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Property Outline
Brian Lee
Spring 2020

I. Acquiring Property
A. First Possession
 Pierson v. Post: Post had been hunting a fox with dogs on publicly owned land and was hot in pursuit
when the Pierson showed up, shot the fox, and carried it off.
o Holding (Majority): Post had not done enough to establish possession of the fox- he had only
been in pursuit of the fox he didn’t wound it.
 Test: Title to a wild animal requires certain control. Possession of an animal occurs when: (1)
the person mortally wounds it AND does not abandon pursuit; OR (2) the person traps the
animal as to deprive it of its natural liberty and render escape impossible.
 Additional Rule: If the person is in pursuit as a part of industry and labor they still need to
meet requirements to acquire the right to or property in the fox.
o Dissent (Policy): To establish possession, one would have to be in pursuit and have some
reasonable prospect of catching the animal (far less than certain control). Puts more weight on the
on the labor and custom among hunters. Hunters should decide these questions because the court
should not affect customs of an industry. (Tribunal of sportsman should decide).
 Test: Property of the animal can be acquired when the person is in pursuit of the animal (1)
with the intention of hunting it; AND (2) that they are close enough to actually get the animal
OR the pursuer has a reasonable prospect of getting the animal.
 Ghen v. Rich: π was a whaler who shot and killed a whale with a bomb-lance. The whale sunk, washed
ashore, and was found by someone who sold it to Δ. It was custom in the business to find the person that
killed the whale and return it to them and the finder gets a finder’s fee.
o Holding: If the fisherman does all that is possible to make it his own, that is sufficient to establish
that it is his property. The court relied on the industry custom.
 Policy Reason: If they didn’t follow the custom rule, no person would engage in the business
of whaling if the fruits of his labor could be appropriated by any chance finder. The goal was
to encourage the hunting of whales and this rule creates an incentive for hunting by assuring
whalers that the fruits of their labor will be rewarded. Custom okay because it gives
reasonable salvage fee.
 Different than in Pierson v. Post because he didn’t have certain control because the whale
sank, but he did mortally wound the whale.
 Problems with using custom:
o Customs might be food for people in a group but are not socially optimal for society.
o With evolving customs it’s hard to know what custom to follow
o How would people know the customs of different things and places?
o When does custom prevail and when does law prevail?
 When customs are good and should be followed:
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o Antiquity- Universally followed by members of the trade

o Continuity- Custom is in place for a long time and universally followed in a close-knit community
o Feasible use- No conflict of how the rule should be applied
o Consistency- Must not be contrary to broader area of law that you want to apply
o Reasonableness- Should be limited in its use and effect- only small group of people and doesn’t
conflict with other areas of law
o Custom should only be applied at question at hand and after go back to normal rules of property.

B. Sequential Possession- Abandoned, Stollen, Lost

 Abandoned or lost property is subject to the rule or first possession
o If property is abandoned, the first person to find it can claim it.
o If property is lost, the finder has a superior right to the property relative to everyone in the world
except the true owner.- Armory Rule
 “Good faith purchaser”- someone buys a stolen item without knowing it was stolen. They are still
required to give up the item to the actual owner even though they bought it in good faith.
 Law in US for finders: the finders rights to the true owner is subordinate. The finder has a duty to act as
a bailee to the true owner.
o Duty to try and return and the owner has a right to sue the finder.
 Law in NY for Finder: a finder is a first possessor of a lost item. If it is less than $10 in value, the finder
has a duty to look for the owner for 1 year and after that they finder can keep it. If it is more than $20
value, finder has a duty to turn it into the police and after 3 years if it is unclaimed then the finder can
keep it.
o NYC Law: more than $10 the finder has to turn it into the police.
 Jus Terti- the right of a third person. There is no right of a third person defense.
o If a law suit is between A and B, B can’t say that the thing belongs to C because if B is a
wrongdoer it doesn’t matter that C is the rightful owner because it doesn’t diminish B’s
wrongdoing.
o If A sues B, they can both bring in evidence as to the ownership. Id B says it belongs to C, the
court cannot assess those claims because C cannot bring in evidence.
 When π is a converter (wrongdoer) and Δ is a finder:
o It’s hard to prove that the π was himself a converter and not himself a finder. Judges are motivated
by morality- they want to rule for the good guy if they can.
 If the 1st finder loses possession, the 2nd (new) finder has superior right to the thing over everyone in the
world except the true owner AND the first finder.
 If the 1st is a finder and the 2nd is a converter the finder wins.
 Armory v. Delamirie (1722): Chimney sweeper’s boy found a jewel and brought it to Δ
(gold/silversmith) shop where the apprentice weight it without the jewel and the socket wasn’t worth
much and tried to give the boy money for the cheap socket but the boy just wanted it back and it was
given back to him without the jewel in the socket
o Legal Issue: Who has the ownership when the thing is found and it is unclear who the original
owner is?
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o Holding: The finder has ownership of the thing that will allow him to keep it against all but the
rightful owner.
o Rule: While a finder doesn’t have absolute property ownership over the thing, he has a right to it
above all except the true owner of the thing
 Clark v. Maloney (1840): π found 10 logs in Delaware bay, took them and moored them at the mouth of
the creek. Δ ends up with possession of the log and wouldn’t give it back alleging they found it drifting
upstream in the creek.
o Legal Issue: Who has a right to the property where there are two sequential finders?
o Holding: The first finder has rights against everyone except the true owner and everyone includes
the second finder.
o Rule: Finders have property rights over the thing against everyone except the finders that came
before them and the original, true owner.
 Anderson v. Gouldberg (1892): π cut logs and brought them to a saw mill where Δ took them. Π cut the
logs by trespass (conversion) and Δ also took the logs (also conversion)
o Legal Issue: Whether possession by conversion is enough to establish ownership over another
wrongful taker of the item?
o Holding: Even though the possession was established by conversion, they still have a right to the
property over another wrongdoer who is a stranger to that property. (so if the 2nd was a finder and
not a converter they would win, however, its hard to prove that the 1st was a converter and not
himself a finder).
o Rule: A converter does not have a right to property that they wrongfully take except if the person
that gets it after them is also a converter.
