lost property to law enforcement agency.

o Property interests in Sunken Treasure

Columbus-America Discovery Group v. The Unidentified,

Wrecked and Abandoned Sailing Vessel

Discoverers of sunken ship full of gold maintained

92 percent interest in a ship recovered against

underwriting insurance company that paid out on

the ships sinking 130 years prior.

← IV. Subsequent Possession: Transfer of Personal Property

1. Bailment

o Bailment (valet) is a Temporary transfer of possession from a

Bailor (driver) to another person called a Bailee (parking

attendant.

o The Winkfield Doctrine

Allows the bailee to recover full damages for bailors

goods when damaged or taken by a wrongdoer. The

bailor can then go to the bailee to recover its costs.

Sometimes criticized because bailee can use money as

bargaining tool.

2. Gifts —a voluntary transfer of property w/out any consideration

o Law of the gift – three parts to perfect a gift

Intent to give on account of the donor

Delivery

Actual – handing over of a treasure chest

Constructive – passing of a key or map to allow

donee access to gift

Symbolic – intialing or engraving something to

mark it as donee’s property

Acceptance on account of the donee

o Wilcox v. Matteson – promissory note under pillow

Servant never grabs gift from under dying man’s bed

during his lifetime, this clouds the delivery portion of

the gift intended for the man’s wife and forces it to

become a part of his estate.

o Gift inter vivos

Made during donor’s life; irrevocable.

o Gift Causa Mortis

Because deceased could never refute parties claiming

intent to gift, delivery cannot be excused from the

requirements to perfect a gift in their lifetime.

Made in contemplation of death; Revocable if donor

recovers

o Coconis v. Chirstakis – Wedding ring

Plaintiff (guy) lost right to claim gifted ring on account of

his lack of interest in continuing the contract. Defendant

girl was not obliged to finish wedding plans when it

appeared he already broke the deal.

o The Wedding Ring – No fault method

Wedding ring is returned to donor when engagement is

terminated to avoid determination of blame.

← V. Property in Ideas

International News Service v. Associated Press

o Property rights can be kept in information gathered by a news

service due to the expenditure of staff, money and resources

in gathering it. While information is history that cannot be

owned, the intentional taking of an other’s gathered news is

an interference in business. AP has no property rights against

public but does have quasi property rights against INS.

Holmes and Bentham – Says property is only a creation, does not

arise from value in contrast to property coming from God.

Article 1 of Const. – grants Congress the power “to promote the

Progress of Science and useful Arts by securing for limited Times to

Authors and Inventors the exclusive Right to their respective

Writings and Discoveries.”

Note on Property in Ideas: Introduction to Intellectual Property

o Patents – protects inventions and processes developed

Last 20 years after recorded at Patent and Trademark

office … may be extended for pharmaceuticals needing

to pass trials for market

Requires three things

1) Social utility (new or useful)

2) Novelty (not previously described)

3) that the subject matter of it is non-obvious

(must be beyond lay man’s skill to create it)

o Copyrights – works of art, literature, and composition

Protects five fundamental rights (bundle of rights)

Reproduction,

Adaptation,

Publication,

Performance, and

Display

Last for term of author’s life plus 70 years

Multiple authors protect survivor’s life +70years

Two requirements

Original work of authorship

Fixed in a tangible medium of expression.

o Trademarks – protects marks which distinguish one product

from another. Must be a tangible and distinctive symbol,

word, name or device. Last 10 years Three sources

Common Law of Unfair Competition

Protected 1st person to “actually” use a mark for a

product in geographic area

Lanham Act of 1946

Nationwide protection of marks extended, 1st of

multiple users to register mark gets national right,

except in markets where mark is established

Trademark Revision Act of 1988

Replaced actual use requirement to “intent to

use”

Trademark

is “any word, name, symbol, or device, or any

combination thereof”

(1) used by a person

(2) which a person has a bona fide intention

to use in commerce and applies to register

on the principal register established under

the Act to identify and distinguish goods.

Must be “so distinctive that it is capable of

performing the function of identifying and

distinguishing the goods that bear the symbol

A Trademark cannot be (inherently non-distinctive)

Descriptive term

Quality or nature “Good Oranges”

Geographical source “Florida Oranges”

Surname of person “Gary’s Oranges”

Can if combined – “Gary’s Good Florida Oranges”

What a Trademark Does (four things)

1. Identify seller’s goods to distinguish from

others

2. Signify that all goods bearing symbol come

from one source

3. Signify equal quality among items with symbol

4. Prime instrument in advertising and selling the

goods

← VI. Property in Persons

1. In Human Beings (obsolete)

o Donum Vitae (the Gift of Life) – civil law can’t replace

conscience or dictate norms concerning things outside its

competence –

inalienable rights of persons must be recognized and

respected by civil society and political authority –

child has (a) right to be born and physical integrity from

conception till natural death and (b) a right to be raised

by his parents.

o Dred Scott case

o XIII Amendment – slavery is outlawed anywhere in the US

o XIV Amendment – US Govt owes nothing to anyone for loss of

slaves from 13th amendment.

o Karl Marx – Property is contingent, not a natural right.

