Property Outline

Visions of Property

Finders Keepers
Finder's title is good against the whole world except the true owner and prior finders
o Does have rights against true owner if finder gains property by adverse
possession
o Both the finder and true owner "own" what is lostrelativity of title
Ex: Chimney sweep finds a jewel, brings into the appraiser, the jewelers apprentice
removed the gem and refuses to return it
The jewel had no prior owner, the chimney sweep became the effective owner, won
Finders law introduces the concept of relativity of title, disintegration of property rights,
and the intuitive image of property
Finder's Law in Relation to Landowner
Finder doesn't own in relation to the landowner if found on the landowner's property
Ex: Williams walks in the woods, find a jewel, belongs to Keisha
1. Intuitive Image
Not accurate, doesn't describe property rights and never has
Either you own property and can do everything with it or you don't own it
"On and off" switch
Different from property being an idea of bundle of rights
Invented by Blackstoneproperty rights are absolute and you can't change them
Bundle of Sticks

i. The government can take away the right to profit

Andrus v. Allard
o P dealt in Indian artifacts, wanted to sell the artifacts, but Migratory Bird Act, prohibited
the sale of artifacts that had feathers from the birds
o "Be possessed or transported," statute took away some important sticks in the bundle,
but some remained, two very skinny sticks
o Supreme Court said no taking, can still use this property, i.e. exhibit
o The take away of important sticks is not unconstitutional
o Property rights were created to benefit the common good


ii. The government cannot take away the right to leave property for your heirs

Hodel
o Rights were transferred to U.S. in trust, for use of Sioux nation
o Effectively abolished rights to pass property to heirs
o More and more people born, ownership became fractionated, rights eliminated of small
owners
o Supreme Court said that's one stick you can't take away
2. Republican Vision
Why can you regulate property to achieve common good?
Key words: citizens, independent, virtue, common good
The function of property in republicanism is to guarantee the citizen his independence
o Saves him from political dependence upon others and cultivates civic virtue
Independence enables citizens to pursue the common good instead of concentrating on
their own self-interests
o Property was valued insofar as its distribution aided the citizenry in the free
pursuit of this good
Perfect example is the American desire to own a home: a metaphor for personal and
family security leading to higher rates of political participation
Elitist strain
Sought to limit civic participation to white male propertied voters
Egalitarian strain
Jeffersonwidespread distribution of property
In order to sustain a republic, citizens need independence so they would have virtue to
pursue the common good, opposite was dependence of feudalism
Landless citizens are going to be dependent like feudal serfs, will look out for their own
self-interest
o Land required they would work the land and bond
Fear of those who have too much property, they will distort the government
Pennsylvania Coal Co.
o The statute that prevented mining that would cause subsidence was deemed
unconstitutional
o "Destroy previously existing rights of property and contract"
o Brandeis instead says statute is for the benefit of the public, including public safety
Property rights exist for the common good
o Holmes begins with republican vision, "government could hardly go on" and "implied
limitation"
Continues with liberal vision of property, government should not interfere with
property
3. Liberal Vision
Self-interest vs. banding together of republican vision
If you have private property, you're going to work harder and create more wealth
If everyone pursues their self-interest and create the richest society, that is assumed to
be the best society
The current distribution of property is justpeople the earned the property by the
sweat of their brow, by their labor
Focus attention on the moment of creation
Pierson v. Post
o Property rights were created through the injection of labor into the common
o That's what Post was doing by running after the fox
Majority opinion makes two arguments

1. Case should be decided to create a social effect
o Deciding for Post would result in disagreements, he did not have the fox in his
possession
o Pierson should win because he actually caught the fox
o Functionalist approach: this is the legal rule were going to use because this is the
outcome we want to create

2. Formalistic approach: black and white dichotomy (possession or mere pursuit)
o If you possess the fox, you get to keep it because you injected your labor into it.
o Dissent makes functionalist argument
Post should win because if he doesn't, useful behavior will be discouraged
Hunting foxes is necessary, we live in an agriculture society they eat chickens
A. Liberal Dignity Strain
When property rights sully human dignity, they have to be limited
State v. Shack
o Landowner wanted to be present, migrant worker wouldn't be able to talk about an
issue regarding the landowner if he had to be present
o Upheld the trespass statute, but not as applied in this case
o Property rights are relative you cannot exercise them in which it sullies the human
dignity of other human beings, especially if they are vulnerable and isolated
farmworkers
o You don't have to open the land to the general public, people coming on the land have
to inform the landowner, but you cannot limit the privacy of the migrant workers
o "Ownership of real property does not include the right to bar access to governmental
services available to migrant workers and hence there was no trespass within the
meaning to the penal statute."
o "Immigrant must be allowed to receive visitors there of his own choice." p. 61
o Property rights change all the time, that's the argument you make if your client wants to
shift property rights
o If your client doesn't want it to change, if property rights are changing, how can you
have property?
Commodification: Sale of Bodily Organs

Moore v. Regents
o "Moore clearly did not expect to retain possession of his cells following their removal, to
sue for their conversion he must have retained an ownership interest in them"
o Conversion: a tort that protects against interference with possessory and ownership
interest in personal property
o Removed cells not property
1. CA statute eliminates so many of the sticks in the bundle of rights that what is left,
is not "property" or "ownership"
Intuitive image of property
o Moore argues that if you have the right to control your image, you have the right to
control your body
o The court counters with argument that lymphokines have same molecular structure in
all humans
2. if researchers are allowed to research there will be more effective treatment for
everyone
Property rights motivate researchers to pursue the common good
o Liberal economic argument: let everyone pursue their self-interest, don't meddle, best
interests for everyone will be achieved
o Mosk (dissenting) states there are enough sticks in the bundle here for Moore to have a
right
Should genes be patentable?
Need to be able to protect research in order to do it
o Liberal economic argument for Myriad
Minority women will be disadvantaged if you allow Myriad to control genes
Myriad put serious money and effort into it, they have the right to benefit here - liberal
economic strain
If they didn't have the ability to benefit from it, wouldn't have put money and research
into it


Should organs be sold?
Liberal economic strain
o Market will supply because there is a demand
Liberal dignity strain
o When you allow people to sell parts of themselves the rich will be benefitting
and the poor will be dying having sold their organs
Property and Personhood
Personhood, i.e. a pet, a heirloom:
Defines you as a person, will never replace
Fungible: property that is perfectly replaceable with other goods of equal market value
An apartment is fungible property for the landlord and personhood property for the
tenant
Rules of Personal Property: Barry Bonds' Baseball
Trespass to Chattel
Where personal property has been damaged OR where D has interfered with P's use of
the property
Actual dispossession is not required
Only would have applied here if the baseball was damaged or interfered with use and
enjoyment of the ball
Conversion
Wrongful exercise of dominion over the personal property of another
o Has to be actual interference with P's dominion
Wrongful withholding can constitute "actual interference" even where
D lawfully acquired the property
If a person is entitled to possession of personal property and demands it back
unjustified refusal to return it is conversion
Act must be intentionally done BUT
o No knowledge that property belongs to another required
o No requirement that D intends to dispossess true owner of use and enjoyment
One cannot sue for conversion unless one has title or right to possession
Possession is a meaningless categorypurposefully ambiguous because definition has
to be tailored for those industries to achieve a stable economic environment
Definition varies depending on context
How do you define possession?
For possession you need... (central principles)
1. Physical control over an item
2. Intent to control it or exclude others from it
Blurred question of law an fact
Definition of Possession for Present Circumstances

Gray's Rule
"Actor must retain control of the ball after incidental contact with people and things"
Retain control of the ball after momentum ceased and after any incidental contact with
people or objects
"First person to pick up a loose ball and secure it becomes its possessor"
Pierson v. Post possession upon wounding the animal
Salvage Cases
Inconsistent with Gray's definition because possession is recognized in some cases even
before "absolute dominion and control is achieved."
Absolute dominion and control can't be established, but possession can still be achieve
because starting to salvage is enough
"It is impossible to wrap ones arms around a whale, a feeling fox, or a sunken ship"
"The customs and practice of the stands creates a reasonable expectation that a person
will achieve full control of a ball before claiming possession"
Do not know whether he would have retained control because of "collective assault by a
band of wrongdoers"
Judicial rulings affect how the people will conduct themselves in the stands
Equitable Division
The court turns to equitable divisionbundle of sticks
"Equity" do what is fair, not fair to give one person the entire bundle
Legal claims are of equal quality and parties are equally entitled to the ball
Case Law
o Arnold, couldn't find out whose fruit caused the batch to rot, each grower had
undivided interest in the whole, in the amount contributed to
o Keron, each of the boys threw the sock around among themselves, no intent to
take possession, didn't know a for a while that the sock contained money, split it
equally

4. Feudal Vision
King was only absolute owner of anything, he owned the entire realm
No surplus to support standing army
It gave peasants the protection, it gave lords labor, gave king knight service
Purpose of property was to cement social relationships
Interdependencelords, warriors and peasants had to all rely on each other to survive
Idea of property as social glue
Bundle of sticks
o King is the actual owner, but knights use the land, will not retain the entire
bundle or he will starve
o Makes no sense to sell property from king's perspective, wants Keisha as her
knight not Nicole who is a weakling
Estates in Land and Future Interest
Law of wealth transmission
Define interests at the moment of the grant
Fee Simple Absolute
Ordinary ownership gives the owner the right to present possession and the right to
pass along possession to others in the future, either intervivos (in the owners life) or
when the present holder dies (with or without a will).
When it is unclear if a grant conveys a fee simple or life estate, it is assumed to be a life
estate.
"O to A and his heirs"
is the owner, give A and heirs, gave whole bundle of sticks
Gave A the whole thing, passing on will be indefinite, O has nothing
A has the future interest, will use it in the future
A after the grant of fee simple, has present and future interest
"Heirs" have no interest, A can sell it to someone else
No one is the heir of the living
Magic words: "and his heirs" although the heirs are mentioned, they don't have interest
because no is a heir of the living
"O to A"/"O to A forever"
Ambiguous grant creates a fee simple according to statute
Before, ambiguous grant would be interpreted as a life estate
o Protected lords, so they don't get stuck with Nicole, a weakling
States passed statutes shifted common law presumption, lacks magic words, but still a
fee simple
Still a good idea to use "and his heirs"
O grants "to A for life, then to B and his heirs"
A has the present interest, future interest to B, heirs have no interest
Will B at any time have present interest? Once A passes away or A could give it to B
ahead of time.
When A dies, B has present interest
"to Alastair for life"
Creation of life estate, gives owner full ownership of the land for his life, all rights are
extinguished at the death of the tenant
Reversion
Follows from life estate as a future interest in either original grantor or heirs.
Owners have no right to present possession, have right to ownership after the
expiration of the prior estate, typically the death of the owner of the present interest.
Generic word, large category, any bundle of sticks that O doesn't manage to give away is
a reversion
Saleable and inheritable
Conditional Fees: Future Interest in Grantor

1. Fee Simple Determinable: "O to A as long as the land is farmed"
Places condition on the present interest
If condition on interest is violated, present interest reverts back to granter
AUTOMATIC TERMINATION
A has the present interest, a conditional life estate
If the land is not farmed, the land reverts to O
O retains a future interest, fee simple, the future interest will vest if A violates the
condition
"Upon a grant of exclusive use followed by an express provision for reverter when that use
ceases, courts and commentators have agreed that a fee simple determinable, rather than a fee
simple subject to a condition subsequent is created." Mahrenholz
Possibility of Reverter
o If condition on interest is violated, present interest reverts back to grantor
o Non-saleable, but can be inherited

2. Fee Simple Condition Subsequent
Places condition on the present interest that can be terminated at the election of the
grantor
IT IS NOT TERMINATED UNLESS THE GRANTOR TAKES ACTION
"O to A and his heirs provided that/so long as A farms the land. If A ceases to farm the
land, O gains the right to reenter."
If A stops farming, the sticks stays with A until O reenters
Preferred when there is ambiguity, creates a more stable estate in A, forfeitures to be
avoided

Power of Termination/Right of Re-entry
o If party with the present interest violates a condition, party with future interest
can choose to take present interest
o Non saleable, can be inherited
Examples
Ex: "To A and her heirs so long as the land is farmed provided that if the land isn't
farmed, O shall have the right to reenter"
o Condition subsequent, despite "so long as" (fee simple determinable language)
o "Provided that" and the "right to reenter" (condition subsequent language)
Ex: "Fail to comply with the conditions, then said property shall revert to Grantors, or
their heirs, without the necessity of re-entry." Fletchers
o Fee simple determinable
Drafting Language
Fee Simple Determinable Fee Simple Condition Subsequent
"Until"
"So long as"
"During"
"while_____"
"Used for school purposes only" Mahrenholz
"Right to reenter"
"Upon condition that"
"Provided that"
"Revert" does not automatically mean CS
Mahrenholz

i. Conditions may be lifted after a long period of time and "magic words" are needed

Robert v. Rhodes
o First deed, "it being understood that this grant is made only for school or cemetery
purposes."
o Second deed, "It being understood that this grant is made for school and cemetery
purposes only."
o No "magic words" of fee simple determinable/condition subsequent
o Roberts wants the land back, is the heir to the original owner
o D For school purposes for a "for a reasonable time"grantor's intent met
o Rule if your client wants to get rid of a condition
"Mere expression is to be used for a particular purpose will not in and of itself
suffice to turn a fee simple into a determinable fee"
o The court held, if you have a deed that doesn't have the magic words for creating a
conditional estate and if the estate has been used in compliance with the condition for a
long period of time, the court might lift the condition
o This court cares about the fact that the land has been used for school purposes for over
60 years
ii. Fee Simple Determinable > Condition Subsequent & Possibility of Reverters Can be Inherited
Mahrenholz
Huttons granted to school 1.5 acres, conditional fee
o "this land to be used for school purpose only; otherwise revert to Grantor's
therein.."
Huttons gave land to Jacq who gave it to P, they sold everything to P, including the
reversionary interest
P wants it to be perceived as fee simple determinable, the minute in 1973, that classes
were no longer held, Harry owned the land, conveyed to M
D argues that fee simple on condition subsequent, re-entry required, which Hutton did
not do once classes ended
Possibility of reverters cannot be sold
o So P would have gotten nothing because you can't sell a reversionary interest
from Jacq and Harry if that is the case
o P can tell Harry to re-enter the land and convey it to them
Contains a limitation within the granting clause, limited grant instead of a full grant
subject to a conditionfee simple determinable
Boy Scouts
Can use Rhodes in determining whether it was used as a camp for a long time
They have to characterize their actions as being in compliance with the grant, used $ for
logging to support other recreational purposes, assuming the grant said that
Heirs can argue, fee simple determinable, you violated the condition
Distinguishable from Rhodes, schools expire, but land doesn't, pubic interests shift
however





Conditional Fees: Future Interest in Third Party

Larry and Yale
Two estates were created
1. Larry had a life estate and fee simple
2. If Larry dies, Yale gets a fee simple
o Yale's interest is a remainder in fee simple (future interest in third party)
He used to have the same bundle of sticks, gave some away
Life estate is not worth as much as a fee simple, you can't leave it to your heirs
If Larry wants to sell his property, person who buys the house, buys both the life estate
and future interest merges into fee simple
Yale would get $ faster
Remainder
Future interest in a third party
Remaindermen have no right to present possession, have to right to ownership at the
expiration of prior estate
1. Can't take effect before the expiration of the preceding estate
2. Can't take effect after the expiration of the preceding estate (No gap in seisin)

+

Vested Remainder
1. If X is a person born and ascertainable AND
2. No condition is placed on the interest other than the expiration of the prior estate

Example
"O to A for life, then to B and his heirs" (no gap in seisin or condition)

Vested Remainder Subject to Partial Divestment (See RAP)
"O to A for life, then to the children of A"
If childless, contingent on A having children (see below)
If there are children, vested subject to partial divestment, ascertainable
party(ies)
Subsequent children (unascertained parties) can partially divest existing ones,
we don't know what proportion the child will get until the class closes


Contingent Remainder
1.If X is unborn or unascertained
2.If a condition exists and must be satisfied before X can take possession
Always accompanied by a reversion (condition not met)

Examples
1. "O to A for life, then if B survives A, to B and his heirs"
Can take effect immediately, B has to survive
2. "O to A for life, then to B's first born daughter if she is living at the time of A's
death, and her heirs."
B has no children at the time, contingent on being born and surviving A
3. "O to A for life; then to the heirs of B (living)"
No one is a heir of the living, B can change the will
4."O to A for life, then to B and his heirs, if B becomes a concert pianist."
Contingent on B becoming a concert pianist, "then," not "but" see below

Class Gifts
"O to A for life, then to the children of B."
o B has no children, children of B have contingent remainder even if
B may have children after A dies
o Children of B at the time of A's death took contingent remainder
o Class gift, class closes when A dies

If not a remainder, executory interest.
Future interest given to third person (everything that doesn't qualify as a
remainder)
Grantor "O" has a reversion, no express language needed for that
1. Springing
Springs forth from grantor, gap in seisin, doesn't take affect right away
Ex: "O to A for life, then two years after A's death, to the Lion's club."

2. Shifting
Shift the estate from the grantee to a third party (without a gap) or from one
third party to another
Potential to cut short
Examples
1. "O to A and his heirs, but if B runs for president, then to B and his heirs."
2. "O to A for life, but if B graduates from law school, to B and his heirs."
"But" -> typically signals it's not a remainder
o Shifts from A, grantee to B, if graduates, which can happen while
A is alive
In order to the name the estate at the time of the grant
1. What kind of remainder at the beginning? Either will be vested or contingent
2. What kind of reminder at the end? Fee simple, fee simple determinable

Fee Simple Subject to an Executory Interest
Present interest that is limited by a condition that if violated transfers interest to a third
party
"O to A and his heirs so long as no liquor is consumed on the premises; then to B and his
heirs."
Restraint on Alienation
If conditions are a restraint on alienation, they must be void
Mountain Brow
o One party was arguing that it was a conditional fee
o Other side was arguing that the land was a fee simple absolute because the condition is
void
o "Said property is restricted for the use and benefit of the second party, only; and in the
eventof sale of transfer by the second party of all or any part of said lot"
o Conditional fees limit land use, here limits second party's ability to sell, who can use the
land
o Can sell conditional fees despite limitation on land use
o Here, the land can never be sold
o The court strikes down second clause "sale transfer" but upholds the first clause which
in effect says the same thing
o If the land can only be used for the use and benefit of the second party, it can't be sold
o Struck down one clause that was a RA, left another clause that was also a RA
Hypos
1. Grant land to LA for irrigation purposes, use one of the magic phrases, "so long as"
You can convey land to LA so long as it is used for irrigation purposes
If the city of LA sends the land to Pasadena that it is okay as long as Pasadena uses it for
irrigation purposes
2. Grant land to LA for its use only
Restraint on alienation
3. "To A, as long as he doesn't sell to Kirby"
No restraint on alienation because property can still be sold

Liberal Vision Rationales For/Against RA

For Against
Person who injected labor into the land
has control over it and that person can
restrict its sale
If the court upheld the language to mean
for use of Lodge #82 and if it goes out of
business, the land can never again be
used
You have to use land most efficiently; you
don't want to leave land idle
People should use property to create a
stream of wealth
Economic strain, doesn't make sense to
alienate land
You want to keep land fluid, as society
develops, land use should go along with it
Concentration of wealththreat to
republican vision

Rule Against Perpetuities
Contingent remainders, executory interests, and vested remainders subject to open had
to "vest" if at all within "lives of being" + 21 years
Does not apply to reversions, possibility of reverters or right of reentrywhere grantor
has a future interest
If one possible scenario where the interest could vest only after lives in being plus 21
years, violated
If someone is not born until after the grant, not a life in being
Create, Kill and Count Approach
1. Create someone in whom the interest can vest, but only after time the period
o To save, substitute unascertained parties for names
o Only one person will satisfy condition, can't create someone new.
2. Kill everyone alive at the time of the conveyance ("lives in being" part taken care of)
3. Count 21 years
Examples
"To A for life if B survives A"
A has a life estate
B has a contingent remainder, he has to survive A
B will never cut A's life estate short because there's not "but"
Either will become possessory after A dies or fail immediately
"To A and her heirs as long as the land is farmed, then to B and her heirs."
A's interests are valid A has a fee simple and the RAP doesn't apply because it's a
reversion
B's interest valid?
o A farms the land and it's farmed 1000 years and then it stops being farmed, that
clearly lives in being + 21 years
Operates to strike down any future interest in a third party in a conditional fee
"To A for life, then to A's widow for life, then to A's surviving children."
A has a life estate, A's widow has a contingent remainder in life estate
o Not Joe, Mary or Suzy, it's to happens to be A's widow
A's widow's interest doesn't violate, will either become possessory or fail immediately
even if she is not alive
A's surviving children contingent remainder in fee simple, but violates RAP
o Have to be A's children and they have to survive
o A marries someone not alive at the time of the grant, wife lives longer than 21
years after A's death, grant to children could vest greater than lives in being plus
21 years
Lives in beingcan't be those born after the grant, so A is
A marries someone not alive at the time of the grant, wife lives longer than 21 years
after A's death
Kids inherit land forty years after A diesvests
Strike "then A's surviving children"
"To A for life, then to B, if B reaches 25."
A has a life estate
B has a contingent remainder "then", B has to reach the age of 25
A has a reversion
No violation of RAP will either become possessory or fail immediately
"To A for life, then to A's first child to reach age 25."
A has a life estate, contingent remainder on both unascertained party and the party
reaching 25
Violation of RAP
1. Create D, who's born after the grant
2. Kill B and C (other children alive)
3. Count, D can't take possession until 25 years old, could reach 25 years of age after 21
years
4. Strike portion
"To A and her heirs as long as long as A farms the land, then to B and her heirs"
Latest time B's interests can vest when A dies, no lives in being plus 21 years
To save grantlimit the condition to life of the first taker so it will take possession
immediately
RAP and Executory Interests
Shifting executory interest where condition is not tied to a life in being, RAP almost
always violated
"To A and his heirs as long as alcohol is not sold on the land, then to B and his heirs."
Create heir for A, X, who inherit interests, kill A, count 21 years, in which X could sell
alcohol
Striking
"To A and his heirs as long as alcohol is not sold on the land, then to B and his heirs."
o Strike out everything after "land"
o Determinable words of limitation -> fee simple determinable left after RAP
"To A and his heirs, but if alcohol is sold on the land, then to B and his heirs."
o "To A and his heirs" is left
o Executory interest subject to an executory limitation (cond subseq words) -> fee
simple absolute left after RAP
Metro
o P had preemptive right to purchase it if it was sold
o Instead of saying counter- offer abolished preemptive right, decided preemptive right
violated RAP and was void from the beginning
o If the right could be out for 70,000 years and exercised it
o To avoid RAP, limit it one of the measuring lives
o "A preemption does not violate RAP if it is drafted so that is it personal to those making
the promise."
o Here, preemption meant to continue after deaths, violates RAP
Should we have RAP?
Prevent an Inca problem where the dead control the land for years to come
Land can be controlled through fee simple, shouldn't have someone controlling land
long after the deads
Liberal economic visionwe don't want someone six generations ago deciding who can
use the land forever, they will have a right to determine personal relationships for
generations to come
If you earn your wealth instead of inheriting it is an incentive to work hard for the
common good as it creates more wealth
A person who has worked hard should decide how wealth has distributed throughout
their family
o If you tell someone they can't control their wealth, they will not have work as
hard
The RAP has basically been abolished in the US in the past decade because of dynasty trusts
Concurrent Estates
When you look at most of the wealth of individuals in the U.S. it's owned in groups
i.e. corporations, married couples in a house, partnerships, rights to natural resources
Severaltyown it by yourself, normally referred to as "owning it severalty"
Couples own as joint tenants to avoid their house being tied up in probate
If you show up as couples or domestic partners you are shoved into the joint tenancy
box, if one dies, other automatically owns the whole house
If one died, the interest of the person would be tied up in their estate, surviving partner
would not own it until estate settles
Joint Tenant With Right of Survivorship can include couple's bank accounts
Tenancy by the entirety can only be terminated by the divorce of the couple, death of
one spouse, or the agreement of both spouses
Categories

Joint Tenancy
Presumption for husband and wife
Not tied up probate, free from claims of
creditors of other spouse
If joint tenant dies, survivor owns
entire property in severalty
Can only be created if four unities are
observed:
1.Time
Must vest at the same time
2.Title
Acquire title by same document or
simultaneous adverse possession (unlike TIC)
3.Interest
Equal shares (unlike TIC)
4.Possession
Tenancy in Common
Common law presumption
No right of survivorship, goes to
heirs (not surviving tenant)
Privilege to enjoy entire property
Unequal shares allowed and still
enjoy entire property
Different time and instruments
allowed
Can sell, mortgage, lease or
otherwise transfer all or part of
interest without consent of others
Joint tenancy can be transformed
into this if one party secretly sells
interest
Legal right to possess the whole (like TIC)
5.Explicit intent to create

Murder severs, murderer only
receives and the remaining interest
goes to heirs

Example
o A, B and C are in a joint
tenancy and A conveys
interest to X, B and C are
still joint tenants
o As a group, tenants in
common with X.
Republican visionspreading the
property among a wider group



Language
"Not as tenants in common" included in the grantovercomes the presumption of
tenancy in common
"To M and C jointly" was construed by a court to create tenancy in common
Four unities + intent still required
If there are unequal shares granted, "to A 1/3 undivided interest, and B, a 2/3 undivided
interest" no joint tenancy created despite four unities + intent

Uniform Simultaneous Death Act
If A and B are joint tenants and each has their own heir, AH and BH, AH will get and
BH will get 1/2
Alma Soul Problem
Time and title are the key unities here
If Alma were to convey it to Donald and his wife, no unity in time and title because
Alma's time and title are from the 1960s and Alma was one of the named parties, you
can't convey it to yourself
Debbie is the straw for the creation of joint tenancy
Tenancy in Common (San Francisco)
Andy Sirkin created a new structure for TIC agreement, included a contract so each
tenant would not have the right to possess the whole (going into each other's unit)

Community Property
Community property cannot be conveyed unless both agree to do so
Indestructible right of survivorship which provides for protection against creditors
If one person placed their interest as collateral, creditor could not seize the property
unless the partner agreed
Cannot partition interest
Same protections as tenancy by entirety
Marriage or domestic partnership required
Harris v. Chowder
Husband, debtor, owed creditors, wanted to partition the house so they could get $
Judge begins with W. Va Code 87-4-3 which states that the court may order a sale for
partition if "the interest of the other person or persons so entitled will not be prejudiced
thereby"holding
Creditors have now fewer rights that are ambiguous
Appeals to biblical notions of fairness, creditors don't lose much, but the wife loses her
house
Tenancy in entirety in effect because dividing the house would make it worthless "two
useless pieces of junk" the wife would homeless and would lose great mortgage
National policy, 22 states have tenancy in entirety, against have women and children
being deprived of their property interests
Liberal dignity argumentcapitalism is great, but we need limits
Relationships Among Co-Tenants
Same for joint tenancy and tenancy in common
1. Statute of Anne
Third Party Rents
If one party gets 100% of the rent, the other party is entitled to an accounting, obtaining
their share of the rent, 50% right away by taking the other tenant to court
Ex. Kirby and Williams concurrent owners, have a little cabin in Tahoe and they rent to Ben.
o Both can get the rent through an accounting, Ben pays Kirby 100% Williams can force
Kirby to give her 50% right away
o Kirby and Williams rented the whole thing to Ben, they get 50/50 (only if they have
50/50 interest)
2. Mesne Profits
When a co-tenant rents his interest
Only one interested rented out, Statute of Anne does not apply
If the other co-tenant shows that they have been denied the right to occupy the whole
premises there is an ouster
Co-tenant has to pay ousted tenant mesne profitstheir proportional share
Ex. Kirby rents his interest to Ben, Ben has the right to occupy the whole premises, but only
pays Kirby's portion of the rent.
o Williams has to show that you have been denied to occupy the whole premises, tell
Kirby you want to occupy the whole thing
o If Kirby says no, than there's an ouster
o Kirby owes Williams proportional share (mesne profits)
o If Kirby said, "Go ahead," no ouster
Split of authority on whether an occupying co-tenant has to pay a non-occupying tenant
proportional share

3. Carrying charges
Paying a mortgage, insurance, taxes
If one co-tenant is paying and the other is not, is entitled to an accounting so property
will not be lost
4. Repairs
Co-tenant is not entitled to contribution for repairs until partition even those necessary
to preserve the premises
If premises physically partitioned, improver will have right to improved portion
If partition by sale, improver will gain a credit only for the amount the improvement
added to the value of the property
o Will get credit for repairsno cap
Ex. Hole in the roof, Kirby fixes it, can't come after Williams for it, but he can get credit at
partition

Partition
Agreements to restrict partition usually upheld

Partition by Sale Partition in Kind
Statutes construed narrowly because
they interfere with property rights
Forced sales by nature are unfair
Require clear showing the property
cannot be divided
Common law presumption
Mean for agricultural land
Preferred over sale


Allotment
Cotenants who desire to retain their interests to set apart or allot their portions from
the property prior to the remainder being sold
Owelty
Payment of money between cotenants to equalize the division of unequal shares for
partition
Al and Edna Problem
Al owned it in tenants in common with his four nephews, one of the nephews wanted $,
but Al wants to keep the farm
Common law presumptionpartition in kind
You can buy out Norm
Allotment-if he doesn't have money for full buy out, Al can buy out the area around the
house and the hill (where ashes are)
Al has a legal right to be reimbursed upon partition for repairs and improvements
Could have gotten an accounting for carrying charges, will get credit at partition
o Mortgage payments, property taxes (the value of the land kept increasing)
If Vermont is a jurisdiction where non-occupying tenant is owed rent, father might have
to pay it
Marital Property

Borellli
Majority opinion demonstrates that coverture is not dead
o Coverturewhere both husband and wife owe each other a duty of support
Contracts whereby wife is to receive compensation for providing service to husband are
void against public policy and there is no "consideration"
o Owed a preexisting duty to support husband
Dissent points out CA statute, "either husband or wife may enter into any transaction
with the other, or with any other person, respecting property, which either might if
unmarried."
o Wife would have been able to leave husband at his time of need
Martinez
Court overruled lower court's direction to devise an award of equitable restitution
o Could potentially deny the other spouse a reward if didn't contribute to
marriage, despite inability to pay
o Speculative
o Degree cannot be sold on the open market is not marital property
Can compensate disadvantaged spouse through alimony
Dissent argues there is insufficient tangible property, child support is for children and
alimony maintains standard of living enjoyed during the marriage
o Focused on loss, not need
After a Divorce
Equitable division of marital property: usually split 50/50
Child support: ongoing, periodic payment made by a parent for the financial benefit of a
child following the end of a marriage (tied to childs needs, dont consider the spouse)
Alimony: obligation to provide financial support to spouse after divorce
o Rarely awarded, usually low and temporary (rehabilatory alimony)
o If spouse can support himself/herself, probably will not receive
Landlord and Tenant Law

Who are the landlords?
The slumlord: makes profits off the poor and milks his buildings
The honest, struggling, entrepreneur: struggling to break even while maintain habitable
housing for his tenants
Background
Under Contract law, if a tenant fails to pay rent, can be evicted because that is a
material breach
In Property, lease was a conveyance of an interest in land and it was chief consideration
Covenant to pay rent, make repairs, etc. action for damages for each breach, but no
leverage to evict
Now statutes allow for eviction for the nonpayment of rent
Statutory Termination

1. Maryland
One month written notice needed if tenant violates the lease and landlord wants to
repossess
If a court determines that the breach was "substantial" court can issue judgment for
restitution (repossession)
Another type of breachelaborate process provided for
2. Virginia
"If the rental agreement is terminated...landlord may have a claim for possession"
i.e. if you have a poster that bothers the landlord, you could kick them out unlike
"substantial" breach in MD
In Virginia, the landlord can determine the breach and evict tenant
Different Kinds of Tenancies

1. Term Tenancy
If you have a tenancy for a term, it has a start date and an end date
2. Periodic Tenancy
Month to month
Can be terminated at the end of a period either by the landlord or by the tenant
Rolloverif you end a term tenancy it can be rolled over to a periodic tenancy
You can get out of it whenever you want, but so can landlord
Weapons a Tenant Can Use
1. Technical defense
In many jurisdictions, notice to quit have to provide 30 days' notice + be scheduled on
the day the period ends otherwise the period renews
o Ex. If lease begins on 1/1, would end on 1/31. Notice to quit send on 2/15, would
have to be thirty days notice +scheduled on day period ends so 3/31
In California, if a landlord sends an invalid notice to quit, becomes valid on the first day
it could have been so 3/31, does not automatically renew
2. Is there anything broken, is the place trashed?
If there is no escrow requirement you can say client was not paying because of breach
of implied warranty of habitability
3. Constructive eviction
If L interferes with T's enjoyment of the property, T can move out, terminate the lease
and be relieved by payment of future rent
In Vermont and other states, subsumed by IWH
"the doctrine of constructive eviction is no longer a viable or needed defense in an
action by the landlord for unpaid rent." p. 239 Footnote 3
4. Acceptance of Rent
Tenant has a notice to quit, will be on the street if evicted
Say, try to pay rent for the next month, if landlord cashes it, you have one more month
It has to be full rent
Acceptance of rent gives inference of waiver



Anti-Waiver Statutes
When a tenant agrees to waive a notice provided for by statute, agrees to shorter time
periods or give up another substantive or remedial right

Maryland Virginia California
A tenant does not have to waive
"Right or remedy provided by
applicable law" includes common
law (broad)"
"Under this chapter" statutory
law (narrowwhat cannot be
waived)
List of specific provisions that
cannot be waived
Lease provision is not
enforceable
The minute the landlord tenders
the lease to the tenant, general
anti-waiver provision is triggered
Lease provision is not
enforceable
The landlord tenders the
lease to the tenant, landlord
must have attempted to
enforce the lease provision,
that triggers the anti-waiver
provision
Not much protection, tenant
will not want to go to court

If someone takes
possession before the lease
is signed, shall be void
contrary to public policy
Most people sign the lease
and move in
Few protections
Tenant can recover damages Tenant can recover damages

Hilder (IWH)

Arguments and Holding
For tenantliberal dignity strain, no one should have to live in deplorable conditions
such as these
o She couldn't have guests, had to put her grandchildren at risk, health is impaired
For landlordliberal economic strain, honest struggling entrepreneur, do we want this
housing on the market?
Court held there is an implied warranty of maintaining a safe, clean habitable dwelling
"In determining whether there has been a breach of the implied warranty of
habitability, the courts may first look to any relevant local or municipal housing code"
"Determining whether there has been a breach of the implied warranty of habitability,
court should inquire whether the claimed defect has an impact on the safety or health
of the tenant."
"In order to bring a cause of action for breach of the implied warranty of habitability,
the tenant must first show that he notified the landlord "of the deficiency or defect not
known to the landlord and [allowed' a reasonable time for its correction" p. 239
A substantial violation of an applicable housing code shall constitute prima facie
evidence that there has been a breach of the IWH
Remedies
1. Standard K remedies of rescission, reformation, and damages (measure shall be the
difference between the value of the dwelling as warranted and as it exists in its
defective condition)
Ex. leaky roof, value of apartment is $300, if L had met IWH, would have been $600, T
entitled to $300
2. Can deduct repairs from future rent when landlord is notified of the defect, but fails to
repair it within a reasonable amount of time
3. Withhold rent so the burden and expense of bringing suit is on the landlord
4. Punitive damages when landlord fails to repair essential facility, causes discomfort and
annoyance to tenant
o When the LL, after receiving notice of a defect, fails to repair the facility that is
essential to the health and safety of his tenant
"it is no longer for the tenant to first abandon premises."
Implementation of Implied Warranty of Habitability
Relatively little effect
1. Lack of legal representation
2. Meyers argues that tenants might see that raising L's maintenance costs might lead
them to raise rents or abandon their buildings
3. Bezdek argues it's because the way the court system is set up
IWH always likely be affirmative defense
Baltimore courts require notice to L via a certified letter, with receipt
Courts placed procedural hurdles and rigorous methods of proof for IWH
Judge argues L's case for them
Posner and Ackerman IWH
P states "Ordinances designed to protect tenants.they raise landlords' costs and
therefore increase rentals and reduce the supply of housing"
A starts out by saying "my nine assumptions" whereas Posner embeds his assumptions
P's key assumption, L will try to pass their costs on Ts, but they might not be allowed to
P believes in the image of L has a honest, struggling entrepreneur
A argues that L would end up eating that cost, T wouldn't pay
A believed in the image of a landlord has slum lord, with huge profit margins and
delivering poor conditions to tenants
Retaliatory Eviction (CA)
Restrictions were necessary once there was an implied warranty of habitability
Most low income tenants have a periodic tenancy
180 day limitation for lessor repossessing, raise in rent or decrease of services
If the lessee is behind on their rent there's no protection
If tenant withholds rent because of breach of IWH, does landlord have RE restrictions?
You can't use this provision more than once during a 12 month period
Could repossess, raise rent or decrease services if done in "good faith"
$100-$2000 can get punitive damages for each RE and actual damages, reasonable
attorney fees
Cannot waive

Assignments and Subleases

Assignment
Privity of estate (leasehold relationship) between L and assignee created
o Each is obligated to perform those covenants of the original lease that "run with
the land"
o Can only have privity of estate with one person
Lessee still liable to L under privity of contract, but no longer privity of estate
Lessee and assignee are in privity of contract because an assignment is a contract
When assignee agrees to assume lessee's covenants and obligationsprivity of contract
exists
o Express intention to benefit lessor required
Sublease
No effect on privity of estate or privity of contract from the main lease
Lessor and sublessee have a landlord and tenant relationship separate from the L and
lessee onethis relationship has privity of estate and contract too
o Lessor is liable for sublessee if there is a breach in the original lease
Lessee is still liable to the lessor is sublessee breaches the terms of the original lease
Lessor and sublessee not directly linkedcannot recover against them?
Figuring out the Difference
To determine whether the lessees transfer is an assignment or a sublease, look to
whether he has retained a reversion
o Reversion-- sublease
In sign over situations, determine if there was a reversion
o Reversion-right to move back in once sublease was over
Ex. foreign exchange students in during June, July, August, lease was from
April to April, would have a right to move back in and there would be a
reversion
If the students were there the last three months that would technically
be an assignment
Original tenant usually always remains on the hook as a surety
Modern test: intent to create a new landlord/tenant relationship (sublease) or whether
rights would be transferred (assignment)
Who can L sue? Problem p. 250
L-T signed lease, annual rent was $60,000
Privity of contract and privity of estate
L can recover $60,000 against T (had lease for one year before conveyed to X)
T signed over lease to X, "covenants to perform the terms and conditions of the original lease"
Since there's no reversion, this is an assignment, there is no longer privity of estate
between L and T, but L and X
If X assumes the covenants of the original lease, has privity of contract with the original
landlord
o L as a third party beneficiary can enforce it against X
T is still on the hook to L because of their contractual relationship
X is liable to L for 120,000 (two years of the lease were remaining)
X signs over the premises to Y for three months
Agreement says Y covenants to pay for use of premises
There is a reversion since Y will have premises for three months and there will be time
left on the three year lease
Because there is a sublease, privity of estate does not pass to Y, but stays with L and X
Privity of contract between L and Y to pay rent
Y expressly assumes this covenant, intended to benefit L
Y liable to L for $45,000
AAA corporation acquired X's interest pursuant to an execution sale
Assignment because X has no reversion, AAA bought everything
L has privity of estate with AAA corporation, no longer with X
No privity of contract with AAA, no express intention to benefit L
No express rescission of the contract, X and L still have their contract and L and Y have
their rental agreement
AAA liable to L for $15,000, only had it for three months
AAA signs over to Z
Privity of estate between L and Z because there is no reversion
No contractual obligation between AAA and L
One year left on the lease, Z is liable to L for $60,000

Kendall (CA)
o Bixler wants to sell to Kendall, but Pestana needs to give consent, lease states no
assignment or sublease without landlord's consent and Pestana did not consent
o Can draft these provisions three ways...
1. Silence on assignments/subleasesallowed
2. Assign or sublease with landlord's consent
3. You can assign or sublease with landlord's consent, but may not be
unreasonably withheld
o Provision here fit into 2, but court made it into 3
o Landlords cannot unreasonably withhold consent to assignment and sublease
o Unreasonable: denial solely on the basis of personal taste, convenience or sensibility
(subjective reasons) as well as wanting to charge a higher rent
o Reasonable ex. to preserve landlord's property and to ensure the performance of the
covenants
o Restraint on alienation of leasehold interest if consent is unreasonably withheld
o Contract law, there is an implied covenant of good faith and fair dealing
Mandatory Mitigation
i. If a L fails to mitigate, reduces rent recovery against T

Sommer
o L waited 15 months and turned a ready, willing and able tenant away
o L has to make a reasonable effort to mitigate damages
o Trail court can consider whether L personally or through an agency showed the
apartment to any tenants or advertised it in a local newspaper
o No standard formula, each case judged on its own facts
o L has to make the same effort that any commercially reasonable landlord would
undertake to rent any vacant unit
o L has burden of proof for showing mitigation of damages
Delivery of Possession

1. American Rule
L rents to Michelle, at the end of the lease, she does not move out, Keisha was
supposed to move in
So long as L have delivered the legal possession, L has done everything supposed to do
Keisha has to evict Michelle on her own, L has no duty to evict Keisha
2. English Rule (alternative)
Keisha can terminate the lease or seek damages from L
"If the landlord willfully fails to deliver possession of the dwelling unit to the
tenanttenant may terminate" (VA)
In most cases it will not be L's fault that tenant did not leave

HUD v. Rucker
o Public housing authorities have the discretion to evict T for the drug-related activity of
household members and guests whether or not T knew or should have known about the
activity
o "Any member" precludes knowledge requirement
o "or under the tenant's control" does not modify "any member" or "guest"
Landlord Liability

Kline (Washington DC)
o Broken lock caused woman to be severely attacked in the lobby of her building
o Court held L was liable
Oxford Management (New Hampshire)
o L have no general duty to protect T from criminal attack, such a duty may arise when L
has created or is responsible for a known defective condition that foreseeably enhanced
the risk of criminal attack
Ex. If you put up lights than they burn out, L can be liable
Not liable if never puts up lights (signal to L to not to do anything)
o Court says IWH just refers to conditions of premises, does not refer to criminal activity
of third parties
Exceptions to Landlord's General No Liability for T's Personal Injuries
1. Latent Defect Doctrineknown to LL, but concealed from T
L knew that sash cord was frayed and T didn't know it was frayed, than T could sue L for
personal injury
2. Defects in premises leased for public use
L has to conduct a reasonable inspection and to repair defects
Member of the public and T can sue
3. Negligent failure to maintain common area or other portions of the premises that the
landlord controls

4. L who repairs the premises negligently is also liable for resulting injury
If L undertakes to repairliable
San Jose Santee Neighborhood
Whole neighborhood had terrible conditions, San Jose City Attorney's options?
1. Enforce the housing code
Ordering housing code inspectors to concentrate their efforts here and hand out
citations
2. If rodents are there, breach in IWH
Possible punitive damages, failure to repair essential facilities after notice given to L
3. Tort liability
Has anyone been injured?
Oxford Management
San Jose City Attorney actually started giving them jail time
Landlord Default
Mortgages trump a lease if L defaults
Subordinating lease to the mortgage is often required to get a mortgage
L will cancel the lease
License and Lease Differences
1. Reentry for reasonable purpose versus 24 hours notice
2. Entire balance due at move in date versus first day of the month
3. Not liable for utilities, Hastings is liable for longer than five days
No implied warranty of habitability for license, but it is a lease in effect
4. Deposit for license non-refundable in event of terminationnot for lease
5. 30 days notice for reassignment for leaseno notice for license
6. Damages provision, license doesn't allow for it, lease only $300
Servitudes
Generic term that covers two common law categories
o Modern trend to "lump them together"
1. Easement
Ex. right to use land
o Father sold the farm, but retained an easement to visit the hills where his
father's ashes were scattered
2. Covenant
A contract related to land that runs with the land that binds everyone who owns it
Easements
1. Affirmative Easements
Someone obtaining a right to do something that they would otherwise not have a right
to do
Ex. Williams walking over Elva's parcel to get to her house
2. Negative Easements
Someone agreeing not to do something that they would otherwise have a right to do
Ex. Bobby's Pacific Heights mansion, buys a negative easement from Keisha, her not to
build so he still has a view of the Bay
Vocabulary
Remote partiesparties other than those who created the easement
Dominant Tenementperson who has an easement attached to their parcel and they
are benefitted by easement
Servient Tenementsubservient to dominant, over whose land the easement travels
Appurtenant easementsattached to dominant tenement (the land)
o When land is sold, buyer obtains easement automatically
o Ex. When Burt bought the land, he not only had fee simple, but easement over a
parcel. Bird on top of the cow, goes wherever the cow goes.
o Deed has one piece of paper for the fee simple another for the easement
Easement in Grosspersonal to the landowner (no dominant land exists)
A. Truly personal grosspersonal to someone and not designed to benefit the
dominant tenement
Ex. Williams's Dad easement in gross because benefits her father. Does
not pass to anyone, non-assignable and died when he died.
B. Commercial grossused by power companies and are still assignable, protects
the company in the case of a takeover
Checklist for Easement Appurtenant
1. Has it been created?
If not it is a licensepermission informal and is revocable at will
For written easements the question is answered simply
Court can create one by operation of law
When intent is unclear, courts will construe an easement as appurtenant rather
than gross because it facilitates productive use of land
2. Binds these parties?
A. Notice of Easement
Written easements, accomplished easily.
Registering easement provides for constructive notice.
Usually an issue for implied easements
B. Intent to Bind Successors
Written easementphrases such as "heirs and assigns," "permanent," "forever"
"successors"
3. What is the scope, range of activities?
Easement is a right to use, how can it be used?
For prescriptive easement limited to the use that gave rise to it
4. Duration?
Typically lasts forever
Easement by prior use and prescriptive easementsperpetual
5. Termination?
Transmission Line Easement
Easement in commercial gross because it doesn't benefit a dominant tenement it's
personal to the power company
1. It's been created
2. Binding the parties is not relevant
3. Scope
"Right to enter and to erect, maintain, repair, rebuild, operate, and patrol one or
more electric power transmission lines."
You want to include everything that the power company would possibly want to
do
4. Duration
Even if it is sold, valid because it is an easement in commercial gross, it is
perpetual (lasts forever).
5. Doesn't provide for termination
Problem p. 301
A B
Affirmative easement not a lease because
it's perpetual
Easement appurtunment-with easement in
gross, right will not transfer.
Run with dominant estate forever.
Higher value if sold.
Fewer restrictions.
Easement for a five year term with an option to
renew
Narrow scopenumber of cattle per day that
can use the number and times of year
Indemnification provisionnot to hold B liable
for anything wrong that occurs.



Implied Easements

1. Prescriptive Easements

Beebe v. DeMarco
Beebes are owners of the servient estate
DeMarco are owners of the dominant estate
Beebes put up a fence, common first step in an easement case
DeMarcos sue for prescriptive easement, seek an injunction to tear down the fence
To obtain a prescriptive easement
1. Continuous Use
P used it whenever they needed to gain access to the rear of their property
Continuity is to the use the owner is putting it
o Only as frequent as is appropriate given the nature of the easement and the
character of the land
As often as five days a week
2. Adverse for a 10 year period
P did not obtain permissionpresumption of adversity not overcome
If possessors receive letter stating "Get off my land" or there is a "NO TRESPASS" sign,
that actually helps their position
3. Open and Notorious
Means not hidden
Objective testclear that it has not hidden, if someone was looking they would see that
it was open and notorious
o Visible tire ruts indicates long time, unhidden use
30+ years of use
Does not have to be exclusive, owner of servient tenement can still use land.

Intent and Notice
If a courts will go through the trouble of creating a prescriptive easement, they will not
ruin in by saying there was no intent and notice
o Courts usually do not talk about these requirements including Beebe Court
o Could have said tire ruts, were visible, constituted notice.


Scope for Prescriptive Easements : Undue Burden Test
Defined very narrowly and confined to the uses that gave rise to it
Undue Burden Test
"An easement owner is limited to those uses of the easement that are reasonably
necessary for the easement's intended purpose" quoting Tooker
If the scope of the easement is broad enough where the dominant estate places an
undue burden on servient estatenot allowed
Ex. Beebes wanted to pave parcel, would not be allowed because it was not paved or
being paved during the period in which the prescriptive easement arose
Ex. Glenn, prescriptive easement "limited to recreational use up to 40 days annually"
o Consistent with prior use
Ex. Buntons, wanted to use in inconsistently with how the Barbers wanted to use it
Release from Prescriptive Easement
1. Contractual agreement to release the servient estate from the easement
2. Purchasing back the easement

Preventing the Creation of a Prescriptive Easement
1. Put a gate around the property before SOL runs out (10 years) see Othen
2. Return receipt requested letter, "I give you permission to use my land"
Tolls SOL and owner of the servient estate is still able to build
2. Easement by Prior Use
When one portion of land "derives from another a benefit or advantage of an apparent,
continuous, and permanent nature"
Conveyed without reference to an easement
By grant or reservation
Granite Properties LP v. Larry R. Manns
Mannowner of servient estate
Graniteowner of dominant estate

1. Determine if there was common ownership with a quasi-easement
At the time of the common ownership, common owner used the parcel in a manner to
benefit the other parcelbefore severance
Ex. Used part of the land (current easement as a right of way)
Diagram demonstrates this because the paths that were being used at the time of the
common owner owned the whole parcel

2. Apparent and continuous use
Including when prior to granting easement to grantee
Parties will reasonably expect that use will continue
10-12 trucks were using the path everyday
3. Necessity
Without the second easement, alternative route would be dangerous for apartment
residents and stairways would be blocked
Without the first easement, deliveries would have to go through the front doors
because the trucks could not exit the same way they came in
o Front door deliveries would be disruptive
Implied Reservation and Implied Grant
Grantor owns whole parcel, grants out the landlocked parcel
o Implied grant of easement so grantee can use the road
o Reasonable necessity required
Grantor retains landlocked parcel
o Impliedly reserved for herself a right of way over the grantee's land
o Strict necessity required
o Granite sold Parcel B and is claiming to be landlocked made a mistake by not
reserving an easement
o Strict necessity not met because Granite still had access although not convenient
access
Easement by Necessity
Arises when land-locked portion of property is broken from a larger portion
Does not require prior use, but a high degree of necessity
Othen v. Rosier
O has landlocked parcel, only way he can get to the road is through D's land
R built a levee to drain D's land, caused lane to be muddy and unusable
1. Unity of ownership of the dominant and servient tenements
Hill owned O and R lands, can be determined by going to the land records
2. Roadway is strict necessity and not a mere convenience
O's land is landlocked
Can determine by witness testimony if they testify this is the absolute way out at the
time of the severance in 1896 case brought in 1950
o Was asked by lawyer if there was any other outlet to the road in 1896, witness
said he didn't know of any
o Clear it had been landlocked since 1900 though
3. Necessity must have existed at the time of the severance
This necessity must have existed at the time Hill owned it, so it had to be landlocked at
the time Hill conveyed the land to O
Court said for all the record shows that Hill might have been able to access the road
from the north or south
No written easement
No Easement Implied by Prior Use
1. O could not prove common ownership because there is no evidence that Hill was using the
disputed lane
2. Not continuous for ten years
He lived there and he left
Cannot say that he has always taken this path
Opened and closed the gate indicating he was given permission to use the land
o Because of gate, no adversity for prescriptive easement
Covenants
Is a promise related to land
Resembles a contract, but are different because covenant is intended to burden parcels
forever on
1. Equitable Servitude
Covenant to be enforced in equity
If you seek an injunction as your remedy can be brought along with a covenant
Test
Doesn't matter if it's a burden or benefit
1. Intent to bind successors
2. Touch and concern
Restriction on land use always qualifies
3. Notice
Constructive notice if deed is recorded
2. Covenants at Law
If you seek a cause of damages as your remedy

A. Burden Situation
Defendant is the remote partyoriginal party trying to enforce covenant against
successor
A and B covenant (promise) to use the property for residential purposes
B sells to C who uses the property for nonresidential purposes
A sues C
To determine if the burden ran to C
1. Intent to bind successors
o Look for specific language such as "assigns" and "heirs"
2. Touch and concern land
o Court uses it justify conclusion
o Land useyes
o Ex. Worship Allahdoesnt touch and concern land
o Rent, homeowners association's duescourts have upheld the
latter if they are closely tied to the land
3. Horizontal Privity
ORIGINAL COVENANTING PARTIES have to have one of three
relationships
A. Landlord and tenant
B. Grantor and grantee
C. Easement between them (MA)
4. Vertical privity
EACH REMOTE PARTY the same interest or estate as the person who
sold them the land
o If a successor gets a life estate, doesn't count
Presentsuccessor succeeds to the entire estate of the land
No presentsuccessor succeeds to the less than the entire estate
o Ex. life estate
B. Benefit Situation
A sells to D, D builds the apartment building, violates residential use only
covenant
Plaintiff is the remote partysuccessor trying to enforce promise against
original party
To determine if the benefit has run to P
1. Intent
2. Touch and concern
3. Vertical privity
If both parties are remote, benefit and burden have had to run

Examples
1. Raisin Problem
Intent "regardless of the ownership of the said land"
Doesn't touch and concern the land because raisins can dry anywhere
2. A and B are neighbors, they agree to use their lots for single-family residential use. A sells
to C, who starts to build an apartment building, can B sue?

Did the burden run and is there a covenant at law?
1. For intent to bind successors look for specific language
2. Touches and concerns land because covenant refers to land use
3. Vertical privity because A and C have the same interest, fee simple
4. Likely no horizontal privity
The burden did not run here, so no damages remedy
3. B this time breaches and C wants to sue
Did the benefit run and is there a covenant at law?
Yesintent is present, touches and concerns land and vertical privity is present.
Gallagher v. Bell
Contract between B and Sisters was in regards to the excepted parcel and it stated, "The
subsequent purchaser" of the said and house shall agree to street bounding and share
costs
G's deed made no mention of the covenant
B were to grant G a temporary right of way in exchange for the street bounding/sharing
costs
B showed subdivision plat to G who approved it, later withdrew approval.
G sold property to C, agreed to indemnify C
Not a classic covenant case because original covenanting parties are in dispute
Had the covenant had run, or was the original party still bound? is the issue
Does the covenant between the B and G run with the land?
If not a covenant, personal contract and G would have to pay
o Still on the hook because of indemnity agreement with C
1. Touch and concern
Tests
A. Is the land more valuable because of the covenant?
B. Is the promisee benefitted in the enjoyment of his land?
C. Is the promisor benefitted in the enjoyment of the servient land?
B would be benefitted by performance of promise
G's interest less valuable by covenant
o G benefitted because they received a right away in the transaction from which
the covenant arose.

2. Intent to bind successors
Agreement with sisters indicated that obligation was on whoever purchased the parcel
Covenant expressly extends to assigns of G
Initially sought recovery from C
"subjective state of mind of the original covenanting parties"

3. Vertical privity

4. Like Restatement position, Court dismissed horizontal privity.
Effectively applies benefit test

Neponsit Property Owners Association
Is a homeowner's association fee a burden that runs with the land
No vertical privity
o Homeowner's association didn't own any property
o Does not have same interest in the land as the developer did
Court finds that the association is acting as an agent for property owners, means by
which they advance their common interests
Court doesn't support blind adherence to ancient formulafunctionalist approach
Nahrstedt (CA)
Restriction against keeping cats, dogs and other animals in the condo development
P argued that it was unreasonable as applied to her because her cats were not a
nuisance
Court states restrictions must be uniformly enforced, unreasonableness standard not
dependent on one condominium owner
Restrictions in planned development's master deed are presumptively valid even if
there is "some degree of unreasonableness"
o Invalid if arbitrary, violate a fundamental public policy or impose a burden on the
use of affected land that far outweighs any benefits
Housing Discrimination

Title VIII: Civil Rights Act 42 USC section 3604. Fair Housing p. 370
"It shall be unlawful" to do the following on the basis of "race, color, religion, sex, familial
status, or national origin."
(a) To refuse to sell or rent after making an offer, to refuse to negotiate or make unavailable a
dwelling
(b) Discriminate based on "terms, conditions, or privileges" or "provision of services of
facilities"
(c) Printing or publishing any notice, statement or advertisement includes on the basis of
"handicap"
(d) To state a dwelling is not available when it is
(e)To induce others to sell or rent on the basis of race, color, etc.

Handicapped Individuals
(f)(1) No discrimination in the rental or sale of a dwelling or making it unavailable based on:
Handicap of the buyer/renter
A person who is to live there or
Any person associated with the buyer or renter
(2) No discrimination in the terms, conditions, or privileges in a sale or rental or in the provision
of services or facilities because of handicap of the buyer/renter, etc.
(3) Discrimination includes
(A) Not allowing necessary reasonable modifications for the full enjoyment, if it's reasonable L
may obtain an agreement stating that the interior is to be restored
(B) Refusal to make reasonable accommodations in rules, policies, practices, or services when
necessary to allow one to enjoy the equal opportunity to use and enjoy a dwelling
(C) For multifamily dwellings (4+ units) after 1988
Common areas have to be accessible to handicapped persons
Doors have to be wide enough to allow passage of wheelchairs
Accessible entrance/exit
Accessible environmental controls
Reinforcements to allow grab bars and usable kitchens and bathrooms
(9) Do not have to make tenancy available where individual would directly threaten the health
or safety of others or where physical damage to the property of others would result
Section 3605
Realtors cannot discriminate in making available real estate, providing financial
assistance (loans), selling, brokering or appraising on the basis of race, color, religion,
sex, handicap, familial status or national origin
Section 3607
Religious organizations can limit the sale, rental or occupancy of the dwellings it owns or
operates to the persons of the same religion
As long as the religion is not restricted on the basis of race, color or national origin

3617
Cannot retaliate against someone exercising their rights
Exemptions: Section 3603
(b) (1) Section does not apply to owners who are selling or renting a single family house as long
as they
1. Do not own more than three single family houses
2. Owner has not made more than one sale in 24 month old period
After 1969 exception is limited to owners who do not
(A) Use a realtor
(B) Publish, post or mail, advertise or notify that is in violation of the section above
(2) Owner occupied: no more than four families and occupies one as residence

Hill v. The Community
Court found that the covenant, "No lot shall ever be used for any purpose other than
single family residence purposes" was not violated
o Look at covenant's purpose (structural appearance of neighborhood)
o P's complaints about increased traffic irrelevant
Three Claims for Violation of FHA 3604(f)
1. Disparate Intent
"Treatment" used for intent in FHA
Malevolent desire to discriminate not required
Split in juris on what "intent" is
People in the protected category are treated differently because they are in the
protected category
Causation argument
o Ex. Common way to prove, here is my client who is a woman, similar to a man,
but treated differently
o Here, evidence that Neighbors complained after newspaper article was
published and other covenants were violated is not sufficient
2. Disparate Impact
If you have a neutral rule that has a disportionate impact on a protected group
violation
Evidence that if you don't have these halfway houses, handicapped residents will have
nowhere else to live
o Enforcement of covenant, neutral rule has a disproportionate impact on this
group, because otherwise they could not live here
Nature of Interest
o Increased traffic is a private interest
o More weight is given to public interest
Relief Sought
o Neighbors not required to provide housing, but to prevent them from interfering
o Advances D's side
3. Reasonable Accommodation
Usually applies to someone that is constructing a building
Enforcement of the covenant (if it had applied) would have violated FHA
o Non-enforcement of the covenant is a "reasonable accommodation" of this
group
Nuisance
Private nuisancewhen one uses his land in a manner that injures a private
owner/occupant in the use or enjoyment of that person's land
o Unreasonable interference determined by weighing the utility of D's conduct
with gravity of harm it causes P
Public nuisanceis an activity that interferes with the rights of the public in general,
usually by threatening the public health, safety, or morals
o Public utility vs. harm to the public
One condo complex no, subdivision perhaps
Right common to the general public
Kivalina refused to use public nuisance theory to sustain the damages on the basis of
the political question doctrine
o Particularly because of causation issue as global warming is further removed
Court states it would have to determine what the acceptable levels of
emissions were
Water pollution casescausal link is tight
Hypo
Keisha owns her parcel of land that has a windmill, next to neighbor Sherry
Utility of the conduct
o To Keishaprivate nuisance
o Having wind alternative energy sourcespublic nuisance
Gravity of the harm
o To individualsprivate nuisance
o To publicpublic nuisance
Adverse Possession
If the true owner fails to start legal proceedings to remove a person who adversely
possess his land within SOL, the true owner is forever barred from removing the adverse
possessor
Adverse possessor obtains a fee simple

1. Holmes
Property takes root in your being, naturally would want to defend it
If you have been the adverse possessor, you have developed a relationship with the
property, which the law should respect
It would be "wrenching" for the adverse possessor to be separated from it

2. Posner
If adverse possessor was deprived of the property, he would experience a diminution in
his wealth and the original owner would experience an increase in original wealth.
Combined utility would be greater if adverse possessor was allowed to keep the
property if they had the same wealth
Maximizing wealth

3. Epstein
Vested ownership, first possessor makes it highly likely that the person will protect it
and use it efficiently
Efficiencyincreases the wealth of society, will create the best society
Anti-Environmentalist?
Why is inconsistent with conservation?
Adverse Possession makes land set aside for conservation vulnerable; owner might lose
land unless they are careful about policing it
Custodians used now
Standpoint of NGO, have a registry for conservation land
American Courts have interpreted adverse possession from pro-development
standpoint

Nome 2000 v. Fagerstorm
1. Determine the SOL which is 10 years
2. Determine the 10 year time frame to be used
3. CANEall four needed
Case filed in 1987 so latest it could have begun was 1977
P concedes as of 1978, D met requirements for AP, built a cabin that year
Focus 1977-1978
Continuous
Use land as continuously, ordinarily as the true owner would
Type of land here only meant to be used during warmer seasons
Adversity (Hostility)
1. Possessor acted towards the land as if he owned it (objective)
Took care of the land
If true owner authorizes or consents to the possession, it is not considered
adverse/hostile
o Ex. Barbers could have argued given Buntons permission to park their
motor home on their property
2. "Good faith" Test
Possessor must innocently, but mistakenly think that they are the true owner
"Gee I thought it I owned it"
3. "Intent to trespass"
Knew it wasn't there land and subjectively intend to take title from the true
owner
Invented in the 19th century, disappearing
Notorious
Would a reasonably diligent owner have seen a hostile flag over their property?
(Objective)
Trailer present
Actual knowledge not required
Exclusivity
Adverse possessor must use the land as exclusively as an ordinary true owner would use
it
Other people picked berries
Absolute exclusivity not required
Must exclude third parties only to the extent that a reasonable owner would do so
Constructive Adverse Possession
1. Color of titleinvalid deed
When claiming in color of title, adverse possessor gets entire amount of land described
invalid deed
o CANE still has to be met
2. No invalid deed, adverse possessor obtains the land actually possessed
Court looked at the southern portion of the land
Could a reasonable diligent owner known they had occupied the southern portion?
o No, they just picked berries and corner posts were not enough

Nielson v. Gibson (CA)
Test is roughly CANE
o Possession must be actual occupation under such circumstances to constitute
reasonable notice to the owner
o Possession must be hostile to the owner's title
o Claim property as own
o Continuous and interrupted for five years (SOL
o Must pay taxes for five years
Doctrine of Disability applies when someone is incompetent
o Tolls SOL for a period not to exceed 20 years
o Not applicable here because insanity not proven
Won on AP
Issue is open and notorious
o Would a reasonable diligent owner have seen a hostile flag flown over their
property?
o P placed no trespass signs, irrigated the property, planted gardens, maintained
fencing, cleared land, built a go cart track
o D argued actual knowledge was required, irrelevant because objective test
The Doctrine of Agreed Boundaries
Arose because it's difficult to prove AP in CA because of having to pay property taxes
Arise in rural areas or the context of boundary disputes
Provides title
Buntons v. Barbers
1. Uncertainty as to true boundary line
Court did not reach question because agreement not found
Barbers informed Buntons that it was their property
Could argue that if someone else uses another's land, they will be told to stop
Real estate agent made P believe they were buying the land
2. Agreement fixing the line
Court said not sufficient evidence of, but could be found because parties were good
friends
Barbers knew what Buntons were doing
CA precedent at the time stated that if there was uncertainty and acceptance and
acquiescence an agreement would be implied
3. Acceptance and acquiescence of the line for SOL OR if there are circumstances where
substantial loss would be caused by a change of its position
Buttons were using it for a really long time
Taxes
Requirement not fulfilled since land was not bordering
Similar cases could prove that tax assessor assumed party owned it
Adverse Possession of Chattels
UCC 2-403
(1) Void Title
"A purchaser of goods acquires all title which his transferor had or had power to
transfer except that a purchaser of a limited interest acquires rights only to the extent of
the interest purchased."
He who takes from the thief, gets the title of thief, mainly no title because thief has no
rights
Ex. If Williams steals something from Sherry and sells it to Elva, if Sherry comes back for
it and claims it, Sherry wins.
Ex. Snyder would only have the title that thief would haveno title
Finder can only transfer rights he had has a finder
(1) Voidable Title
"A person with voidable title has power to transfer a good title to a good faith purchaser for
value."
"When goods have been delivered under a transaction of purchase the purchaser has such
power even though
(b) "the delivery was in exchange for a check which was later dishonored"
Wholesaler has voidable title which means can pass good title to retailer despite have
paid manufacturer with a bad check
o Manufacturer cannot get Apple back, but can still obtain remedy from
wholesaler
If someone used a bad check to purchase the painting, O'Keefe could use it, but could
not obtain painting from Snyder
(d) "the delivery was procured through fraud punishable as larcenous under the criminal law "
Exception to where thief has no title
If owner of the gallery took the paintings, promised to give them back and O'Keefe
forgot about it
Frank was a good faith purchaser of value and O'Keefe would not be able to obtain
paintings
(3) Entrustment Doctrine
"Includes any delivery and any acquiescence in retention of possession regardless of any
condition expressed between the parties"
Regardless as whether procurement was larcenous under the criminal law
o Can sue the jeweler who was entrusted with the watch but sold it
o Cannot sue the person who bought the watch
o O'Keefe entrusted it to Steiglitz he somehow sold it
O'Keefe v. Snyder
1.Adverse Possession
Continuous use
SOL six years
Missing since 1946
Adversity (3 tests)
A. Intent to trespass
B. Good faith belief
C. Objective test
Adverse possessor using the property as an ordinary true owner would use it
hung it up on the wall and exhibited it

Notorious
Reason why court abolished it
What it means for a painting is problematicpublicly displayed?

2. Discovery Rule
SOL is triggered when the true owner discovers or should discover through the exercise
of reasonable diligence facts that form the cause of action (adverse possessor holds the
item)
o "If an artist diligently seeks the recovery of a lost or stolen painting, but cannot
find it or discover the identity of the possessor, the statute of limitations will not
begin to run."
Tolled if artist is trying to find the artwork
o O'Keefe did not engage in reasonable diligent efforts to find the painting
Art registry would allow for the exercise of "reasonable due diligence"stolen paintings
could be registered

3. "Demand and Refusal" Approach (NY)
SOL does not begin to run until the purchaser receives and refuses the owner's demand
to turn over the possession of the item

Eminent Domain
Forced sale by the government

Context in which the government might use it
1. Economic development
2. Public utilities
Ex. Railroads

"Public Use"
Economic development most recently used for slum clearance
Use visions of property to define vague term, "public use"
o Destroying slums is not in the common good, don't concentrate wealth
(egalitarian strain)
o Will be beneficial for the benefit of slum dwellers to destroy it
o Community life of slum dwellers will be destroyed (liberal dignity)
o If property rights are destroyed won't work as hard (liberal economic)
Kelo v. New London
Economic Development allowed for "public use"
o "Promoting economic development is a traditional and long accepted function of
government. There is, moreover, no principled way of distinguishing from the
other public purposes that we have recognized."
o Public usewhether development plan serves "public purpose"
o Deference to legislative judgments
The Court expressed unwillingness to "second-guess the City's considered
judgments about the efficacy of its development plan"
Kelo can argue city is going to give it to another corporation, but city did not know who
private party was yet
o "Nor would the City be allowed to take property under the mere pretext of a
public purpose, when its actual purpose was to bestow a private benefit."
Berman v. Parker
o You can take properties for redevelopment projects even if they themselves are
not blighted if they are part of an integrated planning process
o "The Court explained that "community redevelopment programs need
not, by force of the Constitution, be on a piecemeal basis-lot by lot,
building by building."
o New London can argue there is an integrated planning process
Midkiff
o Taking property from A from B to end the law monopoly and create a functioning
land market and rid of the land oligopoly
o "the City's development plan was not adopted 'to benefit a particular class of
identifiable individuals."
o "It only the taking's purpose, and not its mechanics, "we explained, that matters
in determining public use."
"The public end may be as well or better served through an agency of private enterprise
than through a department of governmentor so the Congress might conclude."
Kennedy concurred, stated he might say no to public purpose in the future
o "Transfers are so suspicious, or the procedures involved are so prone to abuse,
or the purported benefits are so trivial or implausible, that courts should
presume an impermissible private purpose."

99 Cents v. Lancaster Development Agency (99 Cents)
CA allows the use for ED in a narrower range of circumstances than federal law does
For public use plus the area has to be blighted
Lancaster arguing to prevent "future blight," but area became incredibly successful
o "prevention of 'future blight' is a legitimate public use under California
redevelopment law."
Clearly taking A for B
Unlike Kelo, we know who the "B" is
o "In short the very reason that Lancaster decided to condemn 99 Cents' leasehold
interest was to appease Costco. Such conduct amounts to an unconstitutional
taking for purely private purposes."
University Circle
Truly blighted, used to be the highest murder rate
7 million to over 300 million dollars that can now be taxed
Possibility that government can use ED to take land from those of modest means to a
big developer
Berman said it was okay as part of its an integrated plan

Napa
Not EDarea does not have to be blighted
Napa flood control projectliteral public use in order to protect public safety, Napa
River floods every year

Takings
When a landowner argues that because of a regulation, the government has in effect
taken property
Two types of challenges
1. Facial attackstatute is unconstitutional no matter how its' applied
2. "As applied attack"statute is constitutional, but not applied to individual P
Remedies
1. Pay just compensation
2. Strike down the law
o Temporary takings damages still have to be paid for the time during which the
regulation was in place Penn Central

Arguments for Government Arguments for Landowner/PLF
Masses have passed a law

Pennsylvania Coal
"Government could hardly go on if to
some extent values incident to
property could not be diminished
without paying for every such change
in the general law"
Justice Brandeis
Purpose can still be public even when
certain private individuals are
benefitted
Government delegated by people to
protect public
"But restriction imposed to protect the
public health, safety or morals from
dangers threatened is not a taking"
Property has always been
exercised under implied
limitations

Miller
Government will have to choose
between two classes of property
sometimes
Had to get rid of cedar trees that had
dust on it, would affect apple trees (big
industry)

Drafting Statutes
Statute should include what sticks
remain in the bundle in statute when
restricting property use
o Andrus still allowed for
possession, transport of eagle
feathers
o Penn Central allowed for a
"reasonable return" on
investment
Pennsylvania Coal
Balancing Test
o Benefits the public gains
against the burden the
landowner faces
o Burden (not being to mine coal)
greater than benefits to the
public (case of a "single private
house")
Conceptual Severance
o Defining the denominator to
where diminution in value is
zero
o Support estate is severed from
the fee simple severed
diminution in value is zero
o "the right to coal consists in
the right to mine it."
o Condition in Penn Central a
servitudevalue 0
o P in Penn Central has an
"affirmative duty"

"Why me?" Argument
If public has an important interest it
should pay for it
o "In general it is not plain that a
man's misfortunes or
necessities will justify his
shifting the damages to his
neighbor's shoulders. We are in
the danger of forgetting that a
strong public desire to improve
the public condition is not
enough to warrant achieving
the desire by a shorter cut than
the constitutional way of paying
for the change." Pennsylvania
Coal
Make the harm attempting to prevent
sound like a nuisance Lucas
o Do not assert that you are
encouraging tourism

Reciprocity of Advantage
Burden landowner faces against
benefit landowner receives
Landowner restricted, but i.e. in a
residential neighborhood everyone is
similarly restricted
o Plymouth Coal pillar of coal to
left for safety of employees
o Money lost, but collapsed coal
mine costs money as well in
form of wrongful death suits
o P benefitted by Landmarks Law
Penn Central
o Not like discriminatory zoning
400 landmarks

Diminution in Value
Whole property must be considered
Pennsylvania Coal
o "If we are to consider the value
of the coal kept in place by the
restriction, we should compare
it with the value not of the coal
alone, but with the value of the
whole property" Brandeis
o Owner's estate extends from
the "earth unto the heavens"
o Possibility of looking at all the
land the coal co. owns
"'Taking jurisprudence does not divide
a single parcel into discrete segments
and attempt to determine whether
rights in a particular segment have
been entirely abrogated." Penn
Central
o Airspace rights of P not only
going to be looked at
Hadacheck
o Rehnquist poses the question
of whether the cost of
preserving landmarks should be
borne by individual owners or
taxpayers

Reciprocity of Advantage
No benefits from other landmarks and
less than 1/10
th
of 1 percent of the
buildings bear the cost

TDR (Justice Rehnquist Penn Central)
Useless if other owners don't want to
further develop their land
Receiving area narrow (price won't be
high)
Relevant in determining "just
compensation"

Per Se Takings
1. Physical Invasion
"A permanent physical occupation
authorized by the government is a
taking without regard to the public
interests it might server and without
regard to how minor the occupation"
Loretto
2. If there is no reasonable economic use left
unless the limitation "inheres in the title itself,
in the restrictions that background principles
of the State's law of property and nuisance"
law Lucas
"Principles" have to already be
established
Not enough for a state to state a public
purpose anymore
o "South Carolina must identify
background principles of
nuisance and property law."
Example, "requiring land to be left
substantially in
Use five factors to defend degree of
harm "total taking inquiry" p. 475
o Brick factory not allowed in
neighborhood (noise and dust)
argument
o $800,000 to $60,000 decrease,
but upheld
Goldblatt
o Quarry can be shut down
despite dramatic diminution of
value
Mugler (brewery shut down during
Prohibition
"At least where an owner possesses a
full 'bundle' of property rights, the
destruction of one 'strand' of the
bundle is not a taking, because the
aggregate must be viewed in its
entirety" Andrus
Not certain to be zero since railroad
did not submit alternate plans for
lower stories Penn Central
Penn Central
No interference with present use
Quotes Nectow related to general
welfare p. 456
"Reasonably related to the general
welfare"
No set formula, "ad hoc factual
inquiries"
"Several factors that have particular
significance" See ----------------
o Economic impactstill have
reasonable investment + TDR
o Expectationsbeen used the
same way for 65 years
o Landmarks related to general
welfare
Lucas
Justice Stevens states developer might
just buy the rights to develop 20 floors
to get around a height limitation
No reasonable economic use will be
left

1. Degree of harm to public lands and
resources?
2. Social value of the claimant's
activities and suitability to locality?
3. Relative ease with which the alleged
harm can be avoided through
measures of the landowner,
government and neighbors?
4. Has particular use has been long
engaged in by similar landowners?
5. Can other landowners be permitted
to continue the use denied to P?

Lingle's Penn Central "Crystal"
"Several factors that have a
particular significance" in
determining whether a Taking
has occurred
Economic impact of the
regulation on the claimant to
the extent it's interfered with
investment backed
expectations
Character of the governmental
action
Physical invasion
Public program that adjusts
benefits and burdens of
economic life to promote the
common good

Essential Nexus Test Nollan
Degree of connection between the
exaction/dedication and projected
impact of the development (stated
goal)
Not present between the dedication of
easement from one beach to another
and goal of preserving visual access
Like Lucas, deference to economic
regulation of Carolene Products
eroding
Dedication can be a physical invasion
Per Se Takings
1. "Unaccompanied by any physical property
restriction" Andrus
Language in Loretto does not support
this, but can be used
2. Principles of nuisance law is an exception
that can eat up the rule because nuisance law
is adaptablebenefit vs. harm
"Extraordinary circumstances" when
there will be no economically
beneficial use
"Relatively rare situations" where the
government has deprived a landowner
of all economically beneficial use

Lingle
A court cannot cite Agins for the
proposition that a regulation in
unconstitutional, because it doesn't
substantially advance a state interest
Deference to economic regulation of
Carolene Products still exists
o "The reasons for deference to
legislative judgments about the
need for, and likely
effectiveness of regulatory
actions are by now will
established, and we think they
are no less applicable here"

Public's Reasonable Expectation
"it is private landowners who are the
interlopers. The public's expectation of access
considerably antedates any private
development on the coast." Brennan Dissent,
Nollan

Burden of Proof
No shift to city, but clear guidance on
what a city should do Dolan

Bundle of Sticks
Government does not have to
Loretto
o "We think a 'permanent
physical occupation' has
occurred, for purpose of that
rule, where individuals are
given a permanent and
continuous right to pass to and
fro."
"Rough Proportionality" Test Dolan
"No precise mathematical calculation is
required, but the city must make some
sort of individualized determination
that the required dedication is related
both in nature and extent to the
impact of the proposed development."
o Connection in "nature"
essential nexus
o Connection in "extent"new
component of test
Essential nexus between
bicycle/pedestrian path and increased
traffic + greenway and needed
drainage
City did not quantify its findings about
additional trips generated by increased
store
No rational for why public as opposed
to private greenway was needed
Shift in burden of proof to the city

Special Benefits
Not adopted, but good argument
If city conferred no special benefits on
landowner would be a taking

Bundle of Sticks
"The right to exclude others is the
most essential sticks in the bundle of
rights that are commonly characterized
as property" Dolan

Ehrlich
Both Nollan and Dolan apply to
guarantee a right to profit".the
simple prohibition of the sale of
lawfully acquired property in this case
does not effect a taking." Andrus
Other sticks remain in the bundle
"In this case, it is crucial that appellees
retain the rights to possess and
transport their property, and to donate
or devise the protected birds"

Ehrlich
"Thus, the fact that a recreational
facility is privately rather than publicly
owned does not erase its value to the
public"
Destruction of private facility
possibility of still having to pay an
exaction
o "This is not to say, however,
that some type of recreational
fee imposed by the city as a
condition of the zoning and
related changes cannot be
justified"
o "The amount of such a fee,
however, must be tied more
closely to the actual impact of
the land use change the city
granted P"
City can prove by looking at contracts
value of property when it was tore
down and number of people using it



monetary exactions
Heightened standard of scrutiny
triggered when monetary exaction
applied to an individual on a
discretionary basis



Exactions and Dedications
Exactionsdeveloper's fees, subdivision developers required to contribute funds rather
than build necessary facilities
Dedicationsinstead of $, property interest, i.e. fee simple, easement
Procedure

What does a landowner have to do before allowed in federal court?
Plaintiff's case has to be "ripe and ready for review" before going into federal court or
will be thrown out on a motion to dismiss
o Remedies in state court have to be exhausted
1. You have to submit a development plan to the city
Agins
o Developer was upset with restriction that development had to be clustered
o P in Penn Central did not submit alternate plans
2. Litigate up through state's Supreme Court
San Diego
o CA Supreme Court never determined whether taking had occurred
3. Seek a variance (waiver with planning rules)
P in Lucas never applied for a special permit, but option was added after Lucas filed his
case
Waiver of compliance with planning rules zoning in general valid, not in plaintiff's
individual case
Williamson County
o Agins threshold was passed by submitting a development plan, but didn't seek variance
or damages in state court
4. Must negotiate in good faith with planning officials
Yolo County
o Developer wanted to build a subdivision in cornfield, rejected on the ground of a lack of
infrastructure to support it
o Needed to proceed further in discussion with planning officials
P's Remedies in Penn Central
1. Certificate of No Effect
If you're in front of the building, you won't see the office story building and the faade is
still preserved
Denied to P
2. Certificate of Appropriateness
Stating it's inappropriate
Denied to P
3. Economic Hardship
Similar to a variance
Diminution of value too muchfinancial wipeout
Title Insurance
Required by mortgage companies, good idea to have even if you buy your house with all
cash
Preliminary report states whether title company will insure and on what terms and
conditions
Exclusions are standard and apply to all properties
Schedule A states name, estate being insures, policy premium amount, policy limit and
description of property
Schedule B lists exceptions to coverage relevant to particular property
Guarantees a fee simple
Includes exceptions such as zoning changes, defects not shown by public records and
problems that were created by the insured party
o Clouds on title shown by public records
i.e. easement
Only applies to defects that already existed at the time is assigned and to the person
who buys it
Endorsementsexpand coverage
o Lawyers will negotiate with the title company to assume risks developer wants
them to
o Large real estate practices have bargaining power
After agreement to ensure, the escrow company will be told to release the funds
Purchase and Sale Agreement
Promise to buy, actually buy in closing
Escrow
Putting something in escrow means putting funds with a trusted third party, their
interest is having the deal go through
Without escrow, you hand the seller the deposit money, contingencies where you can
get that money back
o Escrow agent will be aware of these contingencies