Contents

1) Basic Concepts ...................................................................................................................................... 1

a) Terms ................................................................................................................................................ 1
b) Four Important rights........................................................................................................................ 1
c) Five theories of property law ............................................................................................................ 2
d) General principles ............................................................................................................................. 2
2) Owning Real Property ........................................................................................................................... 2
a) Adverse Possession ........................................................................................................................... 2
b) Airspace Rights .................................................................................................................................. 3
c) Subsurface Rights .............................................................................................................................. 3
d) Water Rights ..................................................................................................................................... 3
3) Owning Personal Property .................................................................................................................... 3
a) Ways to acquire rights in chattels..................................................................................................... 3
b) Capture.............................................................................................................................................. 3
c) Find.................................................................................................................................................... 4
d) Adverse Possession ........................................................................................................................... 5
e) Gift .................................................................................................................................................... 5
4) Intellectual Property ............................................................................................................................. 5
a) General Notes ................................................................................................................................... 5
b) Copyrights ......................................................................................................................................... 6
c) Patents .............................................................................................................................................. 7
d) Trademarks ....................................................................................................................................... 7
5) Estates and Future Interests ................................................................................................................. 8
a) Six types of freehold estates ............................................................................................................. 8
b) Ways to Transfer estates/future interests ........................................................................................ 9
c) Fee Simple ......................................................................................................................................... 9
d) Life Estate .......................................................................................................................................... 9
e) Fee Tail .............................................................................................................................................. 9
f) Fee Simple Defeasible ....................................................................................................................... 9
g) Freehold Estate Summary ............................................................................................................... 10
h) Modern Future Interests................................................................................................................. 10
i) Marketability Doctrines .................................................................................................................. 11
6) Concurrent Ownership and Marital Property ..................................................................................... 12
a) Types ............................................................................................................................................... 12
b) Ambiguous Language ...................................................................................................................... 13
c) Severance ........................................................................................................................................ 13
d) Partition – If cotenants cannot agree on how to use land, they can partition ............................... 13
e) Cotenant Rights/Duties ................................................................................................................... 13
f) Marital Property.............................................................................................................................. 13
g) Unmarried Couples ......................................................................................................................... 14
7) Leasing Real Property.......................................................................................................................... 14
a) Federal Fair Housing Act – Unlawful to........................................................................................... 14
b) Proving Discrimination .................................................................................................................... 15
c) Types of Nonfreehold Estates ......................................................................................................... 15
d) Leases longer than one year must be express agreements in writing. Needs to have following: . 15
e) Two different rules of tenancy (Keydata Corp v United States) ..................................................... 15
f) Condition of the Premises ............................................................................................................... 16
g) Transferring Tenants Interest ......................................................................................................... 16
h) Transfer Rules ................................................................................................................................. 17
i) Ending the Tenancy ......................................................................................................................... 17
j) Eviction (Hillview Associates v Bloomquist) .................................................................................... 18
8) Selling Real Estate ............................................................................................................................... 18
a) Purchase Contract ........................................................................................................................... 18
b) Closing ............................................................................................................................................. 19
c) Title Protection ............................................................................................................................... 20
9) Private Land Use Planning................................................................................................................... 22
a) Easements ....................................................................................................................................... 22
b) Interpreting Easements................................................................................................................... 23
c) Terminating Easements (Preseault v US – Rails to trails) ............................................................... 24
d) Negative Easement ......................................................................................................................... 24
e) Land Use Restrictions ...................................................................................................................... 24
f) Common Interest Communities ...................................................................................................... 25
g) Nuisance .......................................................................................................................................... 26
10) Land Use Regulation ....................................................................................................................... 27
a) Basics of Zoning............................................................................................................................... 27
 b) Nonconforming Use ........................................................................................................................ 27
c) Zoning Amendments ....................................................................................................................... 28
11) Environmental Law ......................................................................................................................... 29
a) General idea .................................................................................................................................... 29
b) Water & Wetlands .......................................................................................................................... 29
c) Land Surface .................................................................................................................................... 29
d) Atmosphere .................................................................................................................................... 30
12) Eminent Domain ............................................................................................................................. 30
a) Takings Clause ................................................................................................................................. 30
b) Public Use ........................................................................................................................................ 30
c) Just Compensation Limits: Doesn’t usually include ........................................................................ 30
13) Takings ............................................................................................................................................ 30
a) Early Doctrines ................................................................................................................................ 30
b) Goes Too Far ................................................................................................................................... 30
c) Penn Central Standard .................................................................................................................... 31
d) Categorical Tests ............................................................................................................................. 31
1) Basic Concepts
a) Terms
i) Trover – Common law action where P seeks damage for wrongful taking of personal
property
ii) Replevin – Lawsuit to recover possession of personal property
iii) Bailor – Person who delivers chattel
iv) Bailee – Person who receives chattel
v) Transferor – Side which initiated transfer
vi) Transferee – Recipient of the transfer
vii) Grantor – Person making transfer
viii) Grantee – Recipient of Grant
ix) Devise – Transfer of property by will
x) Escheat – Reversion of property to some other owner (usually the state)
xi) Lessor – Person who leases property (the landlord)
xii) Lessee – Person who rents the property (the tenant)
xiii) Mortgagor – Borrower
xiv) Mortgagee – Lender
xv) Dominant Tenement/Dominant Land – Land benefited by easement
xvi) Servient Tenement/Servient Land – Land burdened by easement
xvii) Appurtenant Easement – Benefits holder in her use of specific parcel of land
xviii) Easement in Gross – Not connected to holder’s use of any particular land
xix) License – Informal permission that allows holder to use land of another for particular
purpose
xx) Holographic will – Handwritten will. Only about half of states allow holographic wills.

b) Four Important rights

i) Right to Transfer (Alienation)
ii) Right to Exclude
(1) White v Samsung – Outer boundaries of property rights. Common law right different
than statutory right. Statutory claim only based upon actual likeness, but common law
right of publicity is much more broad and just needs to invoke celebrity’s identity
(2) Intentional trespass causes damage even if no property damage. – Jacque v Steenberg
Homes (Trespassing mobile home delivery)
(3) BUT, State v Shack (trespassing migrant worker helper) farmworkers have dignity and
there’s a balancing act between rights of those who are invited onto land and the owner
of property. “Property rights serve human values. They are recognized to that end, and
are limited by it.”
iii) Right to Use
(1) Limited by nuisance (non-trespassory invasion that is unreasonable).
(a) Spite fences are a nuisance (Sundowner, Inc v King)
(b) Blocking access to sun can be unreasonable – shows that what was once reasonable
can now be unreasonable. Prah v Maretti
iv) Right to Destroy

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 (1) Much stronger while alive than dead. Destruction of property will be prevented when
destruction violates public policy, interferes with property rights of others, and is a
nuisance Eyerman v Mercantile Trust Co
(2) Against Public Policy – Conflicts w/ morals of time and contravenes established interest
of society. Look to Constitutions, statutes, and judicial decisions.

c) Five theories of property law

i) Protects First Possession
ii) Encourage Labor
iii) Maximize Societal Happiness (Utilitarian theory)
iv) Ensure Democracy
v) Facilitate Personal Development (ppl get attached to things – emotional bond)

d) General principles
i) First possession: Pierson v Post – Fox hunt. Ownership only upon ensnare, wound, capture.
Pursuit not enough.
ii) Source of Rights – Property rights from gov’t. Not inherent. Johnson v M’Intosh.
iii) Moore v Regents of Univ. of Ca. - Don’t own rights to cells after taken. Maybe allow lack of
informed consent, but not conversion and not abandonment (which requires knowing giving
up).

2) Owning Real Property

a) Adverse Possession
i) Five Requirements
(1) Actual – Defined by nature and location of property.
(a) “Protected by a substantial enclosure” or “usually cultivated or improved” (Van
Valkenburgh v Lutz)
(2) Exclusive
(3) Open and Notorious
(4) Adverse and Hostile
(a) Under claim of right
(b) Some states require that the possessor believe in good faith that she is owner. Some
states require bad faith. Most states say state of mind is irrelevant.
(5) Continuous for statutory period
(a) Tacking – Ability to use previous possessor’s time as your own. Occurs when
previous possessor conveys possession to you as if they had actually owned it. Their
adverse possession is credited to you.
(b) Succession of trespass not enough
(c) Disabilities – Imprisonment, minority, and lack of mental capacity can toll time
period. Most states require you to bring suit within 5 years of disability ending.
ii) Color of Title – Appears to have title to land, but because of some defect, they don’t actually
have title to the land. You also gain possession of the entire tract, not just the tract that you
actually use.
iii) Reasons for Adverse possession

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 (1) Encourage Development of Land
(2) Clear up Title Defects
(3) Preventing Frivolous Claims – Acts as statute of limitations for recovering possession of
land

b) Airspace Rights
i) Person has rights to airspace immediately above property (usually 500 ft). Low flying planes
can count as taking (US v Causby). Damages based upon diminution of property value.

c) Subsurface Rights
i) Subsurface rights are limited. Test for violation (Chance v BP Chemicals)
(1) Must interfere with reasonable and foreseeable use of subsurface
(2) If it interferes with reasonable and foreseeable use of surface
ii) Doesn’t matter if person isn’t currently planning to use subsurface. If it’s foreseeable it’s
trespass.
iii) To show direct invasion there must be actual damage

d) Water Rights
i) Three approaches to surface water
(1) Riparian System – Rights go to each landowner whose property adjoins a watercourse.
Generally has reasonable use doctrine.
(2) Prior Appropriation – Whoever used it beneficially first
(3) Permit System – Must get permit from gov’t
ii) Three approaches to Groundwater
(1) Reasonable Use Approach – Surface owner may use groundwater only for reasonable
use on underlying land
(2) Correlative Rights – Surface owner is entitled to proportional share of the groundwater
beneath his land
(3) Permit System
iii) In TX, unless there’s willful waste or malice landowner can pump as much water as it wants
(Sipriano v Great Spring Waters)

3) Owning Personal Property

a) Ways to acquire rights in chattels
i) Capture
ii) Find
iii) Adverse Possession
iv) Gift

b) Capture
i) For wild animals, if they’re fit for food and dead or reclaimed or confined then larceny can
be committed of them. Absolute security is not required, but reasonable steps to keep them
confined must be taken (State v Shaw)
ii) Person who takes “significant but incomplete steps to achieve possession of a piece of
abandoned personal property” but is interrupted by unlawful activity against a pre-

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 possessory interest in property which grants person qualified right to possession. (Popov v
Hayashi)

c) Find
i) Four ways to categories found chattels
(1) Lost Property – Owner unintentionally and involuntarily parts with it. Lost chattel
belongs to finder.
(2) Mislaid Property – Voluntarily and knowingly places it somewhere, but then
unintentionally forgets. Mislaid chattel belongs to owner of the locus in quo, not the
finder.
(3) Abandoned Property – Knowingly relinquishes all right, title, and interest to it. First
person to find it gets ownership of it.
(4) Treasure Trove – Property where owner concealed it in a hidden location long ago.
Usually limited to gold, silver, coins, or currency.
ii) If original property owner comes back and finder sold it, original property owner can sue
seller for money.
iii) Landowner owns everything attached to or under his land, but not necessarily things lying
unattached on surface (Hannah v Peel).
(1) Banknotes found in public space of store don’t belong to store owner (Bridges v
Hawkesworth) BUT pocket-book on table of barber shop does not belong to finder
(McAvoy v Medina). Difference between property placed by owner and neglected to be
removed and property lost.
(2) Rings embedded in mud belong to property owner, not finder (South Staffordshire
Water co v Sharman)
(3) Even if landowner leases land and lessees find historic boat embedded in soil the boat
still belongs to landowner (Elwes v Brigg Gas)
iv) Bailments – Finder is considered a bailee
(1) Bailee has two obligations
(a) Keep chattel safe
(b) Return it to prior possessor on demand
(2) Three types of bailments
(a) Those for mutual benefit of both bailor and bailee – Reasonable standard of care
(b) Those for primary benefit of bailee – Extraordinary care (return in same condition
you retrieved it)
(c) Those for primary benefit of bailor – Only liable if property is damages b/c of gross
negligence or bad faith
v) If labor/expense expended to increase value of relatively worthless property, reasonable
time (24hr) must elapse before other can take that property. Only after reasonable time is
property considered abandoned.
vi) Statutory Solutions – 1/3 of states have lost property statute that generally has
requirements for finder, after which (6-12mo) title irrevocably vested in finder
(1) Notify police/other gov’t official
(2) Deposit found article with them
(3) Publish notice of find

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 d) Adverse Possession
i) Same as real property except statutory time period usually much shorter
ii) Thief could maintain right, so good faith isn’t required, but thief can’t transfer title to good
faith purchaser until thief obtains title via adverse possession
iii) UCC §2-403 (transferring property) – Purchaser gets only the title that the seller had, but
person with voidable title can transfer good title to good faith purchaser for value even if
(1) transferor was deceived as to identity of purchaser
(2) Delivery was in exchange for check that is later dishonored
(3) It was agreed that transaction was to be a “cash sale”
(4) Delivery was procured through fraud punishable as larcenous under criminal law
iv) UCC §2-403 – Entrusting property to merchant who deals in goods of that kind gives him
power to transfer all rights to buyer in ordinary course of business.

e) Gift
i) Requirements
(1) Donative Intent – Donor must intend to make an immediate transfer of property
(2) Delivery – Property must be delivered to the donee, so that donor parts with dominion
and control
(a) Manual delivery preferred, but if impossible or impractical constructive delivery is
acceptable. Delivery can also be made by giving gift to third party who will deliver it
to recipient
(b) Gifts of remainders can be given such that person giving gift keeps life estate. In this
case delivery can be symbolic (Gruen v Gruen)
(3) Acceptance – Donee must accept the property, although acceptance of valuable items is
usually presumed
ii) General Gift Rules
(1) Gifts are NOT contracts
(2) With the exception of gifts causa mortis, gifts are non-revocable
(3) Testamentary Requirements for Will – In writing, witnessed by two people
(4) Checks aren’t gifts until check is actually honored
(5) Most states treat wedding rings as conditional gifts, where if engagement ends man gets
ring back. Montana does not, however (Albinger v Harris)
iii) Gift Causa Mortis
(1) Same as for gifts except must also be made in donor’s anticipation of imminent death
(2) Is revocable and in most states is revoked automatically if donor does not die
(3) In most states gift still effective even if donor doesn’t die from contemplated peril if
(a) Death occurs within same approximate time frame
(b) Cause of death is related to the anticipated peril

4) Intellectual Property
a) General Notes
i) Intellectual property is based upon a first-in-time system for allocating. There isn’t much
common law with respect to intellectual property. Courts appear unwilling to create
intellectual property rights without statutory backing (Cheney Brothers v Doris Silk Corp)

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 ii) Courts unwilling to create common law right, so legislature had to create intellectual
property rights. Cheney Brothers v Doris Silk Corp
iii) Article 1, §8 – “promote the Progress of Science and the useful Arts, by securing for limited
Times to Authors and Inventors the exclusive right to their respective Writings and
Discoveries”

b) Copyrights
i) Current law is life plus 70 years for writers. For employers it’s 98 years from date of first
publication or 120 years from date of creation.
(1) This counts as “limited” for purposes of the Constitution – Eldred v Ashcroft
ii) Three requirements for Copyright (17 USC §102(a))
(1) Originality – Not copied from another source. Must possess at least a minimal degree of
creativity
(2) Work of Authorship – Eight categories of “works of authorship” are recognized by
statute
(a) Literary Works (including computer programs)
(b) Musical Works
(c) Dramatic Works
(d) Pantomimes and Choreographic Works
(e) Pictorial, graphic, and sculptural Works
(f) Motion pictures and other audiovisual Works
(g) Sound records
(h) Architectural Works
(3) Fixation – Work must be written, recorded, or otherwise embodied in some physical
form. It must be “sufficiently permanent or stable to permit it to be perceived,
reproduced, or otherwise communicated for a period of more than transitory duration.”
iii) Originality – Feist Publications v Rural Telephone Service
(1) Facts cannot be copyrighted
(2) Compilations are generally copyrightable (because selection involves creativity)
(3) At least some modicum of originality is required in compilation
(4) Ideas are not copyrightable, but manner in which idea is expressed
iv) Defense – Fair Use (17 USC §107)
(1) For purposes such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research is not an infringement. Factors for
determining are:
(a) Purpose/character of use (including whether such use is of a commercial nature or
is for nonprofit educational purposes)
(b) Nature of the copyrighted work
(c) Amount and substantiality of the portion used in relation to the copyrighted work as
a whole
(d) Effect of the use upon the potential market for or value of the copyrighted work
(2) Quantity doesn’t matter. “Heart of memoir” of 300 words out of 200k is infringement –
Harper & Row v Nation Enterprises
(3) Parodies are generally considered fair use as long as it’s not a pure copy but adds
commentary or humorous spin

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 v) Infringement
(1) Plaintiff must prove
(a) P owns valid copyright
(b) D actually copied P’s work
(c) Ordinary observer would conclude that D’s work was substantially similar
(2) Note: D’s knowledge and intent are irrelevant
(3) Direct evidence of copying rarely available, so P can rely upon circumstantial evidence to
prove element. One way is proof of access. Without proof of access, they can rely upon
an inference of access based upon similarity (Selle v Gibb)
(a) To show songs are “strikingly similar” must show that “they are the sort of
similarities that cannot be satisfactorily be accounted for by a theory of coincidence,
independent creation, prior common source, or any theory other than that of
copying”

c) Patents
i) Five elements of patent
(1) Patentable subject matter – process, machine, manufacturer or composition of matter
(2) Utility – Must be useful
(3) Novelty – Only new inventions may be patented
(4) Nonobviousness – If differences b/w invention and prior art at time of invention “would
have been obvious . . . to a person having ordinary skill” in that area the PTO will deny
(5) Enablement – Application must describe invention in such detail as to “enable any
person skilled in the art to which it pertains . . . to make and use the same”
ii) Current term is 20 years from date the application is filed with US Patent and Trademark
Office
iii) Discovery of things in nature cannot be patented, but creation of a new bacteria
substantially different from that found in nature is product of man’s ingenuity and can be
patented – Diamond v Chakrabarty
iv) Animals that are too close to humans can’t be patented because of the 13th Amendment,
but otherwise genetically engineered animals are patentable
v) Patent Infringement (Larami Corp v Amron)
(1) Two ways to show infringement
(a) Literal infringement (where all claims are literally infringed) – Look at each claim and
look at new product and see if claims overlap 100% with new product
(b) Doctrine of Equivalents – Patent owner must show that the new product “performs
substantially the same overall function or work, in substantially the same way, to
obtain substantially the same overall result”
(2) There is no fair use doctrine for patent law

d) Trademarks
i) You can trademark a word, name, symbol, or device that’s used to identify and distinguish
the goods sold by one person from those of others
(1) A device can be a physical manifestation of the mark – e.g., the Coke bottle shape

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 ii) Geographic area is where you sell your product. If you register a trademark you get national
scope, but if someone else is using the mark in a different area that wouldn’t necessarily
strip them of that mark
iii) Three elements of trademark usage
(1) First use in trade – First person to use a mark for good/services in a market obtains
rights to use the mark in that market
(a) Note: Lanham Act requires first use in “commerce” which is narrower than “trade”
(2) Distinctiveness – Must distinguish the goods/services of one person from those offered
by another person
(3) Non-Functionality – Does not protect a feature that is function, b/c that area is covered
by patent law. Feature is functional if it is vital to the use/purpose of the article.
iv) Color can be patented if it has developed a secondary meaning (a feature that has, as its
“primary significance” is to “identify the source of product rather than the product itself”
(Qualitex v Jacobson Products)
(1) Goal of trademark law is to “encourage the production of quality products” so basic
purpose of trademark is to be a “source-distinguishing ability”
v) Hierarchy of Trademarks
(1) Arbitrary/Fanciful – Name/slogan has nothing to do with product (e.g., Exxon)
(2) Suggestive Mark – Suggests information about good/service (e.g., “Roach motel” for
insect trap)
(3) Descriptive Mark – Merely describes the good/service (e.g., “Coca-Cola” because it was
made of Coca leaves and kola nuts)
vi) Descriptive mark isn’t protected unless it acquires a secondary meaning. Public must
associate mark with a particular good or service.
vii) To show infringement P must show
(1) She holds valid/enforceable mark with priority over D’s claim to mark
(2) D used mark in connection with goods/services in manner likely to deceive/confuse
consumers
viii) Tension between first amendment and trademark. Lanham Act should only apply to artistic
works when public interest in avoiding consumer confusion outweighs interest in free
speech
(1) Barbie Girl song may be dilutive (blurs/tarnishes P’s famous mark), but falls under one of
three exemptions
(a) Comparative Advertising
(b) News reporting and commentary
(c) Noncommercial use
(2) Barbie Girl song noncommercial because it wasn’t proposing a commercial transaction

5) Estates and Future Interests

a) Six types of freehold estates
i) Fee simple absolute – Holder has all bundle of rights with infinite duration
ii) Life estate
iii) Fee tail – Property automatically transfers to next child. Property stays in family’s name.
Land goes back to grantor or his heirs if the family died off

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 iv) Fee simple defeasible
(1) Fee simple determinable – When certain condition occurs property reverts back to
original owner
(2) Fee simple subject to a condition subsequent – If condition occurs then transferor has
power to terminate estate. Same as fee simple determinable, but it’s not automatic
(3) Fee simple subject to an executory limitation – Also known as fee simple on executory
limitation. Fee simple estate followed by future interest in another transferee. The
reversion right/remainder doesn’t go back to original owner but goes to 3rd party

b) Ways to Transfer estates/future interests

i) Transfer by deed – Called a conveyance/Grant.
ii) Transfer by Will – Devise.
iii) Transfer by intestate succession – Descend. Recipient is heir. Start with spouse and kids,
common rule is 50% to spouse and 50% to kids.
(1) Then look to relatives and keep trying. If none found it escheats to state.

c) Fee Simple
i) Default in most states. Originally had to say “and his/her heirs” or it was life estate.
ii) In some states “and assigns forever” isn’t good enough, so doesn’t create fee simple. Cole v
Steinlauf.

d) Life Estate
i) Measured by lifetime of particular person.
ii)Pur autre vie – Measured by life of another
iii)
Cannot give life estate to partnerships, corporations, or similar business entities.
iv)Some states have statutory presumption against partial intestacy so ambiguous language
will be construed as fee simple and not life estate. White v. Brown.
(1) As matter of law cannot prevent property from being sold.
v) Waste – When person either doesn’t maintain property or does something to decrease
value of property
(1) Ohio: Waste must cause “substantial pecuniary damage” and “mere alteration of
demised premises which renders them unfit for former use w/o decreasing general
value” is not waste. Woodrick v Wood
(2) Common Law: Anything that altered identity of land

e) Fee Tail
i) Only four states: Delaware, Maine, Massachusetts, Rhode Island
ii) Magic language: “the heirs of his body” -> “the heirs” would be fee simple
iii) Holder of fee tail only has limited right to transfer estate.
iv) If state doesn’t allow fee tail then attempted conveyance would just become fee simple

f) Fee Simple Defeasible

i) After creation owner can also sell future interest
ii) Right of entry (power of termination)
(1) If property goes back to original owner the right is called reversion
(2) If property goes to 3rd party then 3rd party owns remainder

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 iii) Generally if language is unclear courts construe as fee simple subject to a condition
subsequent as opposed to fee simple determinable
iv) If land is condemned, money goes to person using property not person who owns right of
reversion
v) Cannot use adverse possession to gain rights until grantor claims right of reversion, but
grantor only has reasonable time to declare forfeiture otherwise power expires
(Metropolitan Park District v Unknown Heirs of Rigney)
(1) In most jurisdictions, time period is less than that of adverse possession

g) Freehold Estate Summary

Language Estate Type Rights Notes
To Ann and her Fee Simple Alienable Ambiguity is
heirs Devisable resolved in favor of a
To Ann in fee Descendible Fee Simple
simple
To Ann
To Ann as long as Fee Simple Alienable Not subject to waste
To Ann while Determinable Devisable
To Ann until Descendible
To Ann during
To Ann, provided Fee Simple Subject Alienable When ambiguity
that to a Condition Devisable exists, preferred
To Ann, but if Subsequent Descendible over Fee Simple
To Ann, on Determinable
condition that
Not subject to waste
To Ann, as long as, Fee Simple Subject Alienable Future interests in a
while, until, during, to an Executory Devisable third party follows
provided that, but Limitation Descendible the estate
if, on condition
that. . . Then to Bob Not subject to waste
To Ann and the Fee Tail Alienable May only alienate
heirs of her body NOT devisable right to possession
Descendible until death
Descends only to
lineal descendants
To Ann for life Life Estate Alienable Subject to Waste
To Ann until she Not Devisable
dies Not Descendible When conveyed to
another, becomes LE
pur autre vie
To Ann for 20 years Term of Years Alienable Subject to Waste
Devisable
Descendible
h) Modern Future Interests
i) Future interests retained by transferor

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 (1) Reversion – Future interest remaining in transferor when she grants vested estate of
lesser quantum. Basically what’s left after transferring some portion
(2) Possibility of reverter – Future interest retained by transferor who holds a fee simple
absolute, but conveys a fee simple determinable
(3) Right of entry – Future interest retained by transferor who holds a fee simple absolute,
but conveys a see simple subject to a condition subsequent
ii) Future interests created in a transferee
(1) Remainders – Future interest in a transferee that (1) is capable of becoming possessory
immediately upon expiration of prior estate and (2) does not divest (or cut short) any
interest in a prior transferee
(a) Indefeasibly Vested Remainder – Remainder is vested if it is (1) created in an
ascertainable person and (2) not subject to a condition precedent other than natural
termination of prior estate
(i) Unborn children are NOT ascertainable
(b) Vested Remainder subject to divestment – Remainder that is vested, but is subject
to a condition subsequent. (e.g. “To B for life, then to D, but if D does not survive B,
then to E” where D has vested remainder subject to divestment)
(c) Vested remainder subject to open – Vested remainder held by one or more living
members of a group or class that may be enlarged in future (e.g., “To be for life,
then to D’s children” assuming D has 2 children but may have future children)
(d) Contingent Remainder – If a remainder is not vested then it is contingent. It is either
(1) given to unascertainable person or (2) subject to a condition precedent (e.g. “To
B for life, then to heirs of D” or “To B for life, then to D if D becomes president”)
(2) Executory Interest – Future interest in a transferee that must divest another estate or
interest to become possessory. Exact opposite of a remainder.

i) Marketability Doctrines
i) Rule in Shelley’s Case –
(1) Applies if four requirements are met
(a) One instrument
(b) Creates a freehold estate in a transferee, and
(c) A remainder in that transferee’s heirs
(d) Both interests are legal or both equitable
(2) “To B for life, then to B’s heirs”
(3) B would hold life estate and remainder, so two interests merge and B holds fee simple
absolute
ii) Doctrine of Worthier Title
(1) Applies when a conveyance creates a remainder or executory interest in the grantor’s
heirs (E.g. “To G for life, then to O’s heirs” – Ordinarily creates a remainder in grantor’s
heirs (O’s heirs) but the future interest in O’s heirs becomes a future interest in O)
iii) Doctrine of Destructibility of Contingent Remainders
(1) Doctrine applies when a contingent remainder does not vest before preceding freehold
estate (typically life estate) ends

11
 (2) If holder of remainder cannot take possession immediately at expiration of preceding
estate than the contingent remainder is destroyed forever. In effect it terminates
remainders that might vest too far into the future.
iv) Rule Against Perpetuities
(1) Classic formulation: No interest is good unless it must vest, if at all, no later than 21
years after some life in being at the creation of the interest
(2) Only applies to three interests
(a) Contingent Remainders
(b) Executory Interests
(c) Vested remainders subject to open
(3) Steps that might help
(a) Identify contingent interest
(b) List lives in being
(c) Consider whether anyone can be born who might affect vesting
(d) Kill off lives in being at some future date and add 21 years
(e) Ask “Is there any possibility that contingent interest will vest after this point
(i) If yes, then it is void. If not it is valid
(4) Some modern reforms
(a) Wait and see: Interest is void if it ACTUALLY does not vest within “a life in being plus
21 years”
(b) Uniform Statutory Rule Against Perpetuities : Interest is valid if it satisfies common
law rule or if it actually vests within 90 years after creation
(c) Courts rewrite language so future interest no longer violates common law rule to
honor transferor’s presumed original intent
(d) Many states no authorize perpetual trusts

6) Concurrent Ownership and Marital Property

a) Types
i) Tenancy in Common – Each person has undivided fractional interest in the property. Each
may transfer his interest to another person. Freely alienable, devisable, and descendible
ii) Joint Tenancy – Undivided right to use/possess whole property. Each joint tenant has right
of survivorship, so when A dies B automatically gets A’s share. Joint tenancy is neither
devisable nor descendible. If one party transfers his share then that severs joint tenancy and
it becomes tenancy in common
(1) Four unities must be present:
(a) Time: All tenants acquire interest at same time
(b) Title: All acquire title through same instrument
(c) Interest: Must possess same share in estate
(d) Possession: They must have equal right to possess and enjoy whole property (same
as tenancy in common)
iii) Tenancy by the entirety – Only held by married couples. Same rules as joint tenancy w/ add’l
req of unity of marriage. Can only be severed by marriage, divorce, or agreement of both
spouses. In most states tenancy by entirety can partially shield assets from creditors.

12
b) Ambiguous Language
i) If language is ambiguous and doesn’t explicitly mention creating right of survivorship court
will probably create tenancy in common (James v Taylor)

c) Severance
i) Joint tenant can end tenancy by conveying her interest to third party. They then become
tenants in common
ii) Lease does not sever joint tenancy in most states, and once lessor dies it can void the lease
because interest that was being leased ceases and goes to other joint tenant(s).
iii) Mortgages may sever depending upon type of mortgage
(1) Title theory states – Transfer of title to mortgage company, destroys joint tenancy
(2) Lien Theory – Mortgage is just lien on title, does not destroy joint tenancy, but SOME
states still say it destroys.
iv) Secret severance – Can occur in some states, but a few require deed that effects severance
to be recorded.

d) Partition – If cotenants cannot agree on how to use land, they can partition
i) Partition-in-kind: Split up land relative to proportion
ii) Sell: Sell land and distribute proceeds
iii) Selling most common, but a party desiring to compel partition by selling is req’d to
demonstrate that
(1) Property cannot be conveniently partitioned in kind
(2) Interests of one or more parties will be promoted by sale
(3) Interests of other parties will not be prejudiced by sale
(4) Note: This is a balancing test as in almost all cases at least one party will be partially
prejudiced.

e) Cotenant Rights/Duties
i) In normal circumstances, if property is sold and one cotenant has paid more than their fair
share then other cotenant has to pay up to that share out of the proceeds of sale, then they
get pro rata share.
ii) In normal circumstances, if one cotenant lives in property and other doesn’t then occupying
tenant doesn’t have to pay for value of their rental as both have right to occupy so if one
voluntarily doesn’t occupy that doesn’t obligate them to get credit for rental value
(1) If a person wants to receive a greater share then crediting for rental value is appropriate

f) Marital Property
i) Two systems
(1) Community Property – All earnings during marriage owned by both spouses equally.
Marriage is a partnership so even if person purchase land in his own name they both
own it together
(a) Divorce: All community property is divided b/w spouses. In some states it’s an equal
share and in others it’s allocated using equitable distribution factors
(b) Death: Decedent may only devise her half, other half belongs to surviving spouse

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 (2) Separate Property – Property is separately owned by spouse who acquires it. Credits of
particular spouse can only attach separate property of that spouse.
(a) Divorce: Requires equitable distribution. Court is supposed to divide property “in a
just and fair manner”
(b) Death: Most states offer a forced share (or elective share) of decedent’s estate.
Survivor has choice:
(i) Take under decedent’s will
(ii) Receive a defined portion of decedents estate, usually 1/3 or 1/2 share
ii) Tenancy by the Entirety – Whether interest of one spouse, held in tenancy by entirety, is
subject to levy and execution by his individual creditors is handled in four different ways
(Sawada v Endo)
(1) Group I (MA, NI, NC) – Property may not be subject to levy during marriage for separate
debts of either spouse, but in MA estate can be subject to levy by husband’s creditors
(2) Group II (AK, AR, NJ, NY, OR) – With exception of AK, interest of debtor spouse in estate
may be sold/levied upon for his/her separate debts. P would become joint tenants and
own up to share of debtor spouse. With AK a homestead cannot be levied but other
property can.
(3) Group III (DE, DC, FL, IN, MD, MS, PA, RI, VT, VA, HI) – Attempted conveyance by either
spouse is wholly void, and estate may not be subjected to the separate debts of one
spouse only
(4) Group IV (KY, TN) – Contingent right of survivorship is alienable and attachable by his
creditors during marriage. Use and profits may neither be alienated nor attached during
coverture. Creditor, thus, wouldn’t get anything out of it until debtor spouse died.
iii) Defining Marital Property
(1) Degree isn’t marital property, but practice (that requires degree) is an asset. (Guy v Guy)
(2) Premarital agreements – Generally enforceable unless
(a) Party did not sign it voluntarily
(b) Agreement was unconscionable when made,
(c) Party did not receive “fair and reasonable disclosure” from other party, did not
expressly waive the right to receive such disclosure, and could not reasonably have
learned the relevant information.

g) Unmarried Couples
i) For cohabitating couple, to have claim against estate you need to show that a promise was
made and that the terms were fully contemplated. (In re Estate of Roccamonte). Most states
require a contract to be in writing.

7) Leasing Real Property

a) Federal Fair Housing Act – Unlawful to
i) Refuse to sell/rent because of race, color, religion, sex, familial status, or national origin
ii) To discriminate against any person in terms/conditions/privileges of sale/rental of dwelling
b/c of race, color, religion, sex, familiar status, or national origin
iii) TO make/print/public or cause to be made/printed/published any notice/statement/ad that
indicates preference, limitation, or discrimination based on race, color, religion, handicap,

14
 familial status, or national origin (or an intention to make any such preference, limitation, or
discrimination)
iv) To discriminate in sale/rental because of handicap of buyer/renter. Discrimination includes
refusal to permit, at expense of handicapped person, reasonable modifications of existing
premises
v) Exception for people looking for roommates. They’re allowed to discriminate

b) Proving Discrimination
i) Neithamer v Brenneman Property Services
ii) To establish prima facie case of discrimination, must show
(1) Member of protected class and D knew or suspected he was
(2) He applied for and was qualified to rent property in question
(3) D rejected application
(4) Property remained available thereafter
iii) Three-step approach to establish discriminatory intent
(1) P establishes prima facie case of discrimination
(2) Burden shifts to D to prove legitimate nondiscriminatory reason
(3) If D meets burden, P must show that reason is mere pretext
iv) Two Exceptions:
(1) Landlord is living in place with 4 or fewer units
(2) Single family dwelling if owner owns less than 3 and does not use a real estate broker or
agent

c) Types of Nonfreehold Estates

i) Term of Years Tenancy – Fixed duration agreed upon in advance
ii) Periodic Tenancy – Automatically renewed for successive periods unless landlord/tenant
terminates the tenancy by giving advance notice
iii) Tenancy at Will – No fixed ending point. It continues “only so long as both the landlord and
the tenant desire.” Usually to end it the landlord has to give notice.
iv) Tenancy at Sufferance – When person who rightfully took possession of land continues in
possession after that right ends
v) No such thing as lease for life or tenancy for life (Kajo Church Square, Inc v Walker). Attempt
to create just becomes tenancy at will, and landowner can terminate lease.

d) Leases longer than one year must be express agreements in writing. Needs to
have following:
i) Parties
ii) Property
iii) Term/Duration
iv) Rent

e) Two different rules of tenancy (Keydata Corp v United States)

i) American Rule: Landlord merely covenants that possession will not be withheld by himself.
That is, they just grant a right of possession.

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 ii) English Rule: Landlord actually agrees to give physical possession unless lease makes it clear
otherwise. Government leases follow the English rule.

f) Condition of the Premises

i) Constructive Eviction – Each lease has implied covenant of quiet enjoyment. Promise by
landlord that he would not wrongfully interfere with tenant’s possession. Actions that
substantially interfere with tenant’s possession such that it was the functional equivalent of
actual eviction.
(1) Prongs for proving constructive eviction:
(a) Landlord intended that he no longer enjoy the premises, which intent the trier of
fact can infer from circumstances
(b) Landlord committed a material act or omission that substantially interfered with use
and enjoyment of premises
(c) Landlord’s act/omission permanently deprived tenant of use and enjoyment of
premises
(d) Tenant abandoned premises within a reasonable period of time after the
act/omission
(2) Summary: Omission, when you have the legal ability to fix the problem, can also
constitute a basis for constructive eviction (Fidelity Mutual Life Insurance v Kaminsky)
(3) To be constructively evicted, you don’t have to vacate immediately, but you do have to
vacate in a reasonable period of time or you’re estopped from claiming constructive
eviction (JMB Properties Urban Co v Paolucci)
ii) Warranty of Habitability – Implied warranty of habitability is doctrine that says for tenants
there’s an implication that housing will be habitable and in general good condition (Wade v
Jobe)
(1) General Rule: Requires that landlord maintain
(a) Bare living requirements
(b) Premises that are fit for human occupation
(2) Substantial compliance with building/housing code standards are generally evidence of
fulfillment of a landlord’s duty to provide habitable premises
(3) Evidence of violations involving health/safety are generally able to sustain a tenant’s
claim for relief
(4) Three ways to calculate damages
(a) Percentage diminution – Percentage reduction in use
(b) Fair rental value as warranted less fair rental value in unrepaired condition
(c) Contract rent less the fair rental value of premises in unrepaired condition

g) Transferring Tenants Interest

i) Privity of Contract – Both have rights and duties under contract law
ii) Privity of Estate – Rights and duties arising from property law. Person who occupies land
owned by another has certain rights and duties based simply upon that possession.
iii) What about subleases v assignments?
(1) Assignment: Conveys whole term, leaving no interest nor reversionary interest in
grantor or assignor

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 (2) Sublease: Tenant grants an interest in lease premises less than his own, or reserves to
himself a reversionary interest in the term.
iv) If T assigns to B and then B assigns to C, then B is no longer liable because there’s no privity
of estate or privity of contract (Ernst v Conditt)
v) Test for Assignment and Sublease
(1) Majority Approach (Objective): Did tenant transfer his right of possession for all of the
remaining lease term (assignment) or not (sublease)?
(2) Minority (Subjective) test: Turns on intent of parties. It becomes possible to have
sublease for entire term.

h) Transfer Rules
i) Many modern leases expressly restrict tenant’s right to transfer. Several other possibilities
(1) Sole discretion clause: Lease might provide that L may refuse consent for any reason
whatsoever in his “sole discretion”
(2) Reasonableness Clause: The lease might provide that L may refuse consent only on a
commercially reasonable basis. For example, L might deny consent if Z has bad credit.
(3) No standard: Lease might require L’s consent, but contain no standard. Such provision is
called silent consent clause.
ii) Consent cannot be withheld unreasonably unless “a freely negotiated provision in the lease
gives the landlord an absolute right to withhold consent.” Restatement 2d
iii) Common law has hostility toward restraints on alienation, so silent consent clauses usually
require commercially reasonableness to object to assignment. Kendall v Ernest Pestana
iv) Factors to be considered for reasonableness:
(1) Financial responsibility of proposed assignee
(2) Suitability of the use for the particular property
(3) Legality of the proposed use
(4) Need for alteration of the premises
(5) Nature of the occupancy (i.e., office, factory, clinic, etc)
v) It is not reasonable to deny consent in order to charge higher rent

i) Ending the Tenancy

i) Surrender – Mutually agreeing to terminate lease early
ii) Abandonment – Vacating leased property w/o justification and w/o any present intention of
returning and defaults in payment of rent
iii) Three options in case of abandonment
(1) Sue for all rent: Keep premises vacant until lease term expired, then sue T for all accrued
rent
(2) Terminate the lease: Treat abandonment as an implied offer of surrender and terminate
the lease
(3) Mitigate damages and then sue for rent: Mitigate damages by reletting property,
retaining rent, and sue for balance
(4) Note: Nearly all jurisdictions follow the ‘mitigate damages and then sue for rent” option
iv) Landlord has duty to mitigate damages where he seeks to recover rents due from defaulting
tenant (Sommer v Kridel). Mitigation Steps
(1) Treat like any other vacant unit

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 (2) Advertise as vacant
(3) Accept any qualified willing and able tenant to rent it
(4) Note: Landlord has burden of proving that he tried to mitigate damages and breaching
tenant has to bear the cost of reasonable expenses

j) Eviction (Hillview Associates v Bloomquist)

i) There’s a presumption of retaliatory eviction if tenant is evicted within six months of one of
the following
(1) Forming a tenant association
(2) Making a complaint about living conditions
(3) Complaint to a governmental agency
(4) However, if tenant is one creating problem then landlord can evict
ii) Landlord does not have to renew lease and don’t have to provide a reason unless there’s a
statute to the contrary
iii) Majority Rule: Can’t have self-help remedies, and self-help qualifies as wrongful eviction.
Some states still allow self-help.

8) Selling Real Estate

a) Purchase Contract
i) Must satisfy the Statute of Frauds, which requires essential terms, in writing, with a
signature.
(1) Writing can just be a check if check has identity of land in memo and seller
endorses/deposits check
(2) Signature required is party sought to be bound. If seller is trying to force buyer then
buyer is the one that needs to have signed it
(3) If party admits there’s a contract, despite SoF, then still a valid contract (Restatement 2d
of Contracts §129)
ii) In addition to a promissory estoppel claim, can use part performance.
(1) Oral contract for real property is enforced if buyer
(a) Takes possession
(b) Pays at least part of the purchase price
(c) Makes improvements to the property
(2) Equitable Estoppel – Oral contract enforced if
(a) One party acts to his detriment in reasonable reliance on another’s oral promise
(b) Serious injury would result if enforcement is refused
iii) Marketable Title
(1) Title is unmarketable if
(a) Seller’s property interest is less than one she purports to sell
(b) Sellers title is subject to an encumbrance
(c) There is reasonable doubt about either (a) or (b)
(2) Value of property and condition has no impact on whether or not title is marketable
(3) Visible encumbrances (like power lines that would necessarily have easement) may not
count as encumbrance b/c buyer impliedly accepts visible issues
(4) Three types of title

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 (a) Record Title – Refers to title that appears in public land records. Wouldn’t
necessarily include violations of local ordinances/covenants
(b) Marketable Title – Has all aspects of title, not just what’s recorded
(c) Insurable Title – Title that insurance companies would insure at normal rates. B/c of
risk evaluation, it means there might be minor title defects
(5) Presumption is that you’re selling marketable title. Ordinance doesn’t constitute an
encumbrance, but standing violation of ordinance is (Lohmeyer v Bower)
(6) Equitable Conversion – During period between contract signing and closing property
might be damages/destroyed. Contract may contain provision that specifies who breaks
risk, otherwise states put risk on buyer through doctrine of equitable conversion.
(a) Some states, however, reject equitable conversion and the obligation to maintain
property in physical condition follows right to have actual possession and control
rather than legal right to force conveyance of property through specific
performance at some future date (Brush Grocery Kart v Sure Fine Market)
iv) Duty to Disclose – In most jurisdictions seller of residential real property is obligated to
disclose defects he knows that materially affect value and are not known/readily
discoverable by buyer.
(1) Test for materially affect is whether there would be an impact on value of property for
reasonable buyer.
(2) A reasonable person isn’t considered to get a home inspection. It’s based upon whether
a regular person could walk through a house and discover it.
(3) Reputational/psychological defects caused by seller must be disclosed (Haunted House
case, Stambovsky v Ackley)
(4) Professional sellers of residential housing and their brokers have a duty to disclose off-
site conditions that materially affect value/desirability of property. (Strawn v Canuso)

b) Closing
i) Deed is only effective
(1) When it is delivered
(2) There’s an intent to convey the deed
(3) When it is signed
ii) When it comes to deed delivery, grantor’s intent at the time the deed is delivered is the
“primary and controlling importance” and if alleged grantor has right to retrieve deed he
could change his mind so there’d be no actual delivery (Rosengrant v Rosengrant)
iii) When a grantor delivers a deed to a third person w/o reservation of a right to recall it, and
instructs third party to deliver it to grantee on grantor’s death he makes effective delivery as
matter of law (Vasquez v Vasquez)
(1) Death Escrow: Grantor gives deed to attorney and directs her to deliver only when
grantor dies
iv) Mortgage
(1) Deed of trust – conveying deed to a trustee for a mortgage, if they default trustee can
then sell land
(2) For price of sheriff sale to be asset aside price would have to shock the conscience
(Wansley v First Nat’l Bank of Vicksburg)

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 (3) For actual sale itself, every aspect of sale, including method, advertising, place, and
terms must be commercially reasonable. Standard has to be met to get a deficiency
judgment.
(4) Foreclosure Sale
(a) Need to give advance notice of sale to:
(i) Mortgagor
(ii) Junior Lienholders
(iii) Public
(b) Mortgagor can stop the foreclosure by reinstatement – Paying all past due
payments
(c) Right of Redemption: Some states allow original owner to pay sale price plus costs
and interest and get the house back
v) Breach: Can almost always get specific performance. Property is considered unique
(Giannini v First National Bank of Des Plaines)

c) Title Protection
i) Three methods of title assurance:
(1) Title Covenants
(a) General Warranty Deed: Grantor warrants title against all defects, whether they
arose before or after he obtained title
(b) Special warranty deed: Grantor warrants title against all defects that arose after he
obtained title
(c) Quitclaim Deed: Grantor makes no warranties about title (i.e. “Crap title”)
(i) Usually occurs in gifts, adverse possession, and deed in lieu of foreclosure
(2) Title opinion based on search of public records
(3) Title Insurance
ii) Title Covenants
(1) Under General Warranty/Special Warranty Deed there are six standard covenants
(a) Covenant of Seisin – Promise that grantor owns estate he purports to convey
(b) Covenant of right to convey – Promise that grantor has the right to convey title
(c) Covenant against Encumbrances – Promise that there are no encumbrances on the
title other than those expressly listed in deed
(d) Covenant of warranty – Promise that grantor will defend grantee against any claim
of superior title
(e) Covenant of quiet enjoyment – Promise that grantee’s possession of the property
will not be disturbed by anyone holding superior title
(f) Covenant of further assurance – Promise that grantor will take all future steps
reasonably necessary to cure title defects that existed at closing
(2) First three are present covenants, second three are future covenants
(a) Present covenants are breached, if at all, at moment deed is delivered. Generally
don’t run with land and pass to future grantees
(b) Future covenants are breached, if at all, after the closing and usually when grantee
is actually or constructively evicted by third party holding superior title

20
 (3) Can’t be constructive eviction or breach of covenant of quiet enjoyment “Until such
time as one holding paramount title interferes with plaintiffs’ right of possession”
(Brown v Lober)
(4) Breach of covenant of seisin must be within 10 years of delivery of deed otherwise
action is barred
iii) Title Opinion based on Public Records
(1) Two types of systems of indexing deeds, mortgages, and other documents
(a) Grantor-Grantee Index – Organizes by names of parties to transaction (Most
commonly used)
(b) Tract index – Organizes by parcel involved
(2) Abstract of Title – Summary of all conveyances and encumbrances of public record that
affect title to a particular parcel
(3) A single instrument, properly executed/Acknowledged/Delivered may convey separate
tracts by specific description and by general description capable of being made specific
where there is clear intent (Luthi v Evans)
(a) A subsequent purchaser who has actual notice or knowledge of such an instrument
is bound thereby and takes subject to the rights of the assignee or grantor
(b) Note: This requires ACTUAL notice.
(4) Bona fide purchaser doctrine – General rule is that person whose interest was created
first prevails, but nearly all states have exception. Record acts creates special protection
for subsequent bona fide purchasers
(a) Bona fide purchaser: One who takes a conveyance of real estate in good faith from
the holder of legal title, paying a valuable consideration for it without notice of
outstanding equities (Raub v General Income Sponsors of Iowa)
(i) Mortgagee is considered purchaser for purposes of above
(b) Three different methods for determining priority between adverse claimants
(i) Race: Purchaser who records first has priority
1. Even if purchaser knows about previously-created interest (only in NC and
LA)
(ii) Notice: Subsequent bona fide purchaser has priority
(iii) Race-Notice: Subsequent bona fide purchasers who records first has priority
(c) Bona fide purchaser must pay more than nominal sum, but is gray area
(d) Forged deed is void, transferring no interest. Any subsequent grantees in that chain
of title, including bona fide purchasers, receive nothing
(e) Deed induced by fraud is voidable, but if grantee conveys title to a bona fide
purchaser, subsequent purchaser prevails
(f) Under the shelter rule, a bona fide purchaser is allowed to transfer his protection to
a later grantee
(5) If a person has implied authority from the grantor to fill the blank in a deed with his own
name as grantee, when the name is written is when the deed becomes operative (Board
of Education of Minneapolis v Hughes)
(6) Types of Notice
(a) Actual Notice: Did search and had actual notice of an issue

21
 (b) Constructive Notice: Inspection of property yields info that would cause person to
investigate further
(c) Inquiry Notice: If person had actually inquired into title/property and there was
something about it that would cause a reasonably prudent person to conduct
further inquiry
iv) Title insurance
(1) Usually has duty to defend and duty to indemnify
(2) Right of access doesn’t require vehicular access, so title insurance company wouldn’t
have to indemnify (Riordan v Lawyers Title Insurance Group)
(3) Ambiguity in Title policy are interpreted in favor of insured party
(4) Lack of Access – Most places (despite Riordan) would say vehicular access is implied in
“Lack of access” clause
(5) Toxic contamination – Not an encumbrance and doesn’t render title unmarketable

9) Private Land Use Planning

a) Easements
i) Terminology
(1) Property:
(a) Dominant Tenement/dominant land – Land benefited by easement
(b) Servient tenement/Servient land – Land burdened by easement
(2) Parties
(a) Dominant Owner – Easement Holder
(b) Servient Owner – Owner of servient tenement
(3) Appurtenant or in gross
(a) Appurtenant easement benefits holder in her use of specific parcel of land
(b) Easement in Gross – Not connected to holder’s use of any particular land, but
personal to holder
(4) Affirmative/Negative
(a) Affirmative Easement – Allows holder to perform act on servient land
(b) Negative easement – Allows holder to prevent servient owner from performing an
act on the servient land
ii) Five basic types
(1) Express Easement – Arises by agreement of the owner whose land is burdened. Needs
to satisfy the Statute of Frauds.
(2) Implied easement by prior existing use – Has three different elements
(a) Severance of title to land held in common ownership
(b) Existing, apparent, and continuous use of one parcel for the benefit of another at
the time of severance; and
(c) Reasonable necessity for that use
(3) Easement by necessity – Landlocked property is the most common use. Also usually
includes utilities. Has two elements
(a) Severance of title to land held in common ownership; and
(b) Strict necessity for the easement at the time of severance

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 (4) Prescriptive Easement – Similar to adverse possession (but it doesn’t have to be
exclusive). 4 Elements
(a) Open and Notorious
(b) Adverse and Hostile
(c) Continuous
(d) For the Statutory Period
(5) Easement by Estoppel (or irrevocable license) – Usually has 3 elements, and is similar to
promissory estoppel. Key element is detrimental reliance and the reliance has to be
reasonable.
(a) Landowner allows another to use his land, thus creating a license
(b) Licensee relies in good faith on the license, usually making physical improvements
or by incurring significant costs; and
(c) The licensor knows or reasonably should expect such reliance will occur
(d) “Where an owner of land, w/o objection, permits another to expend money in
reliance upon a supposed easement, when in justice and equity the former out to
have disclaimed his conflicting rights, he is estopped to deny the easement” (Kienzle
v Myers)
iii) Creating Easements
(1) Express easement by Grant – Arises when servient owner grants an easement to the
dominant owner
(2) Express easement by reservation – Arises when dominant owner grants the servient
land to the servient owner, but retains or reserves an easement over that property
(3) Express easements may be created only in writing that satisfies Statute of Frauds and
will
(a) Identify the parties
(b) Describe servient land and the dominant land (if any)
(c) Describe the exact location of the easement on the servient land
(d) State the purposes for which the easement may be used
(4) Most modern decisions allow an express easement by reservation to be reserved in
favor of a third party
iv) Implied easements – If all houses have plumbing, new owner should know that all house
had to be connected. Just because you couldn’t see sewer line doesn’t make it non-obvious,
so knowledge is imputed to buyer (Van Sandt v Royster)
v) In VT land access is necessity and water access isn’t good enough. Court established test of
“reasonably practical” – Created Easement by Necessity (Berge v State of Vermont)
vi) Some courts shift burden for prescriptive easement to person claiming easement to prove
adverse use (O’Dell v Stegall) but most courts place burden on owner to show that it wasn’t
adverse

b) Interpreting Easements
i) Express easement encompasses only those technological developments that further the
particular usage for which easement was granted. “an electric transmission or distribution
line or system” isn’t broad enough to cover cable line (Marcus Cable Associations v Krohn)

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c) Terminating Easements (Preseault v US – Rails to trails)
i) Abandonment – Has two elements
(1) Stop using it
(2) Manifest an intent not to use it in the future
ii) Terminate by Prescription – If servient owner blocks use of easement in an open and
notorious, adverse and hostile, and continuous manner for prescriptive period the easement
ends
iii) Condemnation – Condemnation of servient land also terminates easement. Easement
holder entitled to just compensation
iv) Estoppel – If servient owner substantially changes his position in reasonable reliance on
holder’s statement that easement will not be used in the future
v) Merger – If one person obtains title to both the easement and the servient land
vi) Misuse – If holder seriously misuses the easement, it may be ended through forfeiture
vii) Release – Easement holder may release the easement in the servient owner by executing
and delivering a writing that complies with Statute of Frauds

d) Negative Easement
i) Modern restrictions usually take the form of real covenants or equitable servitudes
ii) Most common negative easement is conservation easement – Recognized in nearly all
jurisdictions. Restricts development and use of servient land in order to preserve open
space, farm land, historical sites, or wild and undeveloped land

e) Land Use Restrictions

i) Real Covenants – Promise concerning use of land that benefits and burdens both the
original parties to the promise and their successors. It is sometimes called a covenant
running at law.
(1) Two sides: Burden and Benefit. Duty to perform is burden, right to enforce is benefit
(2) An Easement can also be a real covenant.
(3) Six Requirements (Deep Water Brewing v Fairway Resources)
(a) Compliance with Statute of Frauds
(b) Intent to Bind Successors – Original parties must intend to bind their successors, and
is usually found in the express language of the document
(c) Touch and Concern – Covenant must “touch and concern” the land. It must relate to
the enjoyment, occupation, or use of property. Pure monetary obligation does not
touch and concern.
(d) Notice – Successor must have notice of the covenant. Requirement is satisfied by
actual notice, record notice, or inquiry notice
(e) Horizontal Privity – Concerns relationship between original parties. Split of authority
(i) Mutual Interests: Some states, horizontal privity requires that original parties
have mutual interests in affected land (e.g., landlord/tenant, cotenants, owners
of dominant and servient lands for easement)
(ii) Successive Interests: Must be a grantor-grantee relationship between original
parties, so that they have successive interests in the affected land
(iii) No requirements – Modern trend, and increasing number of states have
abandoned this requirement

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 (f) Vertical Privity – concerns relationship between an original party and his successor.
The test is simple: vertical privity exists only if the successor receives the entire
estate that the original party had.
(4) Notice and Horizontal privity not requires for benefit to run.
ii) Equitable Servitude – Requirements
(1) Statute of Frauds
(2) Intent to Bind successor
(3) Touch and Concern
(4) Notice (not required for benefit to run)
iii) Difference between real covenant and equitable servitude – Damages. Equitable servitude
gives injunction, and real covenant gets damages.
iv) Restatement combines real covenant and equitable servitude into one doctrine: covenant
that runs at law. It arises when
(1) Owner of property to be burdened intends to create a servitude
(2) He enters into a contract or conveyance to this effect that satisfies Statute of Frauds
(3) Servitude is not arbitrary, unconstitutional, unconscionable, or violative of certain public
policies (e.g., it cannot unreasonably restrain alienation)

f) Common Interest Communities

i) Created by a written instrument called a declaration. Declaration usually has four basic
parts:
(1) Homeowners Association: Establishes association that will administer CIC, specifies
powers, and provides for an elected board of directors
(2) CC&R’s: Imposes CC&Rs or similar restrictions on all land w/in CIC. Restrictions may be
enforced as real covenants or equitable servitudes.
(3) Assessments: Requires all unit owners to pay monetary assessments which finance
operation of association
(4) Ownership Rights: Generally provides that each unit owner holds fee simple absolute in
his particular unit, an undivided interest in common area of CIC (e.g., swimming pool,
tennis courts), and a membership interest in the association. Alternatively, title to
common area may be held by association on behalf of unit owners.
ii) Three general defenses to an enforcement action:
(1) Unreasonableness
(2) Abandonment
(3) Changed Conditions
iii) Unreasonableness (Nahrstedt v Lakeside Village Condo Association – Cat lady)
(1) Court looks at unreasonableness in terms of all people not just specific person. It’s not a
case by case analysis.
(2) For reasonableness: Does burden substantially outweigh benefits
iv) Abandonment (Fink v Miller – Wood shingles)
(1) Test for abandonment is that party opposing enforcement has to prove that existing
“violations are so great as to lead the mind of the average [person] to reasonably
conclude that the restriction in question has been abandoned.”

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 (2) Application of test: Court considers number/nature/severity of existing violations, prior
acts of enforcement, and whether it’s still possible to have “substantial degree” of the
benefits covenant intends
v) Changed Conditions (Vernon Township Volunteer Fire Department v Connor – Alcoholic
social hall)
(1) Party has to show that original purpose of the restriction has been materially altered or
destroyed by changed conditions, and that a substantial benefit no longer extends to
homeowners by enforcement of the restriction
vi) Valid exercise of power by Association
(1) Schaefer v Eastman Community Association (Ski lift case) – Test for determining validity
of action taken by board of directors
(a) Whether board acted within its scope of authority (Look at association’s legal
documents)
(b) Whether the action reflects reasoned or arbitrary and capricious decision making
(2) Restatement 3d of Property, §6.16 – Rights of property owners are safeguarded by
terms of governing instruments and through their power to remove or replace board
members through election process.
(3) Fountain Valley Chateau Blanc Homeowner’s Association v Department of Veteran’s
Affairs – Messy old guy
(a) Entering house and giving requirements on what books one can have on shelf and
forcing owner to clean is unreasonable exercise of board’s authority because no fire
hazard existed

g) Nuisance
i) Restatement 2d §821B – Public Nuisance
(1) Public Nuisance is an unreasonable interference with a right common to general public
(2) Circumstances that may sustain holding that interference with public right is
unreasonable include
(a) Whether conduct involves significant interference with public health, public safety,
public peace, public comfort, or public convenience
(b) Conduct is proscribed by statute, ordinance, or administrative regulation
(c) Conduct is of continuing nature or has produced permanent/long-last effect, and
actor knows/has reason to know that it has a significant effect upon public right
(and it does)
ii) Restatement 3d §821D – Private Nuisance: Non-trespassory invasion of another’s interest in
private use/enjoyment of land
iii) Restatement 2d §821F – Significant Harm: Liability for nuisance only to those who suffer
significant harm of kind that would be suffered by normal person in community or by
property in normal condition used for normal purpose
iv) Restatement 2d §822 – Only is subject to liability for private nuisance if and only if his
conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment
of land, and the invasion is either
(1) Intentional and unreasonable, or
(2) Unintentional and otherwise actionable under the rules controlling liability for
negligent/reckless conduct, or for abnormally dangerous conditions or activities

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 v) Restatement 2d §826 – Unreasonableness of intentional invasion: Intentional invasion of
another’s interest in use/enjoyment of land is unreasonable if
(1) Gravity of harm outweighs the utility of the actor’s conduct, or
(2) Harm caused by the conduct is serious and the financial burden of compensating for this
and similar harm to others would not make the continuation of the conduct not feasible
vi) Restatement 3d §840D – Coming to the Nuisance
(1) Fact that P has acquired or improved his land after a nuisance interfering with it has
come into existence is not in itself sufficient to bar his action, but is a factor to be
considered in determining whether the nuisance is actionable
vii) Reasonableness:
(1) Gravity of harm test: D’s conduct is unreasonable if it causes substantial harm,
regardless of the social utility of the conduct
(2) Restatement: Conduct is unreasonable if the gravity of the harm outweighs the social
utility of the conduct
viii) If major industry causes nuisance, one approach is to factor total damages (including future
damage) and make D pay those damages and continue to operate (Boomer v Atlantic
Cement)
ix) No social value to using wood-burning stove, so “gravity of the harm outweighs the utility of
the actor’s conduct” (Thomsen v Greve)

10) Land Use Regulation

a) Basics of Zoning
i) Court uses rational basis to determine whether ordinance is arbitrary or not (Village of
Euclid v Ambler Realty Co)
ii) Strict scrutiny only if zoning ordinance discriminated against suspect class or restricted a
fundamental right. Then would have to satisfy a compelling government interest and be
narrowly tailored.

b) Nonconforming Use
i) Zoning only prospective, not retroactive. If ordinance deprived you of your current use it’d
violate 5th Amendment and would be a taking.
ii) Ways to get rid of Noncomfirning use
(1) Destruction
(2) Abandonment/Discontinuance
(3) Use was nuisance
(4) Eminent Domain (paying fair market value)
(5) Amortization (AVR v City of St. Louis Park)
(a) Standard of review is reasonableness
(b) Considers following factors: Nature of use, location of property in relation to
surrounding area, description of character and use of surrounding area, cost of
property and improvements to property, benefit to public by requiring termination
of non-conforming use, burden on property owner, length of time use has been in
existence
(c) Most important factor: Recouping of Investment

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 (d) Secondary: Health benefits by getting rid of it

c) Zoning Amendments
i) Rezoning has special dangers. Threatens goal of comprehension land use planning and
creates risk of government corruption.
ii) Most jurisdictions review constitutionality of rezoning under same general standard as new
zoning: Is valid unless arbitrary and unreasonable, having no substantial relation to public
health, safety, morals, or general welfare
iii) Spot Zoning: Single out particular lot or parcel of land, projecting an inharmonious land use
pattern. Is considered arbitrary as a matter of law (Smith v City of Little Rock). Factors:
(1) Singles out a small parcel of land for different treatment
(2) Primarily for benefit of private owner rather than public
(3) In a manner inconsistent with general plan for community
iv) Variances: Allows for modification of an ordinance for a particular person if there’s a
hardship.
(1) Two types: Area variance and Use variance
(2) Qualifications for variance (Detwiler v Zoning Hearing Board of Lower Salford Township)
(a) Physical circumstances or conditions that cause an unnecessary hardship
(b) No possibility that property can be developed in strict conformity with provisions of
zoning ordinance
(c) Unnecessary hardship has not been created by applicant
(d) Variance won’t alter essential character of neighborhood or
substantially/permanently impair appropriate use or development of adjacent
property or be detrimental to public welfare
(e) Variance will represent minimum variance that will afford relief
v) Zoning Extent – Three types of zoning that are controversial
(1) Aesthetic Regulation
(a) Ordinance restricting types of houses that can be built requiring architectural
approval is acceptable use of zoning – State ex rel. Stoyanoff v Berkeley
(b) Banning signs, however, is unconstitutional restriction of free speech because it cuts
off entire medium of speech. There is individual liberty in the home and removing
ability from homeowner would shock the tradition and culture of America - City of
Ladue v Gilleo
(2) Family Zoning
(a) While government can determine who can live in house, cannot slice “deeply into
the family itself” and if ordinance has a “tenuous relation to the alleviation of the
conditions mentioned by the city” then it is unconstitutional – Moore v City of East
Cleveland
(b) Ordinance restricting single-family housing to no more than three unrelated persons
is related to a legitimate government interest and is fine – Ames Rental Property
Association v City of Ames
(3) Zoning that Excludes Newcomers (Associated Home Builders of the Greater Eastbay v
City of Livermore) – Test to determine whether ordinance “reasonably relates to the
welfare of those whom it significantly affects”
(a) Forecast probable effect and duration of restriction

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 (b) Identify the competing interests affected by the restriction
(c) Determine whether ordinance, in light of its probable impact, represents a
reasonable accommodation of the competing interests
(d) NOTE: This is a heightened standard than just rational basis

11) Environmental Law

a) General idea
i) Owner has no absolute and unlimited right to change the essential natural character of his
land – Standard of review for reviewing ordinances is reasonableness and it’s not
unreasonable to limit the use of private property to its natural uses (Just v Marinette
County)

b) Water & Wetlands

i) Public Trust Doctrine – Navigable waters and certain related lands belong to government as
trustee for benefit of public
ii) Public trust includes navigation, commerce, and fisheries. It now encompasses “preservation
of those lands in their natural state” and includes protecting scenic views (National Audubon
Society v Superior Court)
iii) Scope of Public Trust: Not limited to reach of tides, but encompasses all navigable lakes and
streams. Public trust doctrine can also protect navigable waters from “harm caused by
diversion of nonnavigable tributaries” (Nat’l Audubon)
iv) State has to take public trust into account before giving usufructuary licenses to
appropriator that would unavoidably harm the trust uses at the source stream. Once license
is given, public trust imposes a duty of continuing supervision over taking
v) US Army Corps of Engineers is responsible for ensuring that navigable waters remain open
to navigation and commerce. Clean Water Act assigned them responsibility to regulate the
discharge of pollutants into navigable waters including adjacent wetlands.
vi) Deep ripping can constitute discharge of a pollutant under Clean Water Act, and a plow,
bulldozer, or backhoe can constitute a point source (Borden Ranch Partnership v US Army
Corp of Engineers)
(1) However, Corps cannot regulate a farmer who desires to change from one wetland crop
to another
(2) Activities that require “substantial hydrological alterations” do require a permit and fall
under Corps authority

c) Land Surface
i) CERCLA – Any person that owned, operated a facility, a person who disposed at the facility,
any person that transported at a facility that has a hazardous chemical release is liable.
(1) This imposes strict liability upon owners and generators. It also allows for joint and
several liability if harm is indivisible. Willful/negligent blindness on part of absentee
owners isn’t allowed (US v Monsanto)
(a) Does allow a defense if owners can prove they “did not know and had no reason to
know that hazardous substances were disposed of on their land at the time they
acquired title or possession”

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 (b) Also allows defense if the harm was the sole responsibility of a third party and you
took precautions to prevent foreseeable acts/omission of any third party
(2) Summary: Strict liability, joint and several liability, limited defenses, retroactive
ii) Taking under Endangered Species Act includes “significant habitat modification or
degradation where it actually kills or injures wildlife” (Babbitt v Sweet Home Chapter of
Communities)

d) Atmosphere
i) If Congress addresses a question previously governed by a decision rested on federal
common law then court jurisdiction disappears. If a statute speaks directly to an issue then
there is no federal common law claim anymore, even with respect to nuisance (or Carbon
Dioxide emissions) (American Electric Power v Connecticut)

12) Eminent Domain

a) Takings Clause
i) “Nor shall private property be taken for public use, without just compensation”
ii) Two requirements:
(1) For public use
(2) Owner must receive just compensation

b) Public Use
i) Fixing deficiencies in a market qualifies as public use and is a rational exercise of eminent
domain power (Hawaii Housing Authority v Midkiff)
ii) Taking private property from one owner to transfer it to a new owner who will use it more
productively is also an allowable use of eminent domain (Kelo v City of New London)
(1) Economic benefit, standing alone, is enough to satisfy the public use element

c) Just Compensation Limits: Doesn’t usually include

i) Moving Expenses
ii) Emotional Connections
iii) Compensation for Elderly or those with fewer options to fine replacement
iv) Loss of goodwill for business with established customers
v) Does, however, include “severance damage” if only a portion of land is condemned

13) Takings
a) Early Doctrines
i) Noxious use or nuisance test
ii) Regulation adopted under police power to protect public health, safety, or welfare was not
a taking as defined by 5A even if it reduced value of property

b) Goes Too Far

i) If regulations are such that it “goes too far” then it’s a taking (Pennsylvania Coal v Mahon)
(1) If law was preventing a nuisance then it’s not a regulatory taking even if law shuts down
a business

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 (2) Diminution of property value plays a big role in determining what is “too far”
(3) Recognition of “average reciprocity of advantage” if both sides gained some benefit

c) Penn Central Standard

i) Penn Central created new standard, and there was a new three-part balancing test
(1) Economic impact of regulation on claimant – Usually measured in diminution of value,
but this, standing alone, isn’t enough if land use regulation is “reasonably related to the
promotion of the general welfare”
(2) Extent to which regulation has interfered with distinct investment-backed expectations
(3) Character of the government action
ii) Penn Central test looks at entire parcel and not just the portion affected by the regulation

d) Categorical Tests
i) Generally a taking will be found if the government entity:
(1) Authorizes a permanent physical occupation of land
(a) Even a tiny physical occupation (like a cable box) counts as a taking, but damages
might be small ($1) (Loretto v Teleprompter Manhattan CATV Corp)
(2) Adopts a regulation that causes the loss of all economically beneficial or productive use
of land, unless justified by background principles of property or nuisance law; or
(a) Statute banning building of houses on beach after land was purchased qualifies as a
taking unless the use could have been prevented with existing nuisance law. (Lucas
v South Carolina Coastal Council)
(i) If it could be prevented with nuisance law then it wasn’t a taking because right
to build didn’t actually exist
(ii) Doesn’t have to deprive owner of 100% of value, just all economically beneficial
or productive use of land
(3) Demand an exaction that has no essential nexus to a legitimate state interest or lacks
rough proportionality to the impacts of the particular project
(a) Exaction: Developer must provide land or fees to offset impacts of property. They’re
a condition of discretionary land use approvals

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