Society creates it for benefit of certain classes to others

detriment.

o Pierre-Joseph Proudhon – “property is theft” ownership is

inherently stealing from humanity

o Lenin’s first decree – All land is taken away for no

compensation.

o Rerum Novarum (Read Again) – Papal encyclical says

benefit of owning property is a natural right, but in the end is

meant to serve humanity; not for any one person to dominate,

even through apportioned among individual owners it is still

meant to serve common good of all people

Owning property gives motive for work

To own goods, property is necessary for human life

Man has reason unlike animals

2. In Human Tissue

o Moore v. Regents of UCAL develops two points

One does not maintain property rights in tissues and

cells excised from the body (to amount to conversion)

Physicians must disclose any pre-existing research or

economic interests prior to excising cells and tissues.

o Uniform Anatomical Gift Act

Right to sell or purchase organs is expressly forbidden.

Allows direction of anatomical gift to another or allows

waiver of direction

Right to destroy is opposed on grounds that it

encourages waste and causes negative externalities

(such as death of those who are in need of an organ and

do not receive one)

o JP II Speech to International Congress of the Transplantation

Society (2000)

Human Body is expression of the soul;

Commercialization of body parts is immoral and wrong;

To use body as an object is to violate the dignity of the

human person

o Junior Lewis Davis v. Mary Sue Davis – Frozen Embryo

Raises embryos created from divorced parties to tissues

from proprietary tissues because of its potential for life.

Not person until birth, but more than mere property

Whoever does not want child prevails

← VII. Efficient Use of Property

Aristotle says a poiticaly community, a state, can have three things

1. Common to all, 2. Nothing in common, 3. A mix

Act 4:32 – “No one claimed that any of his possession was his own,

but they had everything in common”

St. Thomas – Private property is lawful for men to posses

o 1. Man is more careful w/ it than held in common

o 2. More order in taking care of it if you know you are

responsible for it.

o 3. More peaceful state with less quarrels arising

Julio Silva Solar – communist emphasis

o Dialogue on private property – owner of the mare owns the

mule couples slavery with property in they are both additions

to natural law, slavery went away, now its property’s time;

property holders have hypnotized others into believing

property is necessary for efficient use of property.

← VIII. Estates

Interest (Remainders)

o Present Interest – Where one has a right to possession right

now and may be enjoyed at the moment of conveyance

o Future Interest – Where one enjoys the right to possess in the

future, if at all

Vested Interest – Ascertained person and capable of

becoming possessory at termination of prior estate

Indefeasibly vested – sure thing

Vested subject to total divestment – words of

condition subsequent “but if” that specify that any

child must survive A to take

Vested subject to partial divestment – member of

an open class, like a group of children

Contingent Interest – Subject to condition precedent

(can be alternative)(unborn person, unascertained)

An unborn person

An Unascertained person

Subject to some other condition precedent

Intestate – governed by statute

Testate – governed by will

Fee Simple – infinite duration or perpetuity

o Created by words “To A and his heirs …” though “and his

heirs” is often understood today

o Absolute and not subject to termination

Fee Simple Defeasible

o Fee Simple Determinable – “So Long As,” “while,” “until,”

Espouses a condition to maintain property or else it

returns to A and proper heirs. “so long as land is used

as a farm …”

Adverse possession statute of limitations ambiguous,

once use changes, new heir must act

No future interest in 3rd party

Lesser duration given = Reversion

Future interest in grantor is possibility of reverter

Estate automatically ends.

o Fee Simple Subject to Executory interest

“So long as, then to B”

Executory interests only happen after a defeasible

estate based on something happening.

Offers no future interest in O

Instead it’s in 3rd party B, which is an executory

interest

Automatically

Shifting – divests a grantee

“O to A and heirs, but if…, then to B and

heirs,” B’s interest is a shifting executory

interest

Springing – divests a grantor … springs back to

grantor and then to a new grantee

“O to A for life, then one year later to B and

heirs.” When A dies, O takes by reversion

and B then divests O one year later.

o Fee Simple Subject to Condition subsequent “In the

event that…”, “but if,” “upon condition that”

Espouses direction in certain events after life

Adverse possession Statute of limitation tolls once

grantor enters property to trigger ejectment.

Future interest in grantor is upon right of entry

Ends when O exercises the right.

Fee Tail – as infinite as the continued descendency

o Created by words “To A and the heirs of his body …”

o Lasts only as long as the line has direct descendency from A

When it runs out it can go back to O’s estate, or

Get punted to B (a collateral line, previously stipulated)

Life Estate – Old person’s best option to beat MedicAID’s lookback

period

o Signs away interests in the property on the condition that

person can live in the property until they die.

Restraints on marriage and alienation are void

o “To A so long as she doesn’t marry” – void

o “To A so long as she hasn’t married” – may be valid if intent is

determined not in restriction of marriage

o “To A, who cannot sell the land to anyone” – void due to

alienability.

Lynch v. Bunting – Property sold with the intention to be a school.

o Expression that land must be used as a school makes it a Fee

Simple Determinable

Forsgren v. Sollie – Property sold to be used for a church or home

o Phrases “on the condition that” and “this property is

conveyed to be used as and for a church or residence

purposes only”

o Although it didn’t express a right of reentry it can be assumed

through a four-part test

1. Language of the instrument – On the condition that

2. Nature of condition and its importance to the grantor

– if it was an absolute condition of the sale.

3.The amount of consideration paid for the transfer In

proportion to the full value of the estate in fee – was it a

major deal with the condition attached to it?

4. Existence of facts showing the grantor’s intent to

benefit the adjacent land by the restriction – was it

meant to benefit the grantor naturally.

Rule Against Perpetuities

o “No interest is good unless it must vest, if at all, not later than

twenty-one years after some life in being at the creation of

the interest” – John Chipman Gray

o Chilcott v. Hart

o Jee v. Audley

o RAP is not enforced against a vested interest

If land is devised to A, a bachelor, for life, remainder to

his children

o Rule applies to future contingent interests created in a

transferee (NOT in the Grantor)

Applies to third party grantees

Applies to vesting contingent interests

If interest is vested from the beginning then rule doesn’t

apply

Rule is saying make your interest vested within this

point of time or its voided

If reversion, possibility of reverter, right of re-entry; rule

doesn’t apply

Rule is a rule of proof, not of construction (doesn’t tell

us how to interpret, intent is irrelevant – you just apply

the rule to the conveyance to see if it passes or not)

o If reversion, possibility of reverter, right of re-entry; rule

doesn’t apply

o Rule is a rule of proof, not of construction (doesn’t tell us how

to interpret, intent is irrelevant – you just apply the rule to the

conveyance to see if it passes or not)

o O to A so long as…(RAP does not apply here, even if a million

yrs)

← IX. Co-Tenancies

Tenancy in Common (Default option)—Unity of possession by two

or more owners shaing a single right to possession of the entire

interest.

o They can alienate their interest without difficulty or concern

for co-tenant

Joint Tenancy –Two or more persons holding property at the same

time, same timtle to the same interest and same right of

possession.

o Survivorship is central (like a tontine)—joint tenant surviving

other co-tenant takes the entire estate.

o Four unities needed to have a joint tenancy

Unity of Time

Unity of Title

Unity of Interest

Unity of Possession

o They can alienate their interest without difficulty or concern

for co-tentant

Cortelyou v. Dinger – Tenancy in Common where one-half signed

their parcel to be a joint-tenancy with other party within Tenancy in

Common completely kosher since TiC allows party severability in

interest.

Tenancies by Entireties – Resembles joint tenancy in essence as

a common law approach to land owned by a husband and wife.

o Survivorship gives sole possession to surviving joint-tenant.

o Unities are present since common law presumption showed

married couple as one person.

o Divorce or annulment would create a tenancy in common

where each party may have a severable, one-half

interest.

Sawada v. Kokichi – Hawaiian couple conveys property to sons

before creditor could litigate claim against their assets

o No judgment can be taken against the innocent half of a

tenancy in entireties.

US v. Parcel of Real Property known as 1500 Lincoln Avenue –

o Property owned in entirety between a husband and wife. The

law 21 USC §881(a)(7) seizes home but there is an exception

Innocent party will not lose land—

Wife had no knowledge, but her interest is not severable

because it is a tenancy by the entireties.

Marriage and Property

o Genesis 2:24

o Mk 10:5-9

o The Common Law System

Early system made woman “feme covert” under the

cover of her husband.

Blackstone – “By marriage, the husband and wife are

one person in law: that is, the very being or legal

existence of the woman is suspended during the

marriage, or at least is incorporated and consolidated

into that of the husband.”

Dower

Jure uxoris

Married Women’s Property Acts

Wife retains control of property she brings prior to

marriage and may acquire more property

Spouse

Community Property States

Since both parties bring

←←← X. Property in Land

1. Disovery and the Natural Law

2. Trespass.

←←←←←←

←←←

Property II Course Outline 9/20/08 9:29 PM

← Gaudium Et Spes

← I. The Home Sale Process

The Home Sale Process

London v. Courduff (1988) –Buyer suing for unknown sale of landfill

o Caveat Emptor insulates the seller in this instance because

the buyer should have known or should have investigated

o EXCEPTION: Caveat Emptor will not protect seller when

they’ve actively concealed defects to the property.

Stambovsky v. Ackley (1991) – Buyer seeks rescission on haunted

house

o Caveat Emptor typically applies to most physical attributes of

property, however, “as is” clause did not apply to paranormal

attributes to the property.

o Poltergeists are not among common questions for

homebuyers cannot be expected to be thoroughly

researched

o Seller had told public, and periodicals of haunting but not to

the prospective buyer enables exception to Caveat Emptor

The Ghost of Nyack

“Stigmatized Property Law” Feb. 2006

o Haunted homes, murders, AIDS-inflicted residents may all be

required to be disclosed to buyers of property.

Caveat Emptor

o “If the parties are at arms length, and excepting concealment,

there is no duty on the part of the seller to disclose defects to

a buyer”

EXCEPTIONS: Defects that are not readily discoverable

upon normal inspection (i.e. toxic waste storage,

poltergeists)

Sales Contract, Sample

Estate System Definitions, Deed

o Mortgage deed – Instrument creating a mortgage. Must

contain:

1) The name of the mortgagor,

2) words of grant or conveyance,

3) the name of the mortgagee

4) a property description sufficient to identify the

mortgaged premises,

5) the mortgagor’s signature

6) an acknowledgment

o Quitclaim deed – A deed that conveys a grantor’s complete

interest or claim in certain real property but that neither

warrants nor professes that the title is valid.

o Warranty Deed – A deed containing one or more covenants

of title; esp., a deed that expressly guarantees the grantor’s

good, clear title and that contains covenants concerning the

quality of title.

o Contract for Deed – A conditional sales contract for the sale

of real property. AKA “Installment Land Contract; Land Sales

Contract; Land Contract.

Grand Lodge v. Thomasville (1970)

o A title that used indefinite description terms was found invalid

… “running about eight acres to a stake” is inappropriate

measure and cannot accurately define parcel of land.

Estate System Definitions, Mortgage

o Mortgage – A conveyance of title to property that is given as

security for the payment of a debt or the performance of a

duty and that will become void upon payment or performance

according to stipulated terms.

o Mortgagor -- homebuyer

o Mortgagee – bank.

Central Financial Services v. Spears (1983)

o When a foreclosed property is then turned around and sold in

short timing the borrower should get the surplus of what was

owed on the property.

AmJur Legal Forms, Abandoned, Lost and Unclaimed Property to

Acknowledgements, 2d edition

Haner v. Bruce (1985)

o An attaching party to a property does not lose his interests in

a property to a bona fide purchaser when a city clerk errs in

filing the attachment properly.

← II. Leasing a Residence

Leasehold Estates

o Term of Years – A landlord-tenant relationship may be created

to endure for any fixed or computable period of time.

o Periodic Tenancy – A landlord-tenant relationship may be

created to endure until one of the parties has given the

required notice to terminate the tenancy at the end of a

period.

o Tenancy at Will – A landlord-tenant relationship may be

created to endure only so long as both the landlord ant eh

tenant desire. Statutes commonly require some period of

notice to terminate the tenancy.

o Tenancy at Sufferance – The period during which a tenant

improperly holds over after the termination of his lease.

Wolfer v. Hurst (1905) – Similar outline of Tenancies

o Tenancy at sufferance —Holdover

o Tenancy at Will – see above

o Tenancy from year to year – notice required, see periodic

tenancy above.

o Tenancy for years need not be defined, determinable by the

mere expirateion of the period for wtith lands were demised.

Estate System Definitions, Landlord-Tenant

o Landlord-Tenant relationship – legal relationship existing by

contract conveying ownership to another

Lessor -- landlord

Lessee – tenant/renter

o Lease : (1) A contract by which a rightful possessor of real

property conveys the right to use and occupy the property in

exchange for consideration, usually rent … may be fixed for

life, a period or a period terminable at will. (2) Such a

conveyance plus all covenants attached to it. (3) The written

instrument memorializing such a conveyance and its

covenants.

Assignable Lease – A lease that the lesse can transfer to

a successor.

Ground Lease – A long-term (usu. 99 year) lease of land

only. Such a lease typically involves a commercial

property, and any improvements built by the lessee usu.

Revert to the lessor … AKA ground-rent lease, land

lease.

Landlord/Tenant Law

o Holdover – a tenant’s occupation of a property after the

termination of a lease.

o Self help – Common law rule that allows landlord to retake

leased premises from a holdover tenant under 2 conditions:

(1) The landlord is legally entitled to possession, such as

where a tenant holds over after the lease term or where

a tenant breaches a lease containing a reentry clause

(2) the landlord’s means of reentry are peaceable.

o Modern Rule : Self Help is NOT an option and the landlord

must instead resort to JUDICIAL PROCESS for a remedy.

Berg v. Wiley (1978) – Self help, hanging from an awning case

o Self-Help elected but not followed … public policy reasoning.

o American Rule – Implied condition that lessor is to give

“legal possession”

Gardner v. Keteltas – Actual possession not necessary

when property is leased.

o English Rule – Legal possession and ACTUAL POSSESSION

are given to lessee upon rental of the property.

Restatement follows ER because 5 reasons:

1. Landlord has knowledge or should have

knowledge that is superior to the lessee

2. Landlord has superior knowledge as to whether

the property will be available as the time will

come.

3. Landlord is the only one with the ability to evict

a tenant before the transfer of the leased property

4. Landlord is the only person who can make sure

there isn’t a holdover

5. The tenant will receive less than what is

bargained for if he must go through legal

proceedings to remove the holdover tenant

Propst v. McNeill (1996)

o Caveat Lessee – While the lessor is obligated to repair the

property, he is not liable for any damages resulting from the

property collapsing when it was leased in poor condition.

Echo Consulting Services, Inc. v. North Conway Bank (1995)

o Tenant loses access due to landlord’s remodeling:

Implied Covenants of Quiet Enjoyment – A breach of the

covenant of quit enjoyment occurs when the landlord

substantially interferes with the tenant’s beneficial use

or enjoyment of the premises.

Constructive Eviction C/A will focus on the extent of

interference with the property.

Plaintiff is allowed to seek compensatory damages for

depriving the tenant from peaceful enjoyment of

tenancy – loss of productivity at work.

Lemle v. Breeden (1969) – Rats infested in a thatched roof property

o Implied Warranty of Habitability – a property should be

warranties for livability

Derived from Law of Sales which has shown:

The public interest in safety and consumer

protection

That the burden ought to be shifted to the

manufacturer who by placing the goods on the

market, represents their suitability and fitness.

o Constructive eviction – Requires that the tenant abandon the

premises within a reasonable time after giving notice that the

premises are uninhabitable or unfit for his purposes.

Solow v. Wellner (1995) – Manhattan high rise w/ broken elevator

o Warranty of Habitability is a minimal standard NOT a

neighborhood standard.

o Bargaining for waiver of habitability standard is not allowed.

o They get an elevator because its obscenely tall high-rise but

they don’t get other amenities purely because of the

neighborhood.

1. Premises are fit for human habitation

2. The premises are fit for the uses reasonably intended

by the parties

3. That the occupants will not be subjected to conditions

that are dangerous, hazardous or detrimental to their

life.

Johnson v. Scandia Associates, Inc. (1994) electric shock appliance

o Warranty of habitability extends to personal injuries for

dangerous conditions hidden on the premises when:

(1) the landlord is a professional landlord in he business

of renting dwelling on a regular basis

(2) the plaintiff is a tenant in privity of the K with the

landlord.

Martinez v. Woodmar (1997) – Mexicans mug apartment guest

o Landowner is liable for foreseeable dangerous activity of

criminal intruders when it harms the guest of a tenant in an

area where the landowner remains in control of the premises.

Letter from J. Skelly Wright

“Whatever Happened to Landlord Tenant Law?” Gerald Korngold

“Landlord Kills Tenant and Tries to Commit Suicide

o Self Help bad …

Lindsey v. Normet (1972) rent control retaking of property

o Oregon Forcible Entry and Wrongful Detainer statute allowed

2-4 days notice to retake property after 10 days holdover of

rent. Plaintiff filed due process claim

Shelter is not a fundamental right according to the

court; if anything there is a right from interference with

property which goes in favor of the landlord.

← III. Right to Shelter

← IV. Servitudes

Easements

o Features

Entitles owner of such interest to a limited use or

enjoyment of the land in which interest exists

Entitles owner to protection against 3rd parties from

interference in such use or enjoyment

Not subject to the will of the land’s possessor

Not a normal incident of the land’s possession

Is capable of creation by conveyance

o Positive –Allows travel and use of another’s property to benefit

o Negative -Prevents action on property that would interfere

with neighbors right to air + light on property (trump towers)

o Easement Appurtenant – When the easement is created to

benefit and does benefit the possessor the land in his use of

the land, it runs with the land.

o Easement in Gross – doesn’t run with the land and only goes

with a specific person.

o Prescriptive Easements¨ -- Obtained from Adverse Possession

1. Must be adverse use

2. Must be for the period of prescription, continuous and

uninterrupted.

3. Restatement requires Open and Notorious elements

as well

o Creation of Easement by Implication —Two kinds

Existing Use – when parcel is divided and prior to the

division, a portion of the property was apparently and

continuously used in such a manner that the parites

would reasonably expect such use to continue after the

division.

By Necessity – created when a division of property

landlocks one of the parcels.

Schumacher v. Department of Natural Resources (2003)

o 9 parcel prescriptive easment problem (horse-buggy or car)

“The manner, frequency, and intensity of the use may

change over time to take advantage of developments in

technology and to accommodate normal development

Reasoning: unused land is dumb, courts will bend on

property rights significantly to allow access to property

but does not require unduly interference of another’s

property.

Real Covenants – Contractual promises to do or refrain from doing

certain activities on their properties

o Intent – parties must intend that covenant run with the land to

bind successors

o Privity of Estate – requirement for running of the burden and

the running of the benefit.

Running of the Burden – Requires Horizontal and

Vertical Privity

Horizontal - between two covenanting parties

Vertical – between owner and successor.

Running of the benefit – only requires vertical privity

o Touch and Concern – the covenant must relate to the use of

the land itself.

o Notice – succeeding parties must have notice of restrictions of

the covenant existing.

Peto v. Korach (1966) – Parcels share a sewer line. Covenant tested

o 1. Intent of the Parties (magic words are nice but not

dispositive)

o 2. Touch and Concert -> what interest would the orginal

grantor have in the covenant after selling it

o 3. Privity of Estate – requirement of running burden

Shelley v. Kraemer (1948) – Race restrictive covenants

o State action’s not allowed (court action is state action)

o Private Action: if the matter stays within covenanting parties

o HOLDING: Race restrictive covenants cannot be held or

enforced as running with the land

Hill v. The Community of Damien of Molokai(1996)–AIDS home

o Group home violates single family home covenant in

neighborhood as a Business/Hospice facility

o Court says home fulfills single family home PURPOSE …

doesn’t redefine family but comes close.

Tulk v. Moxhay (1848) – public square purchased with covenant

o If a purchaser gets a deal on property with a covenant it

would inequitable for them to turn around and make a profit

through a sale while saying the covenant didn’t run with the

land. Hence the Equitable Servitude!

Equitable Servitudes -- covenants enforceable in equity.

o No Horizontal privity is required

o Vertical privity required for burden to run

o Reasons servitudes may be found invalid under public policy

1. Arbitrary, spiteful, or capricious

2. A servitude that unreasonably burdens a fundamental

constitutional right

3. A servitude that imposes an unreasonable restraint

on alienation

4. A servitude that imposes an unreasonable restraint

on trade or competion

5. A servitude that is unconscionable

Restatement (Third) of Property, Servitudes (2000)

o Indirect Restraints on Alienation and Irrational Servitudes

Even if it indirectly restrains alienation by limiting use, it

still remains valid

A servitude lacking rational justification is invalid

o Modification and Termination of Servitudes because of

changed conditions

When conditions change to make servitude

impracticable the court may modify or terminate the

servitude while compensating beneficiary parties.

Michigan Farmland and Community Development, “Transfer of

Development Rights”

o Land swap type deal to allow more open space with transfer

of development rights to commercial areas.

← V. Nuisance and Environmental Law

Spur Industries, Inc. v. Del E. Webb. Development Co. (1972)

o Poop farm and city grow toward each other and developer

brings nuisance suit.

o Developer gets injunction but must bear farm’s moving costs

“An Introduction to Law and Economics,” Mitchell Polinsky (1983)

A Decision-Tree for Nuisance Cases—Questions to ask

o Infringement malicious?

o Infringement significant?

o Whose there first?

Defendant Increasing incompatible with surroundings?

Total harm greater than total benefit?

Total benefit greater than harm

Plaintiff Are they hypersensitive?

Total benefit v. total harm

An Update on the Calabresi-Melamed Literature on Remedies

Garrett Hardin

Tragedy of the Commons, Garrett Hardin 1968

Cornwall Declaration on Environmental Stewardship

Some Notable Signers of the Cornwall Declaration

← VI. Zoning

U.S. Const. Bill of Rights, Amendment XIV

o “… nor shall any state deprive any person of life, liberty, or

property without due process of law.”

A Standards State Zoning Enabling Act

Village of Euclid v. Ambler Realty Co. (1926)

o Zoning justification comes from nuisance reasoning: “A

nuisance may be merely a right thing in the wrong place-like

a pig in the parlor instead of the barnyard. If the validity of

the legislative classification for zoning purposes be fairly

debatable, the legislative judgment must be allowed control.

o Zoning restriction is not automatically a taking because it

restricts use. cannot be arbitrary fiat to be valid

U.S. Constitution Bill of Rights, Amendment V excerpt

o No person shall… be deprived of life, liberty, or property,

without due process of law.

Berman v. Parker (1954) District of Columbia Redevelopment Act

o Public safety, health and morals are valid purpose for zoning

o “Miserable and disreputable housing conditions may do more

than spread disease and crime and immorality. They may also

suffocate the spirit by reducing the people who live there to

the status of cattle”

o “Congress and its authorized agencies have made

determinations that take into account a wide variety of

values. If those who govern the District of Columbia decide

that the Nation’s Capital should be beautiful as well as

sanitary, there is nothing in the 5th amendment that stands in

the way.”

Village of Belle Terre v. Boraas (1974) – Long island college apart.

o “The police power is not confined to elimination of filth,

stench, and unhealthy places. It is ample to lay out zones

where family values, youth values, and the blessings of quiet

seclusion and clean air make the area a sanctuary for

people.”

Edmonds v. Oxford House, Inc. (1995) Fair Housing Act allows

local governments to restrict maximum number of occupants

o Court rules city code describing “family” composition cannot

be used as maximum occupancy restriction exempt from FHA

Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel

(1983)

o Mount Laurel Doctrine -- Municipality laund use regulations

provide a realistic opportunity for low and moderate

income housing.

Public Law 106-274, Sept. 22, 2000 (Religious Land Use Act)

Shepherd Montessori Center Milan v. Ann Arbor Charter Township

(2003) – Commercial use restricted daycare center

o ZBA’s refusal of variance after allowing predecessor use

offered “chilling effect” on the religious exercise use.

Substantial Burden – not a mere incidental effect and

not a mere inconvenience.

← VII. Eminent Domain

1 Kings 21

U.S. Const. Bill of Rights, Amend. V, Excerpt

o “nor shall private property be taken for pubic use, without just

compensation”

Hadacheck . Sebastian (1915) L.A. Brickyard

o Not a nuisance because it was there before the city was

o Not a taking despite it no longer allowing current use … still

has value to the owner – just not most profitable use.

Pennsylvania Coal Co. v. Mahon (1922) –

o Old deed allowed for coal removal w/o supports

o Plaintiffs say Kohler Act should prevent further mining, but

court says law cannot infringe on contract law (of the deed)

United States v. Commodities Trading Corp. (1950)

o “just compensation” of 17 million lbs of pepper

o Emergency Price Control Act can restrict price but it cannot

compel sale, that’s exactly what U.S. did. U.S. cannot be

forced to pay ‘retention value’ of sale

Berman v. Parker (1954) – D.C. redevelopment BEAUTY

o The ends of a public good with eminent domain can be

achieved through a private agency’s means

o The rights of these property owners is satisfied with

compensation and full title may be attained if needed.

Penn Central Transportation v. New York City (1978)

o No set formula for takings cases, but

o A taking may be more likely when there is an impact on

economic value of the land, or

o When there is an interference with the use of the property

o Mere interference with gov’t program does the common good

Loretto v. Teleprompter Manhattan CATV Corp. (1982)

City of Oakland v. Oakland Raiders (1982)

“Voices from an Accidental Wilderness: The Quabbin Reservoir”

Hawaii Housing Authority v. Midkiff (1984)

“Black Families Resist Mississippi Land Push”

“Archie Family Wins Eminent Domain Battle Against State and

Nissan”

County of Wayne v. Hathcock (2004)

Kelo v. City of New London (2005)

← VIII. Housing Discrimination

A Short History of American Civil Rights Housing Laws

U.S. Const. Bill of Rights, Amend. XIII (1865)

Civil Rights Act (1866)

o Separate but equal is not allowed anymore- through the

explanation of the next cases

Buchanan v. Worley (1917)

o Police power, as broad as it is, cannot justify the passage of a

law or ordinance that runs counter to the limitations of the

Federal Constitution- therefore, alienation of a person of color

was not a legitimate exercise of the police power of the state

Under the 14th amendment

Title 42, Chapter 21, Subchapter I §1982

Jones v. Alfred H. Mayer Co. (1968)

o Bars all racial discrimination, private as well as public, in the

sale or rental of property, and the statute thus construed, is a

valid exercise of the power of Congress to enforce the 13th

amendment

Contracts are not so sacred that they allow

discrimination

U.S. Const., Article I, §8 Clause 3

Civil Rights Act of 1964: Public Accommodations

o All persons shall be entitled to the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, and

accommodations of any public accommodation

The operations of an establishment affect commerce

within the meaning of this title

If it serves or offers to serve interstate travelers or

a substantial portion of the food which it serves,

or gasoline or other products which it sells, has

moved in commerce

(if you move stuff through commerce you

are on the hook), unless you use your own

indigenous tools, you don’t get stuff from

anywhere else, and you don’t send it out

Substantial portion- does not necessarily

mean anything

This does not apply to bona fide private club or other

establishment not open to the public

U.S. Const. Bill of Rights, Amend. XIV (1868)

Title 42, Chapter 45, Subchapter I § 3601

Title 42, Chapter 45, Subchapter I § 3602

o Fair housing extends to handicap- familial status

Handicap- means with respect to a person—

A physical or mental impairment which

substantially limits one or more of such person’s

major life activities

A record of having such an impairment

Being regarded as having such an impairment but

such term does not include current, illegal use of

or addiction to a controlled substance

Familial Status- mean one or more individuals (who

have not reached 18 years) being domiciled with

A parent or another person having legal custody

of such individual or individuals

The designee os such parent or other person

having such custody with the written permission

of such parent or other person. The protection

afforded against discrimination on the basis of

familial status shall apply to any person who is

pregnant or is in the process of securing legal

custody of any individual who has not reached 18

Title 42, Chapter 45, Subchapter I § 3603

o Application to certain described dwellings

Can’t discriminate in the sale or rental of housing

Can’t refuse to sell or rent after a bonafide offer,

or refuse to negotiate

Can’t print an advertisement that would put

people on notice

Title 42, Chapter 45, Subchapter I § 3604

You must accommodate a handicapped renter, and

allow them to perform modifications of the home- they

must restore the premises to the condition that existed

before the modification

“Childproof” Christopher Caldwell

o FHA forbade discriminating against families with children

Except it exempted developments for people 62 or older

Or 55 and older with the significant facilities and

services specifically designed to meet the physical or

social needs of older persons

ACLU Files suit for unmarried couple denied housing permit, 2006

o Had an ordinance that prohibits more than 3 people from

living together unless they are related by blood, marriage or

adoption—this is against the FHA law… ACLU filed suit

Can state limit definition of family???

Title 42, Chapter 45, Subchapter I § 3606

Title 42, Chapter 45, Subchapter I § 3607

Hill v. The Community of Damien of Molokai (1996)

o Aids Community sues their development company because

violate the FHA, They have a neutral restrictive covenant

about family only individuals related by blood or by law- only

families can live there

o Does a facially neutral restrictive covenant apply to the FHA

o FHA makes it unlawful to discriminate- discrimination

includes a refusal to make reasonable accommodations

Discriminatory intent

Plaintiff must show that the handicap of the

potential residents of a group home, a protected

group under the FHA, was in some part the basis

for the policy being challenged

Don’t meet this here, absent intent to

enforce the covenant because of some

anumus toward the use of the prop as a

group home b/c the res. Have aids…

Disparate Impact

Plaintiff must prove that the defendants conduct

actually or predictably results in discrimination or

has a discriminatory effect—do this by Four

Factors to be balanced

How strong is plaintiff’s showing of

discriminatory impact claim

o Weighted heavy—here for P

Is there any evidence of discriminatory

intent

o This is the least weighty- and favors D

What is the defendant’s interest in taking

the challenged action

o Whether it is a private right

benefitting individuals or a

governmental interest protecting the

public welfare

o Weighs less in this analysis bc the

interest served by enforcement of the

covenant is private rather than public

Is the plaintiff seeking to compel the

defendant to affirmatively provide seeking

to compel the defendant to affirmatively

provide housing to the handicapped or

merely to restrain the defendant from

interfering with individual landowners who

wish to provide this housing

o Factor strongly favors P

o A covenant that restricts occupany

only to related individuals or that bars

group homes has a disparate impact

not only on the current residents of

the communitys group home who

have AIDS but also on all disabled

individuals who need congregate

living arrangements in order to live in

traditional neighborhoods and

communities

Reasonable accommodation

An accommodation is ot reasonable if it would:

Require a fundamental alteration in the

nature of a program

If it would impose undue financial or

administrative burdens on the defendant

Title 42, Chapter 126, Subchapter III § 12181

Title 42, Chapter 126, Subchapter III § 12182

Title 42, Chapter 126, Subchapter III § 12183

← IX. Private Property, Public Good

Centesimus Annus

o

An Introduction to the Public Trust Doctrine

Glass v. Goeckel (2005)

9/20/08 9:29 PM

←