Assignment 1: Right to Exclude Others (from private property) 

1. Owner of land owns a bundle of sticks/rights - not absolutea. May have some distinct rights but not others

i. Right to excludeii. Right to transfer

iii. Right to useiv. Right to possess

2. Possession - the controlling or holding of personal property, with or without a claim of ownership

a. Two Factorsi. Intent to possess

ii. Actually controlling or holding the propertyb. First in time, first in right

i. Chronological first possessor has the better titleii. A good faith purchaser or adverse possessor can acquire title superior to those

who came into possession earlieriii. Title from a thief is void title.

c. Actual possession i. Mortal wounding gives a hunter right to possession (constructive possession)

ii. Pierson v. Post (NY 1805) Post lost on appeal because he did not physically seize the animal before another.

d. Constructive Possession - has the same effect in law as actual possession, although it is not actual possession in fact.

3. The Right to Exclude Others from Private Property (free use and enjoyment of land)a. Trespass to land

i. Physical Trespassi. No harm need be shown - nominal

ii. Intentional and brazen trespass onto private land. 1. Policy: $1 fine does not deter unlawful behavior (neither does $30

ticket)a. Protects private property rightsb. Right is hollow if legal system has insufficient means to

protect it2. Distinguished from Bernard rule (libel): If no actual harm, no

punitive damagesa. Policy: distinguishable because there is actual harm -- can

equal adverse possession3. Jacque v. Steenberg Homes (Wisc. 1997) Mobile home trespass,

when nominal damages are awarded for an intentional trespass to land, punitive damages may also be awarded at the jury's discretion.

iii. Privileged entries cannot be held as trespassii. Non-physical Trespass

i. Nuisance- An unreasonable activity or condition on the defendant's land that substantially or unreasonably interferes with the plaintiff's use and enjoyment of his land

ii. "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."

b. Trespass to chatteli. Must cause harm to be liable for trespass

i. Hamidi v. Intel, emailing employees (Ca. 2003) -Trespass to chattels does not encompass an electronic communication that neither damages a recipient computer system nor impairs the functioning.

ii. Majority: Electronic mail does not constitute harm iii. Minority: Supports injunction

c. Trespass remediesi. Injunction: must show actual harm or high probability of future harm

ii. Damages: actual and punitivei. Policy: don’t want to bog down judicial system with claims that

have no meritii. Punitive damages can be awarded to deter unlawful behavior

 4. Principal Problem: Carl leaning on Amanda's car even after being asked not to. State

conclusions as to Amanda's cause of action.a. Having clean property rules can generally help avoid conflict.b. Broad or narrow interpretation of holdingsc. Judges have choices… the law doesn't just change with the wind.d. Where is the line drawn? Most people don’t care if their car is touched in a non-

threatening or non-harmful manner but most people would not have cared if Steenberg had taken the mobile home across their property either. The importance of the point of the law is whether it be real or personal property the state has the obligation to protect it. Carl was fine leaning on her car until she asked him not to do it anymore. At that point in time Carls leaning upon her personal property became a trespass upon personal property.  

 Assignment 2: The Right to Exclude from Semi-Private Property: Free Speech Rights vs. Property Rights 

1. Sliding Scale: More it resembles public property, the less owner's exclusive right to land

a. Policy: Rights of owner v. rights of individuali. Right to exclude limited if you let people live on your land – you

can't exclude everyonei. Property rights serve human values – they are recognized to

that end and limited by it (State of New Jersey v. Shack and Tejeras (NJ 1971) - Real property rights are not absolute;

and the necessity, private or public, may justify entry upon the lands of another)

ii. The more private property resembles public property, there is a counterbalance between expressional and property rights i. Marsh v. Alabama (1946) - paramount right of citizens to

be informed overrode the rights of the property ownersiii. Owner: right to exclude most valuable in bundle of sticks, loss of

businessiv. Free Speech: have lost public forums, they too are invited on the

property, chilling effects negative, bad to discriminate as to what the speech is when generally protected

v. Good rule: if there are limitations – one day a year, etc. vi. Schmid Test - Three prong test to see if free speech is protected ()

i. What is the normal use of the property?ii. What is the extent of the public’s invitation?

1. Smaller shopping center, not free speech?iii. What is the nature of the visitors’ activities in relation to the

owner’s use?1. Cannot be an interference with the landlord's profits or

shoppers enjoyment (reasonable)2. Time, place and manner restrictions3. FACE - Free Access to Clinic Entrances

iv. NJ Coalition v. JMB Realty (NJ 1994) - (represents minority view) The extent of free speech rights on private property depend on the nature of the use of the property, the extent of the public invitation to use that property, and the purpose of the speech activity in relation to the use of the property. 

2. Principal Problem: Furnish an opinion that the pro-life people have no right to remain on the premises of this complex in which Dr. Land, an abortion doctor and also your client, maintain an office.

a. State an authority that has a strong policy reason behind its decisionb. To what extent does the content of the leaflets and the purposes of the

leafletters in relation to the nature of the business conducted on the private property influence the holding of NJ Coalition v. JMB Realty?

c. Depends almost completely on the distinction or type of premises. In NJ it has to be a regional mall or something similar and the courts draw a pretty bold line there. In most other states the cts. Don’t even make the distinction.

d. Shopping center probably wins in this case on the distinction of premises argument.

 Assignment 3: Landlord-Tenant: The Right of Exclusive Physical Possession 

1. Leasehold Estatesa. Landlord: Reversionary interest

b. Tenant: Present possessory interestc. Types of common law tenancies

iv. Tenancy (estate, term) for years:i. Fixed period

ii. Automatically terminates at fixed endingiii. Death of LL or tenant does not terminate lease (unless in a JT or

TIC of TBE, then majority holds you would need consent of both/all or your interest would end with death of who gave you the interest)

v. Periodic tenancy:i. Automatically renews if no one does anything

ii. Must give notice to terminate1. Common Law: for year to year, 6 months notice, for other, a

full period notice2. Less than one year not subject to the statute of frauds

iii. Death of LL or tenant does not terminate lease (unless JT or TC or TBE)

vi. Tenancy at willi. Either party can terminate at any time

ii. Death terminates leasevii. Tenancy at sufferance

i. When someone is wrongfully on the property and get a notice before being kicked out

ii. Usually someone who had a lease and overstayedviii. Policy

i. Death: parties have come to rely on lease for particular time (time tenancies not terminated w/ death)

2. Lease v. Licensea. Lease - a contract and a conveyance

i. Possessory interest in land (+ contract law)ii. Generally transferable

iii. Lease generally specifies specific areaiv. Sometimes a lease leads to exclusive possession of land, and sometimes

a right to exclusive possession of land leads to a lease (or a lease has been created)

v. Beckett v. City of Paris Dry Goods (Ca. 1939) - An agreement to permit the operation of a business in a store in an unspecified area is a lease where the parties act upon it so as to relate to a specific place and use the leasehold terminology in the writing

b. License - authorizes the licensee to use land in the possession of another i. Permission to USE or OCCUPY (w/ consent of owner)

i. Not lease - NO possessory interest in the propertyii. Football game, hotel room, etc.

ii. Generally not transferable iii. License generally does not specify particular areaiv. Based on contract law, not property law

i. Indefinite – can end or be kicked out anytimeii. Liability through breach of contract

v. Practical context (intent) must not be overlookedi. Look to the language, but not dispositive

ii. Lease/license may be created through intent/rights given lesseeiii. Lease generally sufficient to lead to exclusive possession of land,

but lack of a lease does not lead to lack of an exclusive possession of land (reluctance towards license if create injustice)

vi. Policy: want to enforce based off actual terms of the contract, not what they call iti. ex: tax: state may want to term a lease so they can tax, but look to

actual use (Wenner)vii. Wenner & Phoenix v. Dayton-Hudson (Ariz. 1979) - A license

agreement is formed when a tenant does not have exclusive possession or any interest whatsoever in the premises being leased Intenti. Lease v. License when the city of Phoenix imposed a 1% tax on

income derived from profit made by those that held lease agreements 

3. Principal Problem - The State Department of Real Estate is attempting to regulate the Resort on the theory that Resort is leasing real estate. Resort argues that it is exempt from regulation since it is merely offering licenses, not leases. What is the difference between a license and a lease?

a. A leasehold, being an estate, gives the right of possession or occupation;b. Licenses, easement, and profits involve only right of use. (Clayton County v. City

of Atlanta (1982) - Right to operate commissary at airport mere "usufruct" or license, not leasehold.

Interference with Actual Physical Possession and Quiet Enjoyment1. Landlord Duties/Liability

a. Interference at the Commencement of the Leasei. All: Lease = tenant's legal right to physical possession of property

ii. Majority (English rule): LL is required to deliver actual physical possession

iii. Minority (American rule): LL is not required to deliver actual physical possession i. Policy: Since the landlord is not responsible for trespassers during

the lease, they are not responsible for 3rd party before the lease begins

ii. Remedy: Tenant is excused from paying rent for the period in which they are unable to obtain actually physical possession, though that may not give the right to terminate the lease

b. Interference During the Lease Termi. Claim?

i. The tenant has a claim against the landlord

1. If the landlord interfered at the commencement of or during the lease

2. If one with paramount title (over the landlord) interfered at commencement or during lease

3. If 3rd party (neighbors) interfere and are under landlord's control

ii. The tenant does not have a claim against the landlord if1. A wrongdoer interferes during the lease (in the absence of the

landlords negligence)i. Partial Actual Eviction - occurs when the LL deprives the tenants of physical

possession of some portion of the leased property, including denial of access to the leased premisesi. Tenant entitled to enjoyment of entire property

ii. Remedy: not likely void lease (rest. against total abatement for partial actual), reduce (abate) rent, affirmative actions (damages), injunction to tear down what evicts (not best option)

iii. Smith v. McEnany (Mass. 1897) - The encroachment of a structure upon a portion of a leasehold constitutes an eviction and a defense to the entire rental payment otherwise due.

ii. Constructive Eviction - occurs when the LL so deprives the tenant of the beneficial use or enjoyment of the property that the action is tantamount to depriving the tenant of physical possessioni. Interference so extreme that reasonable person would not stay

ii. Leave?1. Majority: Have to leave to prove "truly evicted"2. Minority: Some have no other place to go, but situation is

constructive evictioniii. Remedy: Don't have to pay rent, if true constructive eviction, break leaseiv. Blackett v. Olanoff (1977) - tenants deprived of quiet use and

enjoyment when LL leased property to a bar or cocktail loungeiii. Covenant of Quiet Enjoyment - breach occurs when the landlord substantially

interferes with the tenants beneficial use or enjoyment of the premises.i. Past Duty: LL, someone under LL's control, or one with paramount title

would not evictii. Now Duty: LL substantially interfered with tenants beneficial use or

enjoymentiii. Remedy: Not likely void lease, possible reduce rent, probably damagesiv. RSP § 5 (Carner v. Shapiro) - changes in the physical condition of the

premises which make them unsuitable for the use contemplated by the parties.

v. Echo Consulting v. North Conway Bank (NH 1995) - The law implies a covenant of quiet enjoyment, which obligates the landlord to refrain from interfering with the tenants possession of the premises during the period of tenancy

2. Principal Problem: Leo leased adjoining land to Theresa and to Tri-State Auto. Theresa used a small portion of the land for trash storage for several years until discontinued by the Health Department. The small portion being used was leased to Tri-State. Theresa negotiated unsuccessfully for more space and then with the approval of Leo enclosed the said space. Tri-State stopped paying rent. Discuss the rights of the parties.