C. Nemo Dat
 Nemo dat quod non habet- no one can give what they don’t have
 A can only transfer what he owns to B. If A owns 5 acres of land, he can only sell those 5 acres to B.
 If A shares ownership of the land with C and sells it to B, B now shares the ownership with C.
 If A sells land to B and then after “sells” the same land to C, it belongs to B because once A sold it to be,
he no longer owned it so he couldn’t sell it to C. (Would be like trying to sell the Brooklyn bridge).
 Derivation Principle: you can only transfer the rights that you have. Transferee doesn’t have any rights
that the transferor did not himself have.
D. Ad Coelum Rule
 A person owns their land all the way down to the center of the earth and all the way up to the heavens.
 We own so much of the space above the ground as we can occupy or make use of, in connection with
enjoyment of our land. The right is not fixed. It varies with our varying needs and is coextensive with
them. The owner of land owns as much of the space above him as he uses but only if he uses it. (Hinman
v. Pacific Air Transport- under trespass)
 Edwards v. Sims (1929): π had an opening to a cave on his property and made improvements to it and
made it an attraction and Δ, after it was successful, wanted it to be surveyed because it was partially
under his land.
o Issue: Does the court have the authority to order an intrusion of the π’s land to determine the rights
between the two land owners.
o Holding: where there is a reasonable suspicion that there is an intrusion onto a neighbor’s property
a court could have the property surveyed to establish property rights of the thing. Because Δ work
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on the land added significant value to the others property, it didn’t become his property via
accession.
o Rule: Despite the principle that property ownership includes the air above and the soil below real
estate, a court of equity is empowered to make rulings which prevent the property from being used
to the detriment or interference with contiguous property owners
E. The Commons & Open Access
 Tragedy of the Commons: if a resorce is open to all to exploit then a rational economic actor will exploit
the resource to the best of his abilities. This is because he derives the direct benefit of his labor and
suffers only delayed costs from the deterioration of the commons which he and others collectively over
exploit
o The result of tragedy of the commons is the long term destruction of the commons because
no one has an incentive to take care of it
 Ex. Common property that everyone can graze their animals on, no one is going to plant more
grass for grazing. Everyone tries to maximize their own interests by grazing as much s they
can, but no one has an incentive to plant more grass even though its bad for the group.
 Ex. Over fishing is a worldwide problem- great for fisherman and people running large fishing
ships, but bad for the ecosystem.
o Possibilities of Control For Tragedy of The Commons
 Leviathan: To advoid the tragedy of the commons, an external force (the government) must
exert control over natural resource systems through an agency. (State rules, policies and laws
to protect commons.)
 Benefits: enforcement and incentives
 Cons: Coercive; central don’t have information so they make mistakes.
 Privatization: the only way to avoid the tragedy of the commons is to impose private
property rights whenever resources are owned in commons. (Divide up commons and give the
pieces to individual owners.)
 Benefits: Incentives for upkeep of the commons and makes competition between
individuals and nature instead of individuals and individuals
 Cons: risks that one’s piece of land will have a natural problem and then they would have
nowhere to go (natural problem like bad soil, water runoff, etc.)
 Empirical Alternative: Parcels out the best sports by lot and each actor cycles through all the
spots so that each individual has the opportunity to use the best spots for what they are doing.
Leads to an optimization of the site’s production capabilities, and a reduction in resource
waste (no more searching or fighting over a spot. (Adopted in a village in Turkey for fishing
rights in a lake and they rotated so everyone got an opportunity to fish in the spot most
frequent to migrating fish).
 Tragedy of the Anti-Commons: Instead of having too many people on one common, you have too many
private owners. Hard to get all the owners to agree to make decisions on what to do with it because they
are all owners and all get a say. Then right to the larger resource (what they all own a piece of) may never
be assembled because (1) transaction costs are too high; (2) some rightsholders might act as “holdouts”
(people who hold out for a better price; or (3) they might act irrationally and refuse to grant permission to
use their share of the resources.
o Both Commons and Anti Commons: An individual has an incentive to act in a way that imposes
costs on others, either by exercising their rights of access (to a commons) or their right to exclude
others (to an anti-commons).
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o Both Commons and Anti Commons: Overcoming the problem requires some kind of realignment of
rights, and does this requires dealing with holdouts and free-riders.
 Tragedy of the Semi-Commons: This occurs when a given resource is subject to private exclusion rights
in some uses or along some dimensions, but is a commons or open access for other purposes or along
other dimensions. (You can use it for some things but not for others).
o In Tragedy of Semi-Commons, individuals will have an incentive to favor their part of the semi-
commons (like with goods such as grass or manure) and to trash other parts of the commons (like
with excessive trampling).
F. Water Rights
 Riparian Owner- owns land that abuts natural water. You buy the land and you buy the water rights
with it.
 Principles of Allocation:
o Natural Flow: cant use so much that it disrupts the use of people downstream (MOSTLY UK NOT
US)
 Useful resource is plentiful because everyone can use it as much as they want. When its
scarce, you can’t use as much as you might need because it will disrupt others.
 It is very restrictive- no one can use it because they have to leave it for everyone downstream
 Exception: you can enter a deal to purchase the water belonging to the people downstream,
but you would have to buy it from every person
o Reasonable use: rights to the water goes to people using it for a reasonable use (US GENERAL
RULE)
 Supports use for economic development and what is reasonable is determined by a court
 Some peoples use is preferred over other people
 Problems: (1) is it’s a new use its hard to determine what would be reasonable; (2) long term
planning- what’s reasonable now may not be reasonable in 30 years.
o First Appropriation: just allocation promotes economic growth by promoting certainty.
 Not always obvious who is first
 Typically in dry western states
o Correlative Rights: your of water rights depends on the scope of property you own.