 Assignment 4: Implied Landlord's Duties and Implied Conditions to Tenants Obligations

1. Introductiona. Questions

i. What LL covenants, duties and promises are implied under different circumstances?

ii. When a LL breaches an express or implied covenant, what are the tenants remedies?

b. Implied Duties - The law is protecting the reasonable expectations of the partiesi. Custom

ii. Usage2. Warranty of Habitability (beyond contractual promises)

a. Residential housing b. Fundamental right: cannot be waived (even by staying on the premises)

i. Policy: Not allowing WoH to be waived causes LLs to raise rent and abandon cheap housing options (rent $ up); in sum, sometimes will benefit and sometimes hurt those it's designed to protect

ii. Knight v. Hallsthammar (1981) - A landlord's breach of the implied warranty of habitability of rented premises constitutes a defense to an unlawful detainer action even where the tenant remains in possession of the premises after the alleged breach

c. Maintain property according to reasonable standard of habitabilityi. Building code base line

ii. Standard may be higher or lower that building codei. Ex: standards for rent control and low income housing differ from

base lineiii. Doesn't include things which are unnecessary (air conditioning probably

not, but heat probably yes)d. Split: LL liable without notice

i. Policy: Otherwise tenant can bring suit years later for problem LL didn't know of (Knight dissent)

ii. Split: LL liable if has reasonable time to fix the problem (Knight)i. Policy approach: least cost avoider – who would be in the better

position to know (discourage frivolous litigation)e. Retaliatory Eviction: Landlord cannot evict tenant for reporting housing code

violations

f. Remedy: Possibly void lease, temporarily withhold rent, reduction in rent, repair and deduct, affirmative action (pay and sue LL)

1. Warranty of Suitabilityi. Split: Commercial property (Davidow, unfit for a medical office)

ii. Rationale: Cannot assume commercial tenant more knowledgeable than residential

iii. Increased trend of consumer protectioniv. Can be waivedv. Davidow v. Inwood North ( 1988) - There is an implied warranty of

suitability by the landlord in a commercial lease that the premises are suitable for their intended commercial purpose.

2. Tenant Remedies (VTRRA)i. Test for non-expressed promises

1. Was it implied2. Does failure justify termination of lease3. If not termination, what remedies for tenant

ii. Policy: Independent v. Dependant Contracts 1. In past: contracts between LL and tenant were "independent" and

thus tenant required to pay regardless of LL's actions (only remedy was for breach of contract)

2. Present: according to case and good sense, dependant and thus tenant can offset costs w/rent

i. Void lease1. If actually evicted or constructively evicted (Majority: and left)

ii. Temporary withhold rent1. Encourages LL to fix promptly 2. Some courts suggest tenant pay into escrow account – shows T good faith

(in case court rules for LL)iii. Reduced (abated) rent

1. Pay long term lower rent and live with problem2. Amount usually determined by court

i. Ex: LL breached through partial actual eviction (so don't pay on part you don't use)

iv. Repair and deduct (I fixed it and am taking it out of rent) (Marini, broken toilet)1. Must give LL notice so they have opportunity to fix 2. Could also repair and sue for cost of repair (Fee doesn’t like)3. Marini v. Ireland (1970) - Implied covenant of habitability and

livability fitness, LL must maintain leased property in livable condition. If LL fails after notice then remedies

v. Affirmative Action (type of damage, pay and sue LL – limited by contract actions)1. Fair rental value less the fair rental value of the un repaired condition

i. Contracted rent is only evidence of what fair rental value is2. Contracted rent less value in the un repaired condition

i. 1 & 2 require an expert testimony

ii. May compare to similar residences3. Percentage reduction in rent – reduced by % enjoyment of the premises

has been reduced (Wade, UT)4. Wade v. Jobe (1991) - There is a common law implied warranty of

habitability in residential leases3. Types of Common Law Tenancies

i. Tenancy for Years1. Has a fixed duration2. Death does not terminate3. Creation - express agreement between LL and tenant4. Termination - automatically at the end of the period specified in the

agreement. Notice not necessary.ii. Periodic Tenancy

1. Continues for successive periods until terminated (week to week, month to month, year to year)

2. Creation - by express agreement but is most often inferred from the facts3. Termination - notice required (6 months for a year to year, notice equal to

the length of the period)iii. Tenancy at Will

1. Rests on the uncertain foundation of the continuing agreement of both parties, no designated period of duration

2. Creation - express agreement, but usually inferred from the circumstances

3. Termination - at the will of either party, or at the death of either party… modern statutes require notice of intent to terminate.

iv. Tenancy at Sufferance1. Holdover tenant

 4. Principal Problem: In May, Ted and Theresa Toro executed a three year lease for

a luxurious country estate @ $3000/month. The pool broke. Repair cost $5400. They want 1 of 5 remedies: i. Pool unrepaired but pay $2400/month (market value)

ii. Repair pool and reduce rent $5400 iii. Abandon the premises for breach of implied promise to repair. iv. Pay to repair and sue for the $5400 (must be certain) v. Sue to recover difference between actual rent and fair value rent

 Assignment 5: Landlord's Tort Liability for Personal Injuries

 1. Landlord's Tort Liability for Personal Injuries: Who should fix?

1. Old law: Caveat Emptor – LL had no duty to repair and no liability for personal injury due to lack of repairi. Lessor not liable for harm caused by a dangerous condition that

existed when lessee took possession or came into existence after lessee took possession (only duty to disclose latent defects)

ii. Exceptions:1. If landlord contracted to make repairs, and didn't, but could

have if he had used reasonable care, the landlord was liable for the plaintiff's injury

2. If knew of a dangerous condition that the lessee did not know of, and the landlord failed to warn the lessee

3. LL liable for common areas & certain open spaces, but only if could be discovered through reasonable inspection and had reasonable time to repair (if not common area, unless specified in contract & negligent in not repairing, not liable)

2. Present (common/statute): i. LL has implied duties in "new common law"

1. Majority (over 40 states): Through courts or legislature (Merrill, WY waited for legislature)

ii. LL may have implied duties other than the warranty of habitability (if pool part of rent, implied duty)

3. Landlord liable for things which would be disclosed by a "reasonable inspection"i. Foreseeability: Degree to which landlord could foresee makes the

more liable4. Frameworks for determining the landlord's liability

i. Strict Liability for defects1. Split: If LL participates in the construction of the of the

building2. LL generally not strictly liable (without negligence)

i. Policy: not continuing relationship with manufacturer, not expertise, not able to exert pressure to make product safe

ii. Strict Liability brought by noticeiii. Strict Liability based on the warranty of habitability

1. Some: no notice needediv. Negligence (Merrill, WY reasonable care all circumstances)v. Negligence with breach of warranty of habitability (Asper, girl

killed in fire) (Trentacost, liable 4 foreseeable robbery1. Housing Discrimination

1. Common Lawi. Complete freedom in selecting or rejecting tenants

2. Modern Law: FHA (Fair Housing Act)i. No discrimination (behavior) on the basis of (RCRSFH)

1. Race2. Color/National Origin3. Religion4. Sex

i. M/F, not sexual orientationii. Schools can discriminate based on sex because of Title 9

(education)

5. Familial statusi. Being a child or having a child under age 18

ii. Does not mean marital statusiii. Exception: Some permissible for retirement communities

6. Handicapi. Includes AIDS and possibly alcoholism but not drugs

7. MAJORITY: Cannot disproportionately affect minorities regardless of intent (Starrett, no quotas)

8. Additional: Unruh Rule for CA – no arbitrary discrimination (Marina Point, not against children)

9. Exception: Miss Murphy Rulei. If you have 4 units or less, FHA does not apply

ii. Except: Advertising rule still appliesii. No discrimination in (Behavior) (STNFH)

1. Sale or rental2. Terms or privileges3. Notices, Statements, or Advertising with prejudice (Female

roommate wanted)4. False representation (saying housing is unavailable when it isn't)5. Must reasonably accommodate handicapped

3. Reasonable Restrictionsi. Limiting number of people in unit

ii. Legitimate business reasons that don't violated FHAiii. Everything not forbidden by FHA okay unless forbidden by state statute

(Unruh)1. Can for marital status, sexual orientation, occupation (Kramarsky,

lawyer), pets (unless medical)2. Assignments and Subleases

1. Assignment i. Liability and relationships

1. Tenant 1 conveys to Tenant 2 leaving no interest or reversion in the grantor

2. Landlord can go after Tenant 1 under privity of contract, and possessing tenant for privity of estate

3. New tenant can require LL to fulfill obligations4. If chain of assignees, assignees in middle not liable to LL (A.D.

Juilliard & Co.)ii. Decisive factor for an assignment

1. All the rights are transferred (whole term of the lease) iii. Indicators of an assignment

1. If part of the property is fully transferred (most) courts treat this as a partial assignment

2. Payment is made directly to the landlord3. Intent in the contact 4. Same rent

i. Exception: If payments are made from lessee/assignee to tenant and they are higher than rent (but rest indicated assignment) most courts treat this as an assignment

5. No right to repossess2. Sublease

i. Liability and relationships1. Tenant 1 conveys to Tenant 2 but keeps an interest or reversion in

the grantor2. LL can only sue Tenant 1 for privity of contract, cannot go after

Tenant unless through equity3. Sublessee must go through lessee to demand action of landlord (no

legal relationship with LL)ii. Decisive factor for a sublease

1. If not all the time of the lease is transferred it is a sublease (reversionary interest)

iii. Indicators of a sublease1. Less than all the rights are transferred2. Payment is indirect3. Intent in the contract matters4. Different rent5. Right to repossess

3. Landlord can enforce promises against assignees or sublessees on two theoriesi. Privity of Contact (Contract theory)

1. Exists through those who have contracts: LL and T1, T1 and his assignees/sublessees, and LL and those who expressly enter into contract with LL