 Relationship of allocation of water to just allocation of other resources
 Equalitarian equil- ignores relative value of competing uses
 Ex. A owns land with 1/3 of a lake on it and B owns land with the other 2/3 of the lake, A is
entitled to 1/3 of the water and B is entitled to 2/3 of the water
o On an exam, if it doesn’t tell you which to use, use reasonable use/riparian rights AND first
appropriation.
 Diffuse water: not valuable- you’re allowed to repel water that is not in a defined channel away from
your property even if it goes onto someone else’s property. You can get rid of it.
 Ground Water: you are entitled to whatever is under your land.
 Evans v. Merriweather (1842): π owned a steam mill downstream of Δ’s mill each dependent on wells.
Ordinarily the stream was sufficient to supply both mills, but there was a draught. Δ instructed his
workers to shut down and not build a damn to divert the water to his well but they did so π’s mill could
not and did not run for one day.
o Legal Issue: To what extent can an upstream riparian proprietor use the water from a non-
navigable stream?
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o Holding: Riparian proprietors can use as much water as they want for domestic purposes (natural
wants including water for his stock and home), but if he wants it for irrigation or manufacturing
purposes and a lower proprietor needs it to supply his own natural wants, the former needs to leave
enough for the latter’s wants.
o Rule: The use needs to be reasonable and you cannot use more than is reasonable (reasonable use
principle). Natural wants trump artificial wants.
 Coffin v. Left Hand Ditch Company (1882): π irrigated land on the left of a creek by diverting water
from the creek into ditches. Δ lived downstream of π and during a drought wasn’t getting enough water
so he went and tore down the π dams.
o Legal Issue: Was the appropriation for a beneficial purpose? Does the first party to use water from
a natural source for a productive purpose have a property right to the water superior to the rights of
subsequent users?
o Holding: The first appropriator of water from a natural stream for a beneficial purpose has a prior
right thereto to the extent of the appropriation. Yes, when a party uses water for a productive
purpose that party obtains a property interest in the water that’s superior to the interests of
subsequent users.
 Colorado adopted the Prior Appropriation Doctrine: productive use of water is what
establishes a protectable property interest. Therefore a riparian owner must make a productive
use of the water.
o Rule: The priority of right is acquired by the priority of appropriation not by riparian
proprietorship.
o Policy: Imperative Necessity for artificial irrigation of soil because without the water it will
destroy property in places where it is very dry. Imperative necessity requires that the court adopt a
first appropriation approach: the first to appropriate the water for a reasonable use/benenficial
purpose has the right to it. It doesn’t need to be most or even more beneficial it just needs to be any
beneficial purpose.
 Higday v. Nickolaus (1971): the city wanted to go and take out the water that was in no defined channel
and oozed and percolates from underneath π farm lands to provide water to the city’s inhabitants.
o Legal Issue: Whether there is a legal right for a landowner to the percolating water under their
land.
o Holding: A city may not withdraw percolating water and transport it away from where it was takn
if the result deprives the owner of the land from his reasonable use.
o Rule: For groundwater any use that is incident to the beneficial enjoyment of that particular land
counts as a reasonable use and gives the owner a legal right to it. All groundwater is percolating
water and it is up to whoever is trying to take it away to prove that it is in a defined channel.
G. Adverse Posession
 Adverse possession allows for title to property to shift to a trespasser.
 Adverse possessor’s rights are good even against the rightful owner not dispite of his actions but because
of his actions
 Adverse possessors are trespassers until basically they have been there for so long and done so much on
the property that it becomes theirs.
 Someone makes use of your property and you have the right to being an action for ejectment to restore
your possession of the property, but if the statute of limitations runs and the other elements have been mt
for the statutorily required amount of time you are divested of all rights of your property.
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o The original owner of real or personal property loses title to the property: they cant share
possession with the adverse possessor, seek injunction or the priviledge to enter the property once
adverse possession has been found by a court. Also cant seek damages for the adverse possession
during the limitations period.
 For adverse possession there needs to be (ALL 6 OF THEM):
o (1) Actual- physical possession in the manner a reasonable owner would posses the property given
its character, nature, and location.
 just saying you possess the property is not enough, the adverse possessor needs to occupy
part of the property
 Necessary for true owner to bring an action for trespass/ ejectment (land) or conversion/
replevin (chattels), each of which is based on the premise that the adverse possessor has in
fact, deprived the true owner of possession.
o (2) Exclusive- not shared with the original owner and otherwise use of a type that would be
expected of a title holder. You cant let anyone come and go as they please, possession must be
exclusive to the extent that a reasonable owner would do so.
 Other people can use the property but only with your permission.
 Exercising and claiming your right to exclude others from the property
o (3) Open & Notorious- sufficiently vidable and obvious to put the original owner on notice, where
a reasonable inspection of land would make the owner aware of an adverse claim.
 Constructive notice: the true owner should have known about the adverse possession, even if
they didn’t it doesn’t matter they should have
 Actual notice: the true owner is actually made aware. Requirement is satisfied if the owner
actually knew.
 Notorious: commonly recognized and known by the community. Open- they see it.
 Residing on land, building improvements, or cultivating crops usually sufficient.
o (4) Continuous- as continuous as a reasonable owner’s possession would be for the entire duration
of the statutory period without interruption.
 All the time or the adverse possessor uses the property as others would property of the same
nature (ex. A summer home only in the summer every summer would be sufficient. Ask: how
is property of this type occupied).
 Necessary to show that cause of action accured at the time of adverse possessors original entry
as opposed to there being a series of discrete periods of possession each of which would start
the “clock” over again.
o (5) Hostile (adverse)/ Under a Claim of Right (color of title)- The true owner must not consent to
the possession. The possession has to be hostile adverse claim to new owner and if they are there
with permission it is not adverse or hostile.
 Under a claim of right-Three positions: (1) adverse possessor has a subjective and mistaken
good faith belief that they have a right to the property; (2) requires adverse possessor to have a
subjective bad faith belief the property is theirs (they know they are doing something wrong;
(3) state of mind is irrelevant
 Color of title- usually a deed or instrument that claims to transfer the title to the land to the
adverse possessor but in fact does not- this is an added requirement in a few jurisdiction and
requires a document that gives the appearance of title, but is for some reason invalid.