2. Privity of Contract is between the first two parties (LL and tenant), and further if expressly assumed

3. Policy: Keeps original lessee from pawning off responsibility ii. Privity of Estate: Like a football being passed – the person with it has

the privity of estate1. With whoever has control of the premises even without consent of

assignee2. Not for subleases (insulated by lessee) but LL can go for damages

through equitable remedies4. Tenant's Right to Assign or Sublease

i. If "not transferable" LL may withhold consent, but stronger case if expressly restrict "for any reason"

ii. If "not transferable without owner's consent" MAJORITY holds LL cannot arbitrarily withhold consent1. Cannot withhold for more $2. Can withhold for pets, financial viability, negative info from

previous LL, number of people3. Tenant's Breach: Landlord's Remedies

1. Duty to mitigate

i. MAJORITY: Landlord required to mitigate (view is that lease is commercial transaction rather than estate)1. Landlord can subtract cost of advertising etc. to attract new tenant2. If reasonable effort, and new tenant pays less or needed alterations

to bldg. breaching tenant owes3. Policy: Get LL back to as close original condition as possible

(reality a lot of effort on LL)ii. MAJORITY: Tenant has burden of proof to show LL did not make

reasonable effort to mitigate (Isbey, Ruud, both tenant has to prove LL did not make good faith effort)1. Reasonable effort: what LL did in past and what other LLs

currently do for similar properties iii. Policy for traditional rule

1. Doctrine of Surrender: If LL enters premises, "accepted" tenant's "offer" to surrender the premises

2. Equitable: Not fair to force innocent LL to seek out new tenants3. Tradition: long standing conformance with property laws (rather

than "contract")iv. Policy for duty to mitigate

1. Easy to clarify mitigating conduct is not acceptance of surrender2. Equitable: Outweighed by rules requiring only reasonable

mitigation efforts3. Tradition: Was developed for agricultural land and today, not

complete conveyance as in past4. Economies benefit because returns land to productive use5. Trend disfavors contractual penalties6. Mitigation is favored in other areas of the law

v. ALL: $ from 3rd party offset from amount defaulting tenant owes2. Landlord's Remedies

i. Sue at end of lease for allii. Sue in middle, collect for past, and new suit for future $

1. Policy: Difficulty of several claims and chance tenant will leave jurisdiction

iii. Sue in middle, collect for past, retained jurisdiction for future $ (Mutual of Omaha, Utah company too loud)

iv. Sue in middle, collect for past, speculative $ for future1. Policy: Too uncertain – will favor one side

 Freehold Estates 

Estate – freehold other than lease

Language Future Interest in Grantor

Future Interest in 3rd Party

Characteristic

Fee Simple Absolute

“To Joe (and his

None None Infinite Duration

heirs)”

Fee Simple Determinable (subject to condition precedent)

“To Joe as long as…”

Possibility of reverter

Executory interest (Fee Simple subject to executory limitation)

Potentially Infinite Duration, Condition Precedent Attached

Fee Simple subject to Condition Subsequent

“To Joe, but if…”

Right of entry Executory interest (Fee Simple subject to executory limitation)

Potentially Infinite Duration, Condition Subsequent Attached

Life Estate “To Joe for life”

Reversion Remainder (vested or contingent)

Measured by someone's life

Determinable Life Estate

“To Joe for life as long as”

Reversion, possibility of reverter

Remainder (vested or contingent), Executory Limitation

Measured by someone's life and Condition Precedent is Attached

Life Estate Subject to Condition Subsequent

“To Joe for life, but if”

Reversion, right of entry

Remainder (vested or contingent), Executory Limitation

Measured by someone's life and Condition Subsequent is Attached

Lease (leasehold) “To Joe for 10 years”

Reversion Remainder (vested or contingent)

Measured by finite period other than someone's life

 1. For all estates, don’t forget to list out the present interest, the future interests, and who the

reversion goes to2. Present Possessory Estates

1. FSA, FSD, FSStCS, FSStEL, LE, DLE (x2)2. Fee Simple Absolute

i. Language1. "to A"2. "to A and his heirs"3. "to A in a fee simple"4. If "to A so long as no attempt to sell," or "no marry" restraint is

void and A has a fee simplei. Policy: courts frown upon restrictions on alienability (ability

to sell)ii. Duration: Yours forever

iii. Future Interest: None1. A living person has no heirs, only prospective heirs2. Heirs only receive what has not been disposed of (no guarantee)

i. Owner has all the rights to land, but not absolute dominion (zoning, taxes, etc.)

1. Fee Simple Defeasiblei. Estate with a string attached: FSD, FSSCS, FSSEL

ii. Fee Simple Determinable1. Language hints: durational language

i. While, during, until, for so long as, during the time that 2. Condition Precedent3. Duration: Potentially infinite so long as you don't violate condition4. Future Interest: Possibility of Reverter – (Executory interest if in a

3rd party)5. Breach: Automatically reverts to grantor

iii. Fee Simple Subject to Condition Subsequent1. Language hints: the small print

i. "Provided, however" "but, if" "on condition that" " if, however"

2. Condition Subsequent 3. Duration: Potentially infinite so long as condition does not occur4. Future Interest: Right of Entry or Power of Termination 5. Breach: must take affirmative action – not automatic (executory

interest if in a 3rd party)iv. Fee Simple Subject to Executory Limitation

1. Language hints: to new personi. "until...then to" "but if...then to"

2. A FS with a reversion (FSD or FSSCS) in a 3rd party (rather than original grantor)

3. Duration: potentially infinite so long as4. Executory Limitation is subject to rule against perpetuities

2. Life Estatei. Language: (not in years)

1. To A for life,2. To A for the life of B3. To A until he dies

ii. Future Interest Retained by Grantor: Reversioniii. Future Interest Created in 3rd Party Grantee: Remainderiv. Limited by the law of waste (goes so someone when you die – life person

must not commit waste)v. Pur Autre Vie: life estate is measured by the lifetime of someone other

than the person with the interest3. Defeasible Life Estate (can either be determinable life estate or a life estate subject

to a condition subsequent: see language hints under fee simple divisible)i. Future Interest Retained by Grantor: Reversion, Right of Entry

ii. Future Interest Created in 3rd Party Grantee: Remainder, Executory Interest

4. Leasehold Estate (See other sections for more on leases)i. Future Interest Retained by Grantor: Reversion

ii. Future Interest Created in 3rd Party Grantee: Remainderiii. Limited by the doctrine of waste

1. Future Estates1. Possibility or reverter, right of entry (power of termination), reversions, remainders,

executory interest2. Created in the Grantor

i. Possibility of Reverter (FSD)1. Automatically goes to grantor when condition is violated

ii. Right of Entry (FSSCS)1. Gives grantor option to repossess when condition is violated

iii. Reversion (LE)3. Created in a 3rd Party

i. Rules1. Must be created at the same time as the will2. Never follows a FSD, FSSCS

ii. Remainder Interests (never follow a fee)1. Absolutely Vested Remainders

i. Generallyi. Ascertained party

ii. Indestructibleiii. Transferable

ii. Ex: "to A for life, then to B" "to A for life, remainder to B for life"

iii. No conditions precedent other than the natural expiration of prior possessory estates

iv. Must be theoretically possible to determine who will get possession when prior estates end

2. Vested Remainders Subject to Divestmenti. Generally

i. Ascertained partyii. Condition Subsequent (but, if, however if,

provided that)ii. If A has right to immediate possession when preceding estates

determine3. Vested Remainders Subject to Open

i. If additional people may later qualify for membership in a class

ii. Closes when gift availableiii. Subject to RAP

4. Contingent Remaindersi. General

i. Unascertained party ORii. Condition Precedent (if, while, during, so long

as)iii. Subject to RAP

ii. If must fulfill some condition other than natural expiration of preceding estates

iii. Executory Interests1. Cuts a life estate short2. A 3rd party who has the possibility of reverter or right of entry3. Subject to RAP

4. Subsequent OR Precedenti. Do NOT ask when the condition will apply or occur

ii. Precedent: If, while, during, so long as (durational flavor)iii. Subsequent: But if, however if, provided that (small print)iv. Distinction will be in the language!

2. Rule Against Perpetuities1. Only violated through future interests

i. Executory Interestsii. Contingent Remainders

iii. Vested Remainders Subject to Open (all or nothing)1. Vests when someone qualifies and the gift is available for

distributioniv. Trusts

1. Subject to RAP2. Not a separate estate, but a form that divides legal and equitable

interests3. To A for the use of B (for when women couldn't own property) –

savings clause so long as it vests within 21 years of a life in being alive at the time when the trust was created

2. Not violated through reversionary interests, absolutely vested, or vested subject to defeasance

3. Common Law Rule i. Unless it must VEST or FAIL with 21 YEARS AFTER A LIFE IN

BEING, it is ILLEGAL1. So, if at the time interest is created there is a possibility it could

remain contingent for over 21 years, then illegal2. Vest means

i. It becomes possessory ORii. Not subject to a condition and it must become possessory at

the end of a set period of time3. Interest is created by a will when testator dies and created in a deed

when the deed is delivered (unless deed is revocable – then interest is created when it is irrevocable)

ii. If you can find ANYONE who is alive at the time of the conveyance at whose death you will know the result, you are ok1. Rule: Life in being + 21 years2. Validating life: the life who validates the conveyances (can be

unborn)iii. Figuring it out

1. Find the questionable conveyances

2. For personal contingencies, identify all relevant people and kill them offi. Then see if it will vest in 21 years

3. For non-personal, determine whether the resolution of the contingency is valid in 21 years

iv. If invalid, strike that section of the will (but prior conveyances are still valid)

4. Policyi. Without, gives more control to the unborn and people are not interested

in investing if land is tied up5. Modern Approaches

i. Cy pres: Reinterpreting a conveyance to avoid invalidity (by judge deciding meaning)

ii. Wait and See – if don't know at the time it is created if it will vest or fail (wait the 21 years and life)

iii. Uniform Statutory Rule Against Perpetuities (USRAP)1. If it is valid under the common law than it is still good 2. If it's not valid under the common law, then the wait and see is 90

years3. Even if it's not valid under 1 or 2, then the judge can revise it – not

likely to need thisiv. Abolishing the Rule (MINORITY, Utah)

3. Life Estates and the Doctrine of Waste (vested life estates and split for contingent estates – depends on nature of contingency)

1. Life tenanti. Entitled to rents, interests, and dividends

ii. Responsible for ordinary maintenance expendituresiii. Not responsible for major improvementsiv. If outside circumstances make property valueless in present condition,

then may be allowed to change property (Melms, surroundings went industrial so allowed to grade house) but mere increase in value not enough

2. Remaindermani. Entitled to proceeds from sale of property

3. Two Types of Wastei. Permissive (neglect) (Zauner, leased premises, not surrender, but did fail

in repair)1. Tenant fails to preserve and protect the property by exercising the

ordinary care of a prudent person2. Payment of taxes and interests on the mortgage (not required to

spend more than property receives)ii. Commissive

1. When a tenant damages a property in a way that the value is permanently reduces

4. Remedy (not double relief)i. Legal relief: damages (more likely if sure to become possessory)

1. Policy: varies on probability land will become possessory2. Co-tenant can bring action for waste during life of co-tenancy

ii. Equitable relief: injunction – make them fix (more likely if contingent)1. Good idea: If promise to repair, pay into an escrow account

iii. Forfeiture of the estate (more extreme)1. Must have done something extreme like stop paying taxes, willful

abandonment, or willfully give up the property (McIntyre, lost because stopped paying taxes)

2. Leasing premises probably not surrender 

Concurrent Estates

Concurrent Estates

Requirements

Survivorship

Transferable

Tenancy in Common

Default No Yes

Joint Tenancy

4 unities with rights of survivorship

Yes Yes(but turns into a Tenancy in Common)

Tenancy by the Entirety

Marriage + 4 unities

Yes No

  

1. Concurrent estate – when two or more people own interest in the same property at the same time

1. Generali. Equal right to possession and enjoyment of the whole property,

regardless of % share (cannot exclude)ii. No reimbursements for improvements (except in partition)

iii. Profits splitiv. No rental costs for each other

2. Intenti. Who drafts the will a factor – if joint by an attorney, taken as joint, by

lawman, maybe not

ii. "Jointly and not as tenants in common" (Kurpiel) – sufficient for joint tenancy

iii. "For their joint use and benefit" (Weems) – tenancy in common, jointly not enough for JTs

3. Types of tenanciesi. Tenancy in common

1. "to Alyssa and Ben", "to A & B", B devises to "C&D" (A 1/2, C 1/4, D 1/4)

2. Default if ambiguity (unless marriage) - favored by the law3. Each owns individual part and each has right to possess the whole

i. Undivided interest – neither tenant can exclude the other from any portion (would be ouster)

4. No requirement that interest be equal, but default is equali. If unequal interest, different % for earnings (rents)

5. No right of survivorship – Shares pass to heirs6. Freely transferable7. Minority: Special exceptions (not married but close) may have right

of survivorshipii. Joint Tenancy

1. "to Alyssa and Ben, joint tenants, not tenants in common" adding not tenants in common gives weight to joint tenancy (Kurpiel, "jointly, and not as tenants in common")

2. "to A & B as joint tenants", B devises her interest "to C & D" – doesn't work, all goes to A because right of survivorship and must pass during life

3. "A, B & C joint tenants", C to D, makes A & B joint tenants and D tenant in common

4. "For their joint use and benefit" is not enough to determine a joint tenancy (Weems)

5. Right of survivorshipi. Upon death, shares pass to living tenant as fee simple absolute

ii. Can sell rights for life of A, but A cannot pass rights after life6. Four unities – must be present to form a joint tenancy – failure of

any one creates a tenancy in common (TTIP)i. Unity of time – must take interest at same time

ii. Unity of title – must take interest from same sourceiii. Unity of interest – have equal and identical interest iv. Unity of possession – have possessory interest in the whole

7. Equal and undivided interest – creditors may reach8. Termination and Severance

i. May be terminated by mutual agreementii. May be terminated by conduct indicating all parties view

interest as in commoni. Bad to assume party wanted to give up joint

tenancy

ii. Look to intent (lease, probably no intent to give up JT)

iii. May be terminated by destruction of one of the unities (ex. outright conveyance)

i. Some states allow tenant to deed/sell to themselves, breaking the joint tenancy

1. Policy: if can sever through straw person, why not to self (Minonk)

ii. Some: pledge severs unity of title (mortgage and pledge only diff. in type of prop.)

1. Policy: lien is right to possess and retain property until charge paid (Hutchinson, grandson filed bankruptcy)

iii. Some (trend towards): mortgage does not sever unity of title (Harms)

1. Policy: mortgage is a lien rather than a deed, thus unity of title not severed

iv. Can be converted to a tenancy in common by the act of just one tenant

1. Permission or awareness of other joint tenant not required

2. If multiple joint tenants, and one severs, rest still have joint tenancy (the one has a tenancy in common)

iv. Other approachesi. Conditional Severance

1. Joint tenancy severed during term of lease, but revived upon termination of lease if both joint tenants still living

ii. Temporary or Partial Severance1. Joint tenancy survives during lease, but

surviving joint tenant's interest subject to lease

v. Survive death?i. Some (trend towards): a lien/mortgage/interest dies

with the joint tenantii. Policy: problem, does not protect the mortgagee's

interest vi. Cannot convert in will, must be during life

iii. Tenancy by Entirety1. Right of survivorship2. Four unities + marriage (see above)3. Equal interest4. Termination: only by divorce, death of one spouse, or voluntary

partitioning

i. Insulated against conveyances – not broken by unilateral act of spouse

5. Creditors may not reach the interest of the debtor spousei. Some: May reach after death

ii. Policy: Protects non debtor spouse6. Weird rule: Husband and wife are one unit if reference to that status

(Margarite, "his wife" "2 ands") & (Adamson, "husband and wife" "2 ands")i. If three, single gets 1/2 and couple gets 1/2

ii. Language indicationi. Use of "husband and wife" and use of double ands

iii. Exception: if not referred to as husband and wife (if 3, 3 1/3s) (Kurpiel, "jointly, and not as tenants in common" – no reference to marriage)

iv. Some: Default if ambiguity is tenancy by entirety for marriage iv. Community Property

1. 10 states2. Only between husband and wife3. At least half the community property goes to surviving spouse

4. Partitioning concurrent estate (tenancy in common and joint tenancy)i. Voluntary partitioning – if all co-tenants agree

1. Division in kind: physical division – creates possessory interest2. Division by sale: co-tenants take chares of the proceeds

ii. Partition by judicial proceeding1. Joint tenant or tenant in common has right to demand partition2. Tenants by the entirety and holders of community property no right3. Division in kind: physical division – creates possessory interest4. Division by sale: co-tenants take chares of the proceeds

2. Concurrent Estates: Administration1. Ouster: When one co-tenant claims exclusive possession

i. Exclusive possession can be through excluding the other from exercising rights to the property (Gillmor, can't graze sheep on Utah land)

2. Not Ousteri. The possession of a tenant in common is presumed to be the possession

of all tenants until the one in possession communicates to the other the knowledge that he/she claims exclusive right or title

ii. Even if one tenant exclusively uses the property, not ouster unless the other is prevented from use

iii. Some: May offset 1/2 fair rental value if cotenant exclusively usesiv. Majority: Not liable for own rent (value of possession), but liable to

cotenants if receives rent from 3rd party3. Liability: Liable to pay for 1/2 the rent to ousted co tenant since ouster

i. If A is in exclusive possession1. A

i. Not liable to pay rent (majority)

ii. Can charge B 1/2 taxes, interests, carrying charges, mortgage payments

i. But B may offset rent (majority/some, Barrow, because divorce)

iii. Can only charge for maintenance expenses if negotiate with B first

iv. So, if value of A's use is greater than expenses to B, B owes nothing (usually the case)

2. Bi. Some: can offset A's fair rental value from what A charges B

(1/2 total)ii. If A is ouster

1. Ai. can offset rent owed to B by 1/2 taxes, interests, carrying

charges, mortgage payments, & maintenance expenses2. B

i. can charge A's fair rental value from what A charges B (1/2 total)

4. Three different types of expensesi. Compensatory: If A charges B because A paid these things, but A was

in exclusive physical possession, then B can offset these charges by the market value of A's rent1. Taxes, interests, and carrying charges (mortgage) (can charge based

on share)2. Maintenance expenses (can only offset, never charge)

ii. Not compensatory: but would be considered in a partition action 1. Improvements ("improver" gets full increase or decrease)

5. Remedy: If ousted i. Marketplace value of the occupancy of the property

ii. Ejectment demanding right to joint possession1. If don't seek remedy after ouster, then may lose to adverse

possession (if not ouster, cannot adverse)3. Marital Property

1. Old Common Lawi. Dower: Widow entitled to life estate in 1/3 real estate - problem if

marriage $ not in real estate1. Applies to all husband's property during marriage, even if conveyed

away – thus, if married, need to buy wife's interest (not common but important)

ii. Curtesy: Widower gets life estate in all wife's land provided a child is born alive

iii. Today: Common law not used by any state and gender based discrimination unconstitutional against females

2. Community Property Jurisdictionsi. Property owned 50-50 regardless of who formally earns it

1. Shared from the moment it is earned (effects management during marriage)

2. Unless owned before marriage or after marriage through gift, devise, bequest, or descent i. Remain separate if you keep it separate – difficult burden of

proofii. Policy against: spouse no ownership, ALI proposes gradually

from separate to communityii. Upon death, surviving spouse entitled to at least half

iii. Upon divorce, spouses have equal rights in community property (some equitably, some equally)

iv. Policy for: Both parties contribute equally, although not necessarily identically

3. Common Law Property Jurisdictions (Statutory)i. Management of Property Acquired during Marriage

1. Each spouse over their own earnings during marriageii. Death of one Spouse

1. Can choose elective share or the willi. Minimum entitled to usually 1/3-1/2 ("forced")

2. Look to many factors – trusts/interests made close to deathiii. Disposition of Property on Divorce (on equity and fairness)

1. Factorsi. Contribution of each spouse

ii. Needs of each spouse (Minority)iii. Duration of the marriageiv. Present and prospective earnings of each spousev. Age (Simmons, woman significantly older and fewer years to

earn)2. Modern trend to consider the nonmonetary contributions of

nonworking spouse (ALI view)3. Some: Probate – if married 15 years or longer, 50% - fewer years =

entitled to less4. Community v. Common Law

i. In common law state, if poor spouse dies first, not leave anything to heirs, but in community, entitled to half

ii. For both, group all assets into marital estate and then divideiii. No TBE in community property statesiv. JT and TC only by consent of both parties – then converts it from marital

property1. Upon death, get share of JT/TC and then rest according to marital

property laws5. Marital Property v. Spousal Maintenance (Alimony)

i. Majority: Emphasis on property division (can be $ for value of degree, $ for contribution towards degree)1. Policy: Clean break, permanent, fixed

ii. Minority: Alimony (need based or other factors)

1. Policy: Good when couples have no real or personal property6. Degree, Marital Property?

i. Majority (policy): A degree or license is not marital property (Simmons)1. Disposition should not be based on potential earnings - could

injure/die (definition of property is based on present, not potential existence)

2. Intellectual achievement: terminates on death, not inheritable, not assigned, sold, or transferred

3. Marriage not business arrangement or economic partnership4. Shouldn't force career path and earnings5. Option of alimony ("wait and see" - could be nominal thus reflects

true value of degree)ii. Vast Minority (policy, law review supports): A degree or license is

marital property (O'Brien, supported medical license)1. License is valuable, other spouse should be compensated if

supported spouse in attaining2. Accounting as marital property allows for clean break vs. alimony

(which may penalize remarriage) Servitudes and Rights of NeighborsNon Possessory Interests 

1. Servitudes1. Generally: Non-possessory interests – land owned by one party "serves" another

party2. Easements, real covenants, equitable servitudes, profits, and licenses

2. Express Easements: Classification and Creation1. Generally

i. In writingii. Limited to use or enjoyment of interest in land

iii. Protection against 3rd persons and will of LLiv. Like a license to use the land, but irrevocable by LLv. Dominate estate is benefited and servient grants the benefit

2. Affirmative v. Negativei. Affirmative: Grants rights would not otherwise have

ii. Negative: Prevents possessor from doing something would otherwise be allowed (restrictive covenant)

3. Appurtenant (land) or In Gross (person)i. Appurtenant: Rights automatically pass with land (easement and land

cannot be split)1. Presumption of appurtenant for 3 reasons

i. More easements intended to be appurtenantii. Since it passes automatically, protects grantee from failure to

create a separate grant with feeiii. Any detriment to servient estate usually offset by benefit to

dominate estate

ii. In Gross1. Benefit not attached to particular parcel of land

4. Grant, Reservation, Exceptioni. Grant is creation of a new easement

1. Traditional rule (only 3 states have eliminated): cannot create right for 3rd partyi. Could give easement then sell

ii. Policy against: Does not allow grantors intentionii. Reservation retains for the grantor a newly created property right

iii. Exception retains for grantor a pre-existing interest3. Is it an easement or fee, and if so, what is the scope of the easement (express or

through adverse use (prescriptive easement))1. Factors to determine rights and obligations of easement (PI-LEAST)

i. Scope: Prior use of the land1. May suggest continuation of that use was intended

ii. Intentions1. In favor of the grantee – fee simple assumed unless it appears from

grant a lesser estate was intended2. If intent cannot be shown otherwise, holder of easement entitles to

use servient estate in manner reasonably necessary for convenient enjoyment

3. Granted v. Reservedi. Reserved is interpreted more restrictively than grant

iii. Language of document1. Easement/Fee: Terms in support of easement (from original deed):

"right of way" (Greaves, "right of way") (Northwest Realty, "right of way", "over", "across") (Hurst, land conveyed in fee, road "also")i. Terms for fee: "granted, bargained, sold, conveyed"

ii. "for x purpose only" is conditional estate, fee subject to condition subsequent, not easement

2. Scope: If language has space defined: width, length, and location, then clear (Northwest Realty, "not exceeding 40 feet" – easement language) (Greaves, road moved x times – easement)

3. If ambiguous, look to intentions and reasonable expectationsi. If not specific measurements and right of way "over" land,

generally only what is reasonably necessary for purpose of easement

iv. Reasonable Expectations1. What best serves the interests of the parties – discouragement from

splitting land2. Use/limitation in land & purpose of the interest – road usually

easement (Hurst, road had no limitation of use)v. Amount of Consideration

1. More money probably greater rights intendedvi. Subsequent conduct of the parties

1. What happened immediately after implies parties intent

vii. Easement/Fee: To whom property assessed and who pays Taxes2. Rights and Obligations

i. Servient Rights & Obligations1. Majority: If servient estate wants to relocate (road), need dominate

consent & servient pays change2. Servient owns property, so can use it to extent does not interfere

with easement3. Servient may be obligated to provide "private way of necessity", or

allow right of way if benefit to dominate and no damage to servient (Brown, access to C no additional burden but provided benefit)

ii. Dominate Rights & Obligations1. Dominate estate cannot grant others easement and cannot use

easement for other parcels (Brown, cannot use easement for additional lot), but servient can grant if not interfering with 1st easement

2. Duty to repair and not impose unreasonable additional burdens on servient estate (clean up)

3. Normal increase in degree of burden in use of easement okay, but no appreciable additional burden on servient estate (Hayes, increase in boat slips okay)i. Burden on proving additional burden on servient estate

ii. Minority/trend: Allow new uses of easement if not appreciably increase burden (telephone easement allows cable)

iii. Unilaterally Relocate Easement?1. Majority: Neither dominate nor servient estate may unilaterally

relocate an easement once fixed2. Minority & Restatement: Servient can relocate if dominate estate

benefits substantially similar – may want a declaratory judgment before change (MPM, could change easement according to Restatement)i. May relocate if (M.P.M., relocate road)

i. Not lessen utility of easementii. Not increase burden on dominate use

iii. Not frustrate purpose for whish easement was created

iv. Servient shall pay for cost of relocatingii. Policy

i. For: Merely a right of way, created to serve a particular objective, nonpossessory right, encourages use of easements, permits servient to develop land without unreasonably interfering with easement rights

ii. Against: Favors economic interest of only servient party

iv. Ingress & Egress

1. The right to enter and leave3. Termination of Easements (ALMA EEO-FER)

i. Adverse possession (of owner or other)ii. Loss of purpose of easement (canal with no water)

iii. Merger of dominate and servient estateiv. Abandonment (need clear abandonment)v. Express terms

vi. Estoppel1. If A says won't use easement, and B relies on that, may lose

easementvii. Other Ways to lose property

1. Foreclosure2. Eminent Domain3. Recording Acts

4. Non-express Easements (4 non express - implied, by necessity, adverse possession, Estoppel exception, + express)

1. Generallyi. Purpose: Give effect to the intentions of the parties

1. Not implied in face of evidence proving no such intent2. Cannot look to writing to determine intent

ii. Go back to when land was owned by one owner and look to original needs and actions

iii. New use permitted if from reasonable development that does not unduly burden servient estate

2. Factors considered for determining if an easement is implied (PASTA – BEN)i. Prior use

ii. To what extent was the easement was apparent to partiesiii. Subsequent conduct of the partiesiv. What are the terms of the conveyancev. Amount paid

vi. Does the easement create benefits for the conveyor and/or conveyee?1. Requirements for implied easement must be met at time of

conveyancevii. What results best meet expectations of parties and arrive at fair results?

viii. How necessary is the easement for the claimed dominate estate? SPILT1. Strict necessity (Ward, driveway could be through alley)2. Necessity element in balancing test (Hillside, Restatement view)3. No necessity (Epstein)

ix. What allows full utilization of the landx. Public policy: avoidance of economic waste

3. 4 types of non-express easementsi. Easement by prior use/quasi-implied easement/visible easement (low

standard)1. Original unity of ownership2. Was the easement apparent3. Was the use continuous (at the time of severance and still)

4. Is the easement necessary for the enjoyment of the claimed dominate estate

5. Did the parties address easements in the agreement? If did, but did not grant easement, not implied

6. Minority: Was the right of use intended to be permanent? (Epstein, sign not permanent)

ii. Easements by necessity (high standard)1. Requirements for an easement by necessity

i. Original unity of ownership of claimed dominate and servient estate

ii. Existence of necessity at the time of severance (implied generally not strict necessity)

2. Policy: for easement by necessity unless affirmative evidence against

iii. Easement by Prescription/Adverse Use1. Continuous: as the owner would use it2. Statute of limitations begin using the land in such a way that the

owner would have a cause of actioniv. Easement by Estoppel/Irrevocable License

1. If owner A gives permission for B to use land in certain way, if B relies on that permission (usually spends money to build road etc.), owner A cannot revoke permission

2. Becomes an irrevocable license – like an easement excepti. It only lasts as long as necessary to recoup the value of the

investmentii. SOME: not transferable

iii. Scope is narrowly construed5. Promissory Servitudes: Enforceability of Covenants

1. Names (kind of same thing): Covenants that run with the land, equitable servitudes, negative easements, Covenants, Conditions and Restrictions (CC&Rs)

2. Most Important: Make sure covenant is recorded in a way that gives notice to all future owners

3. Real Covenants v. Equitable ServitudesRestatement and others eliminate this distinction

1. Real Covenants (covenants running with the land)1. Generally affirmative (promise to do something)2. Remedy: Damages

2. Equitable Servitudes1. Negative covenant (promise to not do something)

i. Court will only enforce if party had notice2. Remedy: Injunction

4. Requirements to create a covenant (trend away from technical requirements)1. Agreement to be bound2. Intention that promise run with the land3. Promise must touch and concern the land4. Must not violate public policy

5. SOME: Traditional legal requirement that promisor and promissee have some form of privity of estatei. Idea: two neighbors cannot just enter into covenant

6. SOME: Doctrine of Implied Covenants: if part of same community, and marketed same way, maybe implied

5. Is a covenant enforceable?1. Generally

i. Only the owners of the beneficial interest can enforce covenantsii. Can be in gross or appurtenant (most)

iii. Subject to constitutional rules (can do certain things govt. cannot, but still subject)

iv. Can enforce against anyone who acquires burdened estate and has notice (not actual, but proper)

v. Horizontal Privity (MINORITY – archaic, may not last)1. Relationship between promisor and promissee 2. LL tenant, party who owns easement, and when covenant is

created at conveyance2. Standards of enforceability: vary according to the covenant

i. Generally: There is a strong presumption against alienation (not being able to sell/rent), so default to free enjoyment for that and less for "cats"/lesser owner rights

ii. Rent/Sell: Enforceable if (Franklin, one may only own two or fewer apartments)1. If the one imposing has some interest in the land2. If restraint is limited in duration (counts if assoc. can vote and

change covenant)3. If for a worthwhile purpose4. Number affects is relatively small5. If unclear, in favor of free enjoyment – interpret reasonably

(Hill, AIDS okay as family)iii. Lesser owner rights: Courts enforce covenants unless

unreasonable (burden on party challenging covenant) (Nahrstedt, cannot have cats)1. Unreasonable if

i. Burdens substantially outweigh the benefits ii. Violated public policy

iii. Wholly arbitrary 2. Policy:

i. Provides assurance and confidence to prospective buyers

ii. Protects owners from feels due to legal challenges3. Reasonable standard for individual or group? (Nahrstedt)

i. Cannot look to reasonableness for individual ii. Would conflict with presumption that covenant is reasonable

iii. Policy: discourages lawsuits by individuals seeking personal exemptions

6. Defenses to the Enforcement of Covenants 1. Based on contract (not property) law

i. May waive enforcement, be estopped from enforcing it, or be barred by doctrine of laches (undue delay in enforcing one's rights)

2. For enforcementi. Courts default to upholding covenants unless a strong reason against

ii. Exception: presumption of invalidity for alienation (limitation on selling/renting) unless very low restriction (Franklin, reasonable limitation to only owning 2 apartments)

iii. Policy: Takes away responsibility from government, gives stability to the community, people have notice and have promised to comply

3. Defenses i. Was there sufficient evidence to establish a uniform development plan?

1. If part of general scheme, runs with the land ("heirs", "mediately")ii. Have the circumstances changed so dramatically that the purpose no

longer exists? – only applies to the dominate estate, not the servient (Chevy Chase, wanted Dr.'s office despite covenant – not dramatic change)

iii. May lose right to enforce due to laches/adverse possessioniv. Should court decline to enforce due to comparative hardship?

1. May refuse enforcement if hardship disproportionate to benefit (very great v. very minor)

2. If land rendered wholly useless, disproportionate (Philwold Estates, only hydroelectric plant)i. Policy: Would have liability for land but no benefit

3. If court declines covenant, may be entitled to damagesv. Was there a good faith mistake? Would have to not create much harm

(ex. mis measuring a porch)7. Common Interest Communities

1. Generallyi. Covenants are legal devices used to create common-interest communities

ii. Recorded by developer a.k.a. declarant in a document called the declaration of covenants, conditions & restrictions (CC&R)

iii. Commonly mandate membership with duesiv. Terminated or disassociated by super-majority votev. Policy: CIC good because takes burden from government

2. Factors for determining standing of association (Westmoreland Assoc)i. Capacity of organization to assume an adversarial position

ii. If size and composition reflect a position fairly representative of the community interest

iii. Adverse effect of the decision soughtiv. If full participating membership is available to all

3. Association rights/requirements for enforcement (if good standing of assoc)i. Procedural requirements for enforcement

1. Provide constructive or actual notice of covenant

2. Reasonable demand for compliance after breach occurred (policy: courts don't want case if owner willing to comply but didn't know)

3. Due process considerations4. If value of covenant not affected, need not enforce uniformly

(Raintree, not enforce against all trucks)i. If affected substantially, waive right to enforce

5. Policy: make use of dues (ex. parks)ii. Rights (if notice)

1. Create/modify covenantsi. Split: mostly based on extent of new covenant – bigger

change = less chance of validity2. Impose dues – not excessive though3. Require all owners to be members

4. Court's standards of review for board action – courts vary or mixi. Business judgment rule of corporation law: Not second-guess unless

showing of bad faithii. Reasonableness standard

iii. If ambiguity, rights towards free use of property (Evergreen)8. Nuisance

1. Generallyi. Public Nuisance: offense against public and generally only public official

can sueii. Private Nuisance: bring action for self if "different in kind" from public

nuisanceiii. Zoning v. Nuisance: could use zoning code to prove nuisance – zoning

more predictive and proactive 2. Factors

i. Spite : courts less likely to support actions done out of spiteii. Surrounding circumstances : if most neighbors agricultural, less likely to

find that a nuisanceiii. Who was there first: coming to nuisance problem

1. If a person buys and nuisance is present, is thought to have received compensation through lower cost

iv. Public Policy: who to support - social value judgment1. What sort of land use do you want to promote2. Maximum use used to be viewed as better but trend towards

preservationi. Ex: sunlight (Prah, solar panels)

3. Traditional (SPLIT): First restatementi. Interference must constitute nuisance for legal remedy

ii. If nuisance, entitled to an injunctioniii. Could win big or lose big (all or nothing) because courts are hesitant to

let residents win over big companies because that would equal an injunction which would be a big loss to society

4. New Trend (SPLIT): Second restatementi. Two steps (Rabin excerpts)

1. Who is morally blameworthy?i. The person at fault pays (Spur Industries, cattle violate public

health, developer pays)2. How can this be resolved with the least expense?

i. Resolved by least-cost-avoider, but not necessarily at his expense

ii. Separate fault from efficiency (Spur and Boomer landmark cases for this)

ii. Remedies1. Generally

i. Value of cause of nuisance must be greater than damages to justify continuing

ii. Must compensate if harm greater than other should bear without compensation

iii. If can change for less cost than damages, do that2. Grant injunction but postpone effect until future date to give chance

to fix3. Injunction cancelable upon payment of damages for past and future

injuries – permanent damages for total economic loss (Boomer, cement plant - "balancing of conveniences")

iii. Policy: Damages can be more fair and more efficient than an injunction1. Courts are more likely to find for π than with 1st restatement

because remedy is less extremeiv. If there first, but becomes nuisance through other's actions (no fault)

1. May enjoin operations if remedy is beyond damages BUT may not be at fault (Spur)

 Government Use of Land 

9. Eminent Domain1. 5th Amendment: “nor shall private property be taken for public use without just

compensation”i. Taking

ii. For public useiii. Just compensation

1. Fair market valuei. Problem: “to me it’s worth a million dollars”

2. Policy: Fee thinks should up this to make govt. think more before taking

10. Public Use1. Question: Flat out taking, but is it for public use?2. Reasons taking may meet public use requirement (Wayne, 3 questions)

i. Is taking vital to commerce (highways, railroads, canals, etc.)?ii. If transferred to private entity, is taking devoted to use of the public

(independent of will of private entity)?

1. Support: if private beneficiaries are unknown at time plans are formulated (fee thinks unreasonable)

iii. Is condemned land chosen due to a public concern?1. Does act of taking serve public good (Poletown, public health,

safety, welfare –GM Cadillac plant)3. Transfer to Private Entities?

i. If attack perceived evils of concentrated property ownership, for legitimate public purpose (Midkiff)

ii. If transfer to private entities must be devoted to use of the public (Wayne, Michigan, not to take for business park because private entity not open to public use – overrules Poletown by interpreting the state constitution)

iii. Must be selected due to public interest, not interests of private entity4. Policy For Taking (trend and majority)

i. Decline to second guess what the legislature deems best for public1. Acceptable: Redistribution of fees simple to correct extreme

deficiencies in the market determined by the state legislature (Midkiff v. Hawaii Housing Authority, people couldn't buy land they lived on)

2. Legislature, state or federal, must determine substantial reasons for exercise of the taking of power

ii. Necessity because likelihood people will hold out and prevent what is necessary for public and commerce

iii. Court rejected literal requirement that condemned property be put into use for general public (Kelo, Strickley)

iv. Carefully thought out economic plan that should benefit the community (Kelo, Fee for Kelo)

5. Policy Against Taking (Kelo, O'Connor dissent)i. Argument: Midkiff was about preventing harm – should be the

requirement – not who most $ benefit ii. Tend to benefit the wealthy and displace the poor

iii. Must have meaningful limit on power of eminent domain1. If can transfer for private use, is there is a limit

iv. Thomas dissent: only allow eminent domain if govt. owns domain or private that is required to serve the public

11. Regulatory Takings1. Question: Is it a taking?2. Generally

i. When are government imposed restrictions enough that it constitutes a taking?

ii. Different than nuisance – nuisance is minimal restrictionsiii. Zoning laws are a legislative exercise of police power for public welfareiv. Regulations Test

1. Sensible?i. If practical use/advances public welfare, then sensible

ii. If doesn't advance public welfare and injures the landowner, not sensible

2. Will always affect landowners – what extent allowed?3. 2 Bright Line Rules

i. Permanent Physical Occupation by 3rd party/government is a taking (Loretto, small cable box)1. Compensation must be given2. The right to exclude is greater than the right to use (so small cable

box still a taking)3. Taking per se4. Exception/not a taking

i. If temporary, may not be taking (Tahoe Sierra)ii. Not physical taking if not for third party

i. Fire extinguishers, fire sprinklers, and other required physical objects

iii. YEE v. Escondido, trailer park rent controli. LL can chose to change the use of the building if

they don't want to complyii. Although limited ability to select tenants, up rent,

and tenants can renew indefinitely, tenants voluntarily invited (box not), can up rent with permission

ii. When all viable economic use is eliminated (Lucas v. SC Coastal)1. Is a taking2. What is all economic use?

i. If any use is left, it is enoughii. Exception: if land use restrictions merely reiterates common

law/background principals of state law (ie. nuisance common law)

i. Example: law allowing access to beach merely statute for common law

4. Balancing Test (Penn Central, RR station wants to build a skyscraper) (CRIES)i. Character of government's action

1. Govt. has right to police health, safety, welfare & morals (Penn Coal)

ii. Reciprocity of advantage1. Sometimes means general laws are valid because they are helping

out everyone (Penn Central)2. Sometimes means when a regulation applies to more than one

owner and benefits all owners, it is justifiable (Justice Holmes)3. Reciprocal advantages should match or at least equal the loss

iii. Interference with reasonable investment backed exceptionsiv. Economic effect on the owner

1. Diminution in value or use2. Reasonable self interested seller, not subjective3. Over 95% the owner sometimes wins

4. Is it capable of earning a reasonable return? (Penn Central Transportation)

v. State interest1. Is it reasonably necessary to affect a public purpose/interest?

5. Transfer of Title (Palazzolo)i. Plurality, but main holding does not consider awareness of regulatory

takingii. Not an automatic bar, but still a consideration because awareness of

regulations "helps to shape a reasonableness of those expectations" (Palazzolo O'Connor plurality concur)

6. Owners will be unequally burdened – okay i. Government hardly could go on if to some extent values incident to

property could not be diminished without paying for every such change in the general law (Penn Coal)1. Holmes rejects both extremes of govt/private

ii. If not singled out, and others benefit, less likely a taking7. Parcel is a whole , not okay to claim 100% loss of part of land (Penn Central)

i. Look to timing of purchase to see if same parcelii. Temporary takings

1. Cannot divide in time (Tahoe Sierra)2. If owner has multi lots, may be combined as single parcel – large

owners easier for govt. to regulate3. Policy: Where to draw the line – what if taken for a day – but rule is

more than 1 year is suspect8. Transferable Development Rights

i. Diminishes the harm – A had govt. imposed height restrictions, B lives in target zone, and A sells development rights to B1. Policy: gives only part compensation, but that makes it not a taking

(good for government because they do not have to pay 100%)9. Estoppel Doctrine

i. City gives an approval and owner invests money, city may not be able to change (permit would be evidence)

10. Damagesi. §1983 allows for recovery of attorney's fees

ii. First English allows for recovery if delay is found to be a taking, but does not show something is a taking – Tahoe Sierra distinguished

12. Exaction Takings1. Nolan - Dolan Test (Dolan, exchange free space and bike path for building

expansion)i. When does it apply?

1. Government permits a certain use of property on condition that the owner gives up other interest

ii. Would it be a taking?1. Government must have a legitimate interest in restricting owner's

use of property2. Nolan - Dolan Test

i. Reasonable relationship between government interest AND property interest

i. Nexus between government interest and property interest

ii. Proportionality (Dolan added second prong to Nolan test)i. The giving and getting is roughly proportionate

ii. Is the impact of what owner wants to do proportionate to what city asks for

1. Ex: for each additional sq. foot proportionate to new need for housing

3. Left unanswered (split): can govt. exact money – only 2 cases in Supreme Court & those ask for land

4. CA: if generally applicable law, then not subject to Nolan – Dolan cause more like a tax

13. The Public Trust Doctrine1. Two steps

i. Is this subject to public trust?ii. If so, what other public interests must be balanced?

2. What is certainly subject to public trust?i. Tidelands at high-tide mark (subject to ebb and flow of the tide)

ii. Non-tidal lands under navigable freshwater lakes3. What public uses may be subject to public trust?

i. Places that the public has come to use and value over time – come to expect as theirs

ii. Fish, hunt, bathe, swim, use bottom of water for anchoring, and possibly, to preserve natural state of land

iii. (National Audubon Society, diversion of non-navigable streams subject to extent harm navigable waters)

iv. Beaches because must use those to access the beach waters – like background state law, so not compensate because never had right (Matthews, N.J. must allow access to dry sand)

4. Dutyi. To act in best interest of the public

ii. May need to balance other needs of the public1. As far as feasible, must minimize harm to public trust2. (National A.S., Public need to divert water to LA must be balanced

with public trust consideration)5. Private Conveyances/Sales

i. If granted right, that right is subject to what is best for the publicii. May make revocable conveyance to private if for use of the public

1. If revoke, must compensate for improvementsiii. State cannot convey all interest to private party and avoid responsibility

of trust6. Policy

i. Probably not a taking if under the public trust doctrine

ii. Eminent domain vs. public trust: there is a problem – some justices think public trust must be limited so not transforming private property into public property without just compensation

iii. Judges, not legislature, is deciding what's best – anti-democratic iv. Effect on private property – property purchased may be valueless and no

compensation under PT Real Property Transfers

1. Adverse Possession (ACE-HO)1. Elements

i. Actual possession1. Physical presence on property2. Absent color of title, must occupy entire space

i. Color of title: an invalid document purporting to give titleii. Only applies to extend boundary, must still meet other AP

elements3. CA: actual possession of one lot does not give right to other lots

ii. Continuity for Statutory Period1. All other 4 must exist the whole time2. Tacking

i. Successive adverse possessors must generally be in privity (agreement between successors)

ii. Need some evidence that owner had intent to convey to you3. Tolling

i. Statute of limitations does not start if owner has certain disabilities (military, under age)

4. From 5-60 years; Utah 75. No significant gap in possession

iii. Exclusivity1. Possession must be type that would be expected of an owner (not

necessarily "exclusive")2. Others must not also occupy or claim the land

iv. Hostility/Claim of right1. You must behave like the owner

i. Acted in way that gives owner cause of action for ejectment (generally not "hostile") (Tioga)

ii. Wrongful against proper owner but rightful against rest of the world

2. Good faith v. bad faithi. Objective (majority)

i. Does not matter if you believe land is yours – subjective irrelevant (ITT Rayonier)

ii. Policy: messy to get into state of possessors mind ii. Good faith claim (minority)

i. Subjective: must believe land is yours (Halpern)iii. Bad faith claim (Maine – vast minority)

i. You must think the property is not yours otherwise not "hostile"

3. No claim of righti. Asking permission to be on the land

ii. Temporary occupancyiii. Limited purpose of use

v. Openness and notoriety1. So conspicuous that it is generally known to the public

i. Ex: fences, eject trespassers, pay taxes2. Owner has knowledge or reason to have knowledge (Marengo

Cave, owner can't see, so not AP)vi. Some: must pay taxes, others a positive factor for adverse possession

2. Federal land and most state law not subject to AP3. Policy

i. For adverse possession1. The property owner relies belief that land in theirs

i. Puts property in hands of who values it the most2. Tends to clear up administrative problems: mistakes, lost deeds,

longer time = less accurate for sorting out propertyii. Against adverse possession (especially bad faith)

1. Encourages trespassers2. Undercuts recording acts

4. Burden of Proof on π5. Title of AP

i. Can be transferred like any other propertyii. Cannot be recorded because does not arise from a recordable document

but an action of law6. Easements by adverse possession

i. Same requirements to gain an easementii. Simply not using easement does not trigger loss by adverse possession,

would need to be denied use (ouster)2. The Requirement of a Written Instrument (Required by the Statute of Frauds)

1. Estate (lease, trust, any interest) in real property requires a written instrumenti. Exception: Estate at will or term not exceeding one year

2. Informal documents for conveyance (deeds)i. Requirements

1. Be in writing and be signed by grantor2. Deed must be delivered (see 3 below)3. Clear who the grantor and grantee are4. Description of the property

i. Minority: don’t require clear description if can be reasonable deduced

5. Statement of an intent to convey a present conveyancei. Might be clear enough for grantor and grantee but not to put

purchaser on notice

ii. Mere invitation to stay on land not conveyance (In re O’Neil’s Will)

ii. Not required/optional1. Considerations (payment)2. Lawyer3. Notary (Majority)4. Government involvement

3. Contracts for the sale of real estatei. Written requirements

1. Description of the real estate – must make identification possible2. State price or method of fixing price3. Reasonable certainty of an intent to convey

ii. Sufficient (for specific performance)1. In writing or2. When one party’s reasonable detrimental reliance on the contract

would make it inequitable to not enforce it (// promissory estoppel)i. Must appear that failure to enforce would amount to fraud

ii. Consider availability of other remedies3. Buyer has accepted a deed from the seller4. Party against whom enforcement is sought admits in court that

contract for conveyance was made5. Majority: If the buyer has take possession and paid all or part of the

contract pricei. Minority of states do not recognize past performance

iii. Insufficient (for specific performance)1. Payment of purchase

i. Policy: can be repaid2. Collateral change of position (not specifically on promise)3. Statute of Frauds: If action not meant to be carried out within an

yeariv. Burden of Proof

1. Clear and convincing evidence (not mere preponderance) v. Remedy: if cannot demand specific performance, then can award

damagesvi. Policy:

1. Encourage the writing and recording of conveyances (not open up oral contract floodgates)i. Consequences: Will hurt those who did really want to enter

into an agreementii. Since can write agreement, if don’t do that, then shows

indication not to sell2. Protect against fraud (especially when someone has died)3. Balance against counter fraud when someone has relied on a oral

contract3. Deed Must be Delivered

1. Requirements

i. Must show present intent to impart irrevocable1. Present intent to impart makes different than a will

i. “A is now the owner”2. Must give outright (constructive or actual) ownership at that time

(gift is given inter vivos)3. With death escrows, must still how intent to part irrevocably

i. If irrevocable, deemed delivered on day it is delivered to escrow

2. Sufficient (if irrevocable)i. Death escrow

ii. Delivering deed to third partyiii. Recording (if not fraudulent (Lenhart v. Desmond, daughter takes from

safety deposit box and records))3. Possible supporting factors (show intent to impart irrevocably)

i. Putting in safety deposit box with exclusive access for joint tenantsii. Showing deed/handing it over (should get on video)

4. Insufficienti. If unrecorded and in the grantor’s possession

4. Deed Covenants1. Types of Deeds

i. Full Warranty1. Includes all 5 covenants listed below2. Grantor liable to remote grantee for breach of future covenants

ii. Special Warranty Deed1. Includes some of the 5 covenants2. Grantor usually covenants only concerning interests created by

grantor (not liable for past owners)3. Grantor’s liability to remote grantees depends on the statute

iii. Quit-Claim Deed1. No covenants – “as is”2. No cause of action against the grantor3. Grantor promises nothing4. Grantor conveys everything it has (susceptible to surprise of

grantor’s true rights)2. Present Covenants (at the time of conveyance) (SERF-Q)

i. Generally1. Breached only if title is defective or encumbered at time of

conveyances2. Majority: can only be brought by the original grantee to whom the

covenant was made3. Does not run with the land for future grantees4. Fee: present covenants are more similar to contract law and future

covenants are more similar to property law – fee thinks there isn’t a good reason you shouldn’t be able to convey your cause of action for the present covenants to future grantee’s – puts in worse position (limited to SOL)

ii. Covenant of seisin1. Grantor if peaceably in possession under a freehold title

i. If grantee has notice of another interest, not relevantii. If grantee has actual knowledge of another interest, then no

cause of action against grantori. Doctrine that grantee is estopped from bringing

claimiii. Covenant against encumbrances

1. No other rights or interest in the property has been conveyed2. Feed from servitudes, liens, dowers, etc.3. If aware/actual knowledge of encumbrances, may be estopped from

suit (Babb, actual knowledge)iv. Covenant of the right to convey

1. Grantor has the power and authority to make the conveyance3. Future Covenants

i. Generally1. Breached when 3rd party successfully asserts a higher title against

the beneficiary of the covenant2. Runs with the land

i. Benefits immediate and future granteesii. Covenant of further assurance

1. Anything else a person warrants to do to perfect the titleiii. Covenants of quiet enjoyment and warranty

1. Someone with paramount title will not evict, and if evicted, grantee has a cause of action

2. Breached only in the event of actual or constructive eviction of the grantee

4. Damagesi. Damages are the amount x needs to pay to keep the property

ii. Want to put iii. Limited to consideration except for Further Assuranceiv. If no consideration (gift), then only nominal damages, and 0

compensatory  Recording Acts 

1. Purpose1. Provide notice to the whole world2. Protect owners3. Protect buyers4. Statutory creation

2. Who Gets It?1. Common Law: First in time gets it

i. Policy Problem: to way to know what you’re truly getting2. Modern Law, 3 types

i. Race

1. First in time to record2. No need to record

i. Leases under three yearsi. But must record options to purchase – possible

defense of inquiry noticeii. Adverse possession

iii. Easements created by necessityiv. Easements created by implication or prescriptionv. Dower and curtsey rights

vi. Beneficial interest in constructive or resulting trustii. Notice

1. Subsequent good faith (without notice) purchaser for value wins2. No recording is needed3. What is notice?

i. Actual i. Knowledge

ii. Constructive i. Recording (judicial records, bankruptcy, probate,

tax assessments, etc.)iii. Inquiry (depending on jurisdiction)

i. Something less than knowledgeii. Enough information to make it reasonable to

inquire1. Road (Jefferson County), fence around

property, footpath, etc.2. If purchasing property, may be required to

ask tenants of their interests (can be through writing)

3. So, do a visual inspection of the property and follow up – if it reveals nothing, at least covered on inquiry

iii. Race-Notice1. Same as notice IF they record first, otherwise the real owner wins2. Requires a bona fide purchaser

3. Recording Acts Analysis (O to A, O to B)i. What type of jurisdiction are we in?

ii. Is A’s interest the type that can be recorded?1. If it is not subject to the Recording Acts, under the common law,

whoever got it firstiii. Is B a bona fide good faith purchaser for VALUE?

1. Recording act doesn’t work for inheritance, gift, etc.i. Even if record, purchaser would trump gift unless shelter rule

ii. Can give more than possess if A to B as a gift (does not record), A sells to C (not record), the B sells to D – if D good faith purchaser, gets even though B wouldn’t

2. Did B take without notice?

3. Who recorded first?4. Did A, assuming he had to record, record within B’s chain of title?

i. If A did not record in B’s chain of title, B can still prevailiv. To the extent there are inconsistencies, and multiple rights granted, first

in time prevails if properly recorded4. Recoding Indexes and Title Searching

i. Grantor Index and Grantee Index (majority of states)1. Conveyances filed alphabetically by both names2. Start with the grantee3. So a title search by going back in time through the chain of title4. Keep going until you find the root5. Go forward in the grantor index to find any suspicious conveyances

i. Public documents, tax records, probate records, etc.6. Could face wild deed problem

ii. Tract Indexes1. Indexed by a piece of land2. Cannot claim a wild deed

5. Doctrine of Estoppel (Estopped by Deed)i. O has property; A to B, then O to A

1. B originally has only an EQUITABLE INTEREST, not legal interesti. Equitable interest is what purchaser has prior to legal interest

2. As the moment A gets the property from O, B gets it and A has no claim

3. As between A and B, A is estopped from asserting an adverse claim6. Shelter Rule

i. O to A (not recorded), O to B (recorded), the B to C (C has notice)1. If B records and is a bona fide purchaser, C gets it even with notice

of A because C is sheltered by B2. C wins because B’s win shelters her

i. Otherwise B couldn’t be a full purchaser because couldn’t grant gifts

3. B won the land as soon as he recorded the land (if he was without notice)

7. Wild Deeds (Deed recorded too early, or gap in deeds)i. O to A (O does not have legal possession yet), N to O, A to B

1. Wild because O transferred before having legal possession, and thus subsequent purchasers cannot look up title

ii. O to A (not recorded), A to B (recorded), O to C (recorded)1. Literal reading is that B recorded before C2. Problem is that B’s duty is to record in all of O’s chains of title

including C;s3. There is no way C could have found B’s deed4. Solution: B needs to go record in O’s name

8. Deed recorded too late, thus outside the chain of titlei. O to A (no record), O to B (record), then A records, B to C

1. Split courts on if to A or CIntellectual Property

 1. Policy

1. Balance: reward creators for enriching public welfare without unduly sacrificing public’s interest in enjoying the work

2. Encourage development of new ideas2. Trademark Law

1. Generallyi. Source of authority: federal statute (from the commerce clause)

ii. Purpose: protect ownership rights which encourages development of new ideas (no fixed supply)

iii. Balance: rights of the trademark owners with others who wish to use the same or similar trademark1. Only granted the right to prevent other trademark uses that are

likely to cause consumer confusioniv. Unlike property law, trademark law sets time limits to owner’s rightsv. Considered abandoned if non use and no intent to resume use within the

reasonably foreseeable future1. Rebuttable prima facia evidence: three years of more of non-use

(according to GATT) (Silverman v. CBS, “Amos ‘n’ Andy”)i. If can show likelihood of use in reasonably foreseeable future,

years of non-use rebutted (e.g. Ginger Spice audition, reason for non use)

2. May also lose/abandonment through loss of distinctiveness (becomes too common)

vi. Fair use: defense to infringement (Packman, “joy of six” not used in same way – descriptive, not secondary)

2. Lanham Act 15 U.S.C. §§ 1051-1127i. “Any word, name, symbol, or device, or any combination thereof” used

“to identify and distinguish one’s goods or services from those of others “and to indicate the source” of those goods or services

ii. Protects registered marks if1. Mark is protectable and2. ∆’s use is likely to cause confusion

3. Trademark Requirementsi. Actual use as a signal

ii. In commerce – as a way of identifying (Marketing activities)iii. In interstate commerce (federal requirement to meet commerce clause)

1. If mark is senior, even if not registered, still protected in its geographic area (but must be registered to receive federal protection)

2. Being registered is prima facia evidence of a valid trademark4. Principal v. Supplemental Registers

i. Principal Register

1. Provides constructive notice that mark is in use and actual notice of marks that have been taken

2. Register through applying to Patent and Trademark Office (PTO)i. Must show when mark first used (to show priority)

i. Priority only extends to markets you’re in or are very likely to expand to

ii. Have 30 days to oppose another’s registration3. Then, after registration, must verify mark is used in commerce –

then put on Principal Registrari. No rights until actually in use and actually registered (not just

applied)4. Registered 10 years but can renew

ii. Supplemental Register1. If examiner does not consider mark registrable, than can appeal

through courts or do Supplemental R2. Does not enjoy full protection3. Purposes

i. Gives notice of marks in useii. Can use ®

iii. Can use to assert state rightsiv. Can usually be transferred to Principal after 5 years

iii. Additional state and international requirements5. Polaroid Test (used in Jordache v. Levi) (sophisticated degree holders have good

faith in the actual strength and quality of proximate bridges)i. Strength of the defendant’s mark (weakest to strongest) (weak can be a

fair use defense)1. Generic

i. Kleenex, Xerox, Aspirinii. Can never be registered

iii. Describes not distinguishable characteristic2. Descriptive

i. Kentucky Fried Chickenii. At the beginning is not a trademark, but when acquires a

secondary meaning then registrablei. Secondary meaning is mental assoc. in buyer’s

mind between mark & single source3. Suggestive, Arbitrary, Fanciful (from more descriptive to arbitrary)

i. Can all be registeredii. Degree of Similarity between the two marks

iii. Proximity of the Products 1. Will consumers be confused as to the source?

iv. Likelihood that the prior owner will bridge the gap1. If there is only a subtle difference, then senior mark has right to

move into that marketv. Actual confusion

1. Confusion at purchase, confusion of consumers who see product and are led to other product

2. Not necessary, but could use surveysvi. Defendant’s good faith

vii. Quality of the defendant’s product1. Will it bring down value of senior product or2. Are they of the same quality and thus seem to have the same source

viii. Sophistication of the consumers 1. Levis: argument to sophistication increased likelihood of confusion

3. Copyright Law1. Generally

i. Includes literary, musical, dramatic works; pictorial, graphic, & sculptural works; motion pictures, sounds, etc

ii. Source of authority: Clause 8 of the federal constitution1. Codified in 17 U.S.C.

iii. Purpose: promotion of the arts and sciencesiv. Protected upon creation, but cannot sue for infringement unless

copyrightedv. Merger doctrine: if only limited number of ways to describe something

(rules, recipe), then cannot copyrightvi. Duration: life of author + 70 years

2. Testi. Is there a valid copyright and what is its scope?

1. Creative or factual? (original)ii. What of that has been copied?

iii. Who has what interest?1. Joint or individual as to their contributions?2. Is it a work for hire?

iv. Is there a fair use?3. Requirement to Recover

i. Ownership of a valid copyrightii. Unauthorized copying of constituent elements of the work that are

original4. Originality Requirement

i. Just has to be original, not new (just not copied)ii. No valid copyright for facts because not original (Feist Publications,

phonebook info not original)1. Creative coordination and arrangement of facts could be protectable

iii. Policy: Primary objective of copyright is not to reward labor of authors, but to promote the progress of science and arts

5. Infringement and Fair Use Test (§ 107) (Religious Technology Center, Scientology) (PANE)

i. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes1. More acceptable: criticism, comment, news reporting, scholarship2. If use of the work was for commercial gain

ii. The nature of the copyrighted work1. Factual less protected than novel/fantasy because less need for

novel work2. Narrower allowance if unpublished

iii. The amount and substantiality of the portion used in relation to the copyrighted work as a whole1. Quantitative and qualitative components

iv. The effect of the use upon the potential market for or value of the copyrighted work

6. Damages Factorsi. To what degree do the relevant postings infringe

1. See Infringement and Fair Use Testii. How many acts of infringement occurred

1. One infringement per copyrighted workiii. To what extent was the infringement willful

1. Did ∆ represent that he owned the copyrighted work?2. Not less than $500 or more than $20,000; if willful then up to

$100,000; if unaware than $2007. “Work made for hire”

i. Def: “work prepared by an employee within the scope of his or her employment” or a “work specially ordered or commissioned” through express written agreement

ii. Possible factors (no one is determinative) 1. *Control of end products and means to that end2. Source of instruments and tools3. Location of the work4. Duration of the relationship between the parties5. Whether the hiring party has the right to assign additional projects

to the hired party6. The extent of the hired party’s discretion over when and how long

to work7. The method of payment8. The hired party’s role in hiring and paying assistants9. Whether the work is part of the regular business of the hiring party

10. Whether the hiring party is in business11. The provision of employee benefits12. The tax treatment of the hired party

iii. If not work for hire, is it a joint work?1. With intention of merger into a unitary whole2. If joint, each over the whole, if individual, then over what you

created4. Publicity

1. Misappropriation of Information – don’t need copyright (according to Motorola, “hot-news” exception only survives preemption for narrow scope)

i. “Hot news” test – protected1. Plaintiff gathers information at a cost

2. The information is time-sensitive3. A defendant’s use of the information if free-riding4. The defendant is in direct competition with a product or service

offered by the plaintiffs5. The ability of others to free-ride would so reduce the incentive to

produce the product or service that its extensive or quality would be substantially threatened

ii. Problem is when ∆ free rides off π with a directly competitive product because lower costs

2. Publicityi. Split:

ii. Split (some recognize by statute, some common law, some not): right of publicity may be descendible (Elvis)

iii. For publicity: celebrities have plenty of incentives to pursue fame, a mere image not a trademark if not identified with particular source (Tiger Woods painting) (Vanna White)

iv. For right to exclude: encourages people to reach celebrity status because creating valuable capital for heirs, individuals right of testamentary distribution, discourage deception with regard to sponsorship

v. (Vanna White) Okay for advertisers to remind public of celebrity1. Right to actual image, but not to control our thoughts

Reducing too much to private property dangerous – stifles creative forc