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o (6) For the Statutorily Required Period of Time- each jurisdiction will have a statutory limit and
the possession has to be for the entire period of time. Disability could have “the clock” if they had
the disability when they took possession.
 Other states and jurisdictions will use different factors or different language
 Doctrine of agreed boundaries: where the true boundary is uncertain they may make their own
boundary and if its there or a statutorily required amount of time then that becomes the boundary by
adverse possession (own boundaries created by fences or shrubbery, etc.)
 Justifications for Adverse Possession System
o (****Insert Reason One Here*****)
o Generally, the adverse possessor has a reliance interest in the property. Recognizing adverse
possession means that we are recognizing the reliance interest.
 Counter: the property owner has a stake in the value of the entire property allowing someone
to adversely possess against that interest will reduce their economic interest.
o Cuts down how long people can bring claims so that people can be secure in their claims to
property which prevents frivolous claims. (statutorily required period of time)
o The law has been applied to real property incorrectly so adverse possession clears up the errors.
o If you have been on property for so long you get emotional attachment to it so they don’t want to
take it away (doesn’t matter good faith or bad faith)
o Allowing owners of property to sleep on their rights for a long time before suing creates an
additional administrative burden on the court.
 Counter: creates an incentive for adverse possession by bad faith, which creates an incentive
to act in bad faith. The law should not create an incentive for bad faith.
o Adverse possession keeps transaction costs low because of nemo dat- they can only sell it if they
won it. Avoids “deed in the attic” problems. (doesn’t matter good faith or bad faith).
 Adverse possession claims generally cannot be brought against the government (definitely not the federal
government pursuant to the maximum nullan tempus occurrit regi- “No time runs against the king”
 Cotenant as Adverse Possessor: each cotenant has an equal right to occupy the property, in order to be
adverse possessor, the cotenant must unequivocally claim sole ownership of the land by either (1)
physically outlasting the cotenants; OR (2) a taking other steps that clearly notify cotenants of claim
 Future interests are immune form adverse possession until the interest holder is entitled to immediate
possession of the land.
 Personal property:
o Limitations period is usually shorter. Since a chattel is portable, adverse possessors use wont
normally out owner on notice.
o Another test used instead of applying traditional adverse possession elements to personal property:
the limitations period starts when the owner knows or has reason to know that the chattel is being
held by the adverse possessor.
 Scott v. Anderson-Tully Co. (2015): parties were next door neighbors and Δ logged on 20 acres of π
property. Δ said that they owned titled to the land via deed.
o Holding: Δ obtained ownership of the property via adverse possession because it was common
knowledge and π should have known that Δ was using the property.
o Rule: For the open and notorious requirement for obtaining adverse possession, the adverse
possessor has to show that the original owner had notice of the adverse possession by either
constructive notice- not actual notice just that they should have known the property was being
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possessed or actual notice- where they are actually made aware. Notorious- commonly recognized
by the community as being possessed by the adverse possessor. Open- they can see it actually
being possessed.
o Need a claim of ownership- acts that are insufficient for developed or improved land may be
sufficient for undeveloped and unimproved land.
 Carpenter v. Ruperto (1982): π knew that the lot was not hers but she improved it and made it nice. Prior,
it was only used to store junk and the true owners did not keep up with it. Π was motivated to care for the
property because of rats and other safety concerns for her children.
o Legal Issue: Can someone who knows the land they are possessing is not there claim a right to the
land through adverse possession?
o Holding: She knew it wasn’t hers and that she was doing something wrong so she cant get
ownership of the property. Reasoning: The true owner here, was even still using the property as
junk storage and she was acting in bad faith by occupying it knowing it was not hers to clean up.
At some point she was also given permission to use the property so it also breaks the hostile
requirement. Policy Argument for not giving her the property: The law should favor the true
owner because the fact that the adverse possessor is using the land “better” than the true owner, its
still the true owners and allowing this would give people an incentive to take other peoples
property just because they think they can use it better.
o Rule: Good faith is required in adverse possession (most states) (there is a bad faith rule that
requires bad faith but it is an extreme minority, and Connecticut rule says state of mine doesn’t
matter)
o Counter argument: law should favor adverse possessor because she had been using it and came
to rely on it as party of her property. Actually possessing something makes them emotionally
attached to it and making improvements makes them care about it. That’s why there is a statutory
requirement, if she was using it for so long she should be able to keep using it.
 Howard v. Kunto (1970): 4 lots and all the owners have the title to the wrong lot of summer homes. Two
of the lots are improved and two are unimproved. Kunto’s had deed to unimproved lot but they were their
summer home was on improved land.
o Legal Issue: Does the fact that the home was only summer occupancy defeat the claim of adverse
possession? May a person who receives title to land A under the mistaken belief that he has title to
B and who subsequently occupies tract B for the purpose of establishing title to tract B by adverse
possession, use the period of possession of tract B by his immediate predecessors who also record
title to tract A?
o Holding: Only being there for the summer still counts as continuous because the property was in a
neighborhood of summer homes. The Kunto’s can claim privity even though they don’t have the
deed to the right property because it’s a reasonable connection so they meet the statutory
requirement,
o Rule: Continuous refers to all the time without a break OR used as property of like nature. You
can add the amount of time you own the property and the time your predecessor owns the property
(privity) because the deed connects them.
H. Ownership of Body Parts
 Commodification: making something have a market value. Some things in life shouldn’t be translated
into monetary value.
 Unjust enrichment: damages are not awarded on how much you were injured, but howmuch the
wrongdoers benefited from their wrongdoing.
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 Some things can be some but not given and some things can be given but not sold. Some things can
neither be given nor sold.
 The supreme court considers “salable” prts of the human body tangible property: we can transfer them,
use them, and exclude them from possessing them.
o Uniform Anatomical Gift Act: authorizes the gifting of organs and has been adopted by all states
o National Organ Transplant Act prohibits the sale of human organs “for use in human
transplantation” suggesting that at least a portion of the bundle of rights remain.
 Hypo: Client wants to help cure a rare disease and thus donates tissue to the lab. CLeint doesn’t sign any
consent foms because he wants it to be available around the world. Without clients knowledge, the lab
succeeds in extracting the gene and patents the findings. Once the patent is issued, the lab sends notice
for everyone else to stop using the same gene. Client wants to sue.
o Under Moore, excised human cells/ tissue used in medical research are research institutions
property. Individual interest in the cells evaporates once the cells are removed.
o Contrast to Moore, there is no doctor/patient relationship so consent forms don’t help, the clients
expectations of the tissue.
o Argue that the client had interest in the cells because he wanted to donate them to create a cure that
would be available to the world which is different from Moore.
o Look at policy and whether the court is trying to protect the industry
o Look at statutory framework of the state to show if they eliminated the property interest.
 Should human organs be sold?
o Free market: serves as an efficient system for allocating all scarce resources. From this
perspective, the shortage of organs is explained by providers having no incentives to supply organs
because they cannot receive payments.
 Problem: it would create a disincentive for people to donate organs because they could get
money for them. This would create a problem that poorer people wouldn’t be able to afford
buying the organs they need to survive while wealthier people could offer more money and
get the organ. Also, poor people would need the money and supply the organs to the rich to
get money presenting risks of human exploitation (Utilitarian)
o Personhood theory: if someone wants to sell an organ the state shouldn’t stop them. Gives
everyone complete decision making authority over parts of their bodies, without any need for the
societal paternalism inherent in the current ban.
o Utilitarian: suggests that the social costs of organ sales may outweigh the benefit because it would
increase the total cost of medical care, and would create a division between rich and poor that isn’t
present today because wealth is irrelevant to allocation of available organs.
o Social Burden: people could sell organs they need and society would have to deal with the
reprcussions caused by unregulated organ sales. Ex. A sells her an organ that leaves her blind,
immobile or incompetent- society will presumably bear the cost of her lifetime care.
 Moore v. Regents of the University of California (1990): π was diagnosed with leukemia and went to
UCLA medical center and they recommended he have his spleen removed. Π signed a written consent for
the operation but without informing him, Δ and associates took the blood cells from the extracted spleen
and did reaserch on them and developed and patented a new cell line and made a lot of money off of it.
o Legal Issue: Did the π have interest in the cells of his spleen after it was extracted to make the Δ
liable for conversion?
o Holding: π had no interest in the spleen and no property right.
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o Rule: Conversion is a tort that protects against the interference with possessory and ownership
interests in personal property. To establish a conversion, π must establish an actual interference
with his ownership or right of possession. Where π neither has title to the property alleged to have
been converted, nor possession thereof, he cannot maintain an action for conversion.
o Policy: Patient is entitled to a veto right in regards to doctors because if they don’t like the
doctors plan they can go to another one.
II. Rights Available to All Property Owners
 Right to Exclude: the right to exclude others form the use or occupancy of the particular “thing”.
 Right to Transfer: the right to transfer the holders property rights to others.
 Right to Possess and Use: traditional English common law generally recognized the right of an owner to
use his land in any way he wished as lone as : (1) the use was not a nuisance; (2) no other person held
interest in the land.
o Today however, virtually all land in the United States is subject to statutes, ordinances, and
other laws that restrict its use.
 Right to Destroy: in general, the law is reluctant to interfere with an owners freedom to abuse or even
destroy her property, but there is a discernable trend toward limiting this right. Ex. Some courts have
refused to enforce provisions in wills that direct the destruction of houses or killing of animals
III. The Right to Exclude
A. Main Justifications for the Right to Exclude
 Private property is necessary to avoid the tragedy of the commons and creates incentives to invest in
improvements
o Counter: not applicable if there is no commons
 It is good to have individual owners make decisions of how land is to be used because they are closer to
the resources that will be used. It is better to decentralize the decision-making than it is to centralize it.
o Counter: centralization allows for large-scale coordination between many different owners. Can
lead to economics of scale.
 The right to exclude is not the end, but rather a means to an end in that it protects our interest in using
things. Protecting one’s interest in using things allows for personal autonomy. Thus, we can justify the
right to exclude as a way of protecting individual autonomy.
o Counter: unlimited right to exclude can lead to societally- suboptimal outcomes like racial
covenants.
 The Lockean idea that we want to reward people for their labor. This has an economic component in that
the right to exclude means that only the landowner who put the effort into improving the land or using it
for economic activity can reap the fruits of his labor, and also a moral component (the expenditure of
labor has a kind of moral value which we reward by allowing the laborer to keep the fruits of his labor.)
B. Trespass
 Trespass is both intentional and unprivileged entry into land owned or occupied by another.
 Any intentional intrusion that deprives another of possession of land, even if only temporarily, is
considered a trespass.
 Strict liability tort- no inquiry into the balance of interest between the π and Δ or whether the inrtustion
was reasonable
 Someone who commits an intentional trespass is subject to liability “irrespective of whether he thereby
causes any harm to any legally protected interest of the other”
 There is a right to exclude others from entering or using your property- it is the very essence of property.
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 Jacque v. Steenberg Homes, Inc. (1997): Δ wanted to cut across π property to deliver a motor home
because it was easier and safer than the alternative, but π said no because they didn’t want people using
their land after losing some to an adverse possession action. Δ told the employees to do it anyway and
block the road so no one would see them
o Legal Issue: For intentional trespass, can punitive damages be awarded when there are no
compensatory or nominal damages?
o Holding: Yes because in cases like this if there was no way to give punitive damages there would
be nothing to deter the activity.
o Rule: You have a right to exclude people from your property no matter what the reason, so
punitive damages can be awarded.
 Hinman v. Pacific Air Transport (1936): Δ planes fly over π land and π says he has property interest at
least 150 above his land and the planes come really close when they take off and land.
o Legal Issue: Does close proximity (of the airplanes) interfere with ones use and enjoyment of his
land? Does the ad coluem doctrine apply?
o Holding: Ad Coluem doctrine meant that you can use the sky above your land to the extent that
you are capable of using it and if you are capable of using it then no one can interfere with your
use.
o Rule: You can only own what you can actually get to. You have to be capable of being able to
exclude people. The air and sea are incapable of exclusive possession unless you are using it.
Trespass requires a property right to the person being trespassed upon.
 Baker v. Howard County Hunt (1936): Δ hunting club goes out with dogs and hunt bred rabits on π
property. The dogs also bite π. Years later π shoots one of the trespassing dogs.
o Legal Issue: Whether equity may afford injunctive relief against a series of trespasses which,
while not continuous are nevertheless apart of a single courts of conduct which seriously intergerse
with the right of a landowner to peaceful enjoyment of his property.
o Holding: Money damages would not be adequate because he suffered injuries that are intangible
and ineligible to translate into a dollar value. Injunctive relief is fine.
o Rule: Requirements for equitable relief: (1) no adequate remedy at law; (2) clean hands. (there are
more but this is what the court mentions.) A dog owner is not liable for the dogs trespass unless he
drives the dogs onto the property.
 Pile v. Pedrick (1895): Δ built a wall that was 1 3/8” over the property line.
o Holding: Δ had no right at law to project beyond the division line and they have to move the wall
so that it is only on their land.
o Rule: You have a right to exclude so no one has a right to build on another persons land even if its
only a little.
 Golden Press, Inc. v. Rylands (1951): Δ constructed a building on its property which adjoined π property
on the east and the west wall of the building was between 2-3” over the property line.
o Holding: where the encroachment is unintentional and slight the damage to the π is small and the
cost for removal would be very expensive, we just grant money damages which are likely to be
minimal.
o Rule: Where the encroachment is deliberate, and constitutes a willful and intentional taking of
another’s land (bad faith), equity may well require its restoration regardless of the expense of
removal as compared with damages suffered therefrom; but where the encroachment was in good
faith the court should weight the circumstances so that it shall not act oppressively. Default
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judgement is that the encroachment was don’t in good faith to determine if they get the injunction
or minimal damages.
 Producers Lumber Supply Co. v. Olney Building Co. (1960): Δ sold land to π and then forgot that he sold
that lot and built a house on it. When he learned he sold it the house was almost done. In negotiating with
Δ to buy the land π had it knocked down.
o Holding: The π removed the building in bad faith. If the improver made a good faith mistake in
building on the other persons property they can get equitable relief to move the structure if its
movable or they may be able to recover the amount of the structure by selling it to the landowner.
If the landowner cannot and will not purchase the structure, the landowner can sell the land to the
improver at market value. If they will not buy or sell the court can order then to sell the land and
divide up the proceeds between them.
o Rule: If a builder builds a building on someone elses land without permission, the building
becomes a fixture and therefore becomes the property. “Whatever is fixed to the soil belongs to
the soil”. There is only equitable relief for people with clean hands and only good faith removers
will be compensated.
C. Self Help: you’re allowed to use reasonable force on trespassers
 Property owners are entitled to take a variety of steps to protect or enforce their property without the
direct involvement of the legal system.
 This is a remedy for property owners who are in possession of real or personal property.
 A right is a claim that one person has against one or more others which corresponds to a duty that these
others have towards the one with the right.
 A privilege is a freedom to act in a certain way without interference from other, which corresponds to a
“no-right” in others to interfere with the one exercising the privilege. A privilege permits but does not
compel a person to do certain things.
 Self-help can be thought of as a type of privilege associated with ownership.
 Berg v. Wiley (1978): Resturant tenant made unauthorized renovations, had safety violations, etc. so the
landlord was entitled to terminate the lease. Landlord tried to change the lock while tenant was present
and he wouldn’t let him. Landlord returned when tenant was not there with a locksmith and police officer
to change the locks and leased the property to another tenant.
o Legal Issue: Was there sufficient evidence that the tenant did not abandon the property? Did the
landlord act unlawfully as a matter of law when he changed the locks?
o Holding: Landlord’s use of self-help was unlawful as a matter of law because it was not
peaceable. There had been a history of animosity between the parties and violence might have
ensued so the presence of the risk of violence is enough to make the entry not peaceable.
o Rule: Landlord may use self-help under the common law where: (1) landowner is entitled to
possession; (2) landlord uses peaceable means to reacquire possession. (Modern Trend is that
self-help is never okay. The modern trend of “no self-help” is not applicable to commercial
tenants. Landlords now, may use self-help for commercial tenants.)
 Williams v. Ford Motor Credit Company (1982): π and her husband divorced and she got the car but he
had to pay for it. He stopped making payments and was warned it would get repossessed and he said they
could repossess it.
o Holding: Breach of Peace is not the same thing as a risk of a breach of peace. There needs to be
actual violence.
o Rule: You’re allowed to use self-help as long as there is no actual violence.
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D. Limitations on The Right To Exclude

 Common thread that links exceptions is that the stakes are high and could be burdensome to society.
When stakes are hig there is a government strategy that states say what the land will be used for.
 Necessity: necessity justifies what would otherwise be a trespass When what’s at stake is loss of life, the
necessity doctrine has great force.
o Some ways necessity works: (1) the alleged trespasser was faced with a choice of evils and chose
the lesser evil; (2) the trespasser acted to prevent imminent harm;(3) the trespasser reasonably
anticipated a causal relationship between their conduct and the avoidance of harm; and (4) there
were no legal alternatives to violating the law of trespass.
o the condition of necessity is a privileged entry to land (note: the requirements for trespass include
“non-privileged entry) and as justification for what would otherwise be trespass
o the fact that the privilege of necessity may be complete or incomplete (incomplete when the
intruder is responsible for damages he caused; complete when there is a threat to life)
o Necessity is an incomplete privilege. The person entering onto another’s property for
purposes of necessity are liable for any damages incurred to the property which he is using.
 Policy can limit a persons right to exclude
 Legislature can override custom- whether custom might not have legal force is if the legislature decides it
was a bad custom
 Ploof v. Putnam (1908): The guy and his family were on a boar in a storm so they moored to the other
guys dock and the dock owner cuts them free destroying the boat and injuring the family.
o Legal Issue: Is the dock owner allowed to cut the unwanted moore-ers free when they are using
his dock out of necessity?
o Holding: No. Necessity justifies actions that would normally be seen as a trespass.
o Rule: Necessity justifies entry of someone else’s property that would normally be trespass.
 Vincent v. Lake Erie Transportation Company (1910): The boat moored to the dock out of necessity and
damaged it
o Legal Issue: Is the party acting within the privilege of necessity liable for damages incurred to the
others property?
o Holding: Yes. While they are allowed to use the dock out of necessity, they are liable for the
damages to the dock because the damages they avoided would have been greater.
 McConico v. Singleton (1818): Even though π told him not to, Δ went onto his unenclosed and
unimproved land and hunted a deer.
o Legal Issue: Does someone avoid liability for trespass where the land is unenclosed and
unimproved and the landowner tells them not to enter?
o Holding: Yes. Hunters are permitted to hunt on unenclosed and unimproved land.
 State v. Shack (1971): Two men entered private land to aid a migrant farm worker. They refused to leave
when the owner told them to.
o Legal Issue: Does trespass on real property include the right to bar access of governmental
services available to migrant workers?
o Holding: No. The title of real property does not control the destiny of people the owner permits to
come onto the property. Their wellbeing is the paramount concern of the law.
o Rule: Trespass does not include a situation where representatives of recognized charitable groups
enter private land in order to provide government aid to workers that need it. (States are high).
 Uston v. Resorts International, Inc. (1982): Casino wanted to exclude a card counter.
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o Legal Issue: Does a recreational place have the absolute right to exclude any unwanted person
from the premises?
o Holding: No. When property owners open their property to the public use for their business, then
they cannot exclude people unreasonably.
o Rule: A person has a right of reasonable access to property open to the public as long as the
person does not threaten the security of the premises and his actions do not disrupt the regular and
essential operations of the premises (stakes are low).
 Shelley v. Kraemer (1948): Owners of a store would not sell property to African Americans. They
wanted a covenant for all the homeowners there not to sell their property to African Americans.
o Legal Issue: Whether a racially restrictive covenant is judicially enforceable
o Holding: Racially restrictive covenants are unenforceable because it violates equal protection.
Enforcement of racially restrictive is state action and it violates 14th amendment.
IV. Relinquishing Sovereignty
A. Ways to Get Rid of Property
 Ways to get rid of property:
o Abandonment
o Destruction
o Transfer
 Eyerman v. Mercantile Trust Co. (1975): Old lady dies and in her will she wanted to have her house
demolished. People in the neighborhood wanted an injunction so the house would not be knocked down
because it was a nice house.
o Legal Issue: Whether the demolishion of the deceased’s house would violate public policy
o Holding: It violated public policy because no one would benefit from it and the neighbors would
be harmed. The property value was worth must more with the house on it, it would cost the
neighbors property value to decrease, and replacement costs would be very high.
B. Abandonment
 The parting of possession to no one in particular, with no intention to resume possession in the future.
o You abandon property when you return the personal property to the public domain.
 You can abandon personal property with (1) voluntary relinquishment of the property (often
through nonuse); AND (2) an act demonstrating a clear and unequivocal intent to abandon.
o The most common social signal is to place the property on public property, although this is not a
requirement- you can abandon property on someone else’s land as well.
 Abandonment is an option only for real and intangible property.
 Have to demonstrate that you are relinquishing your rights to the property.
 Common Law Requirements:
o (1) intention to not resume possession (subjective)
o (2) Act of Abandonment (objective- social signaling)
 Statutes sometimes remove the intention requirement; need only to show act of abandonment
 Abandonment v. Bailment
o Abandonment has no intention to reclaim at a later point in time.
o Justification:
 (1) law doesn’t like stupid behavior- discourages waste
 (2) balancing efficiency v. autonomy
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o Against:
 (1) history: law has always allowed freedom in doinf what you want, absent nuisance or harm
 (2) abandoning and destroying are primary sticks in the bundle of rights- right to abandon,
right to destroy
 (3) efficient for letting people handle their own property.
 No abandonment for real property because no system for public to claim it (you need intent AND
actual abandonment)
o Land specific justification:
 (1) no established way to actually abandon property
 (2) hard to ID new owner after its abandoned
 (3) abandoning would seem to spread the negative value from the owner to society at large
o Policy: the kind of property abandoned would be valueless so if abandonment of real property
were allowed it would give people incentives to abandon it. As a society, we want people to
internalize the problem and fix it. Abandoning property could bring down property values of other
people’s property in the neighborhood. (Personal property and real property are different because
personal property doesn’t have a community effect).
 Pocono Springs Civic Association, Inc. v. Mackenzie (1995): Δ wanted sell vacation property that had no
septic system and couldn’t. Δ decided it was worthless and wanted to abandon it but had to pay
homeowners association fees and property takes. Δ said that he didn’t have to pay homeowners
association fees because he abandoned it and it was the states property now.
o Legal Issue: Was the actions of Δ sufficient enough to constitute abandonment so the homeowners
association fees were not due?
o Holding: To abandon property you must relinquish all right title and claim to possession with
intention to terminate ownership. Other actions to disassociate from the land will not be enough.
o Rule: You can’t abandon real property.
C. Transfer
 Transfer:
o (1) enhances autonomy- no longer stuck taking care of property
o (2) promotes efficiency- allow for mutually beneficial exchanges. Helps society maximize wealth.
o (3) enhances powers of owners- they can choose who the successors are (who inherits the
property)- some think this is bad because it makes wealth stay in one family perpetually.
 Two Types:
o Quid pro quo (exchange)- an owner relinquishes title to some owned thing in exchange for a
reciprocal transfer of some other thing.
o Gifts- an owner relinquishes title to some owned thing in favor of anoher without explicitly
receiving or expecting to receive something in return.
 Elements of the transfer of property
o It is sometimes necessary to restrict the autonomy of current owners in order to preserve the rights
of future owners. One expression of this is the doctrine of unreasonable restrain on alienation
another is the statute of frauds
 For example the statute of frauds restricts the power of current owners to sell, devise, or lease
property- they cannot do so by oral or unsigned agreement with the exception of short term
leases. This makes it easier for others in the future to sell., devise or lease property because
the costs of figuring out the state of title is lower (because contracts are in writing.)
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o The delivery requirement- transfers are only recognizes if the property or evidence of title to it is
delivered.
o The right to transfer is also considered a fundamental attribute of owner sovereignty
o The right to transfer enhances owner autonomy due to gatekeeper status: can shed things that no
longer suit the owner’s wants or needsand can acquire other things that may be better suited to the
owner’s wants and needs.
o The right to transfer has a powerful efficiency justifications:
 Free transferability: permites thins to be reallocated from one person to another to allow
those who place a high value on the asset end up in control of it
 Although this state of transferability is tough to attain, this state is easier to achieve if transfer
costs are lowered.
 In general, transfer is good so property law protects it
 Alienation: An absolute restriction on transfer is VOID- Inalienable. (An owner may not transfer
property to another on condition that the transferee will not retransfer the property.)
o Other restrictions on transfer are disfavored but not automatically void all together.
o If you cant transfer land for a limited time- courts sometimes allow that
o Certain things you can’t sell or transfer
o Reasonable + limited restraint may be valid
o Types of Restraints:
 disabling restraints: denying ability to transfer (always void)
 forfeiture restraint: if transferee tries to alienate property forfeited (usually void)
 promissory restraint: Contract promises not to alienate (often void, but sometimes upheld)
 Statute of Frauds- all transfer of real property MUST be in writing (commonly said to enhance
transferability)
o Exception: short term lease and Louisiana State
 Delivery Requirement: the law only enforces transfers when the thing itself or the deed is delivered.
o Rule: any gift does not transfer the property without an actual delivery
 Reasoning: to avoid fraud and show clear intent.
 Gifts Causa Mortis (gift in contemplation of death.) Elements:
o (1) the gift must be made in light of the impending death of the donor;
o (2) the donor must die of the peril or disorder which creates the basis for the impending death;
o (3) There must be delivery of the thing given;
o (4) the donor must be competent to make the gift;
o (5) there must be an intent on the part of the donor to make the gift; AND
o (6) there must be an acceptance by the donee.
 Bailments: temporary transfer custody of property.
 Irons v. Smallpiece (1819): the father told his son that he was offing to give him two colts, but then he
died and the cults were never delivered.
o Legal Issue: Does a verbal promise alone transfer property?
o Holding: No it was not a valid gift because there was no delivery.
o Rule: In order to transfer property as a gift there needs to be an actual delivery
 Foster v. Reiss (1955): Wife before death wrote a note to her husband directing certain money. Under her
will, the husband would not have received any of it. After she died the executor of her will sued to
recover the property.
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o Legal Issue: Was there a valid gift causa mortis?

o Holding: No.
o Rule: The doctrine of gift causa mortis is subject to strict requirements including delivery which
is necessary to limit doctrine because it intrudes on the statute of wills.
 Gilbert v. McSpadden (1936): Parents executed and acknowledged a deed conveying two tracts of land to
their two children and another deed conveying two tracts of land to their daughter. The deeds had
consideration of $1 and love and affection. The father kept the deeds in his possession and continued to
dominate the land. He went to take the deeds to his daughter and when he got there he went to sleep and
died in his sleep without delivering the deeds.
o Legal Issue: Did the actions constitute a delivery because he intended to deliver the deeds?
o Holding: No because he did not part with the possession of the deed for the benefit of the grantee
so his intent was immaterial.
o Rule: Delivery may be effected by any act or word manifesting an unequivocal intention to
surrender the instrument so as to deprive the grantor of all authority over it or of the right of
recalling it; but if he does not evidence an intention to part presently and unconditionally with the
deed there is no delivery.
D. Bailments
 Bailor: relinquishes possession of the property temporarily
o Bailor’s rights:
 Action for damages or return (breach of K, conversion, replevin, damages, etc.), depending on
the situation
 Bailee: temporarily receives possession from the bailor.
o Bailee’s rights:
 Exclusive right to possess the item, and may bring actions against 3rd parties who interfere
with his possession (if the bailor gives a gratuitous property, then the bailee cannot bring
action against the bailor)
 Any intentional and unauthorized use would render the bailee liable
 Limited rights to use: only use in the express or implied manner agreed to with the bailor.
 Transfer of possession and control of personal property for a specific purpose.
 Bailment are inherently contractual.
 Requirements:
o Express or Implied Contract (id implied, must intend to exercise control)
o Delivery: actual or constructive (ex. Giving keys to a parking attendant)
 Actual delivery- where the bailor actually gives the property to the bailee
 Constructive delivery- Ex. Giving the bailee a key to safety deposit box or a car.
 Symbolic Delivery- a written document
o Control: must have complete control
 Possession means: (1) Physical control over the chattel; AND (2) the intent to exercise that
control
 Possession and control are the keys in demonstrating that a bailment has been creative.
 Different Approaches for Duty of Care:
o If custody of the thing is put in the custody of the bailee for the sole benefit of the bailor, they’re
only liable for Gross Negligence. If the custody of the thing is but with the bailee for the sole
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benefit of the bailee, they are liable for slight negligence. If the transfer of custody is mutually
beneficial for the bailee and bailosr, the bailee is only liable for ordinary negligence.
o Bailees must take reasonable care on bailments always regardless the category of the bailment.
Stricter duty of care to protect against mis-delivery.
o Misdelivery of goods- strict liability on theory that this constitutes conversion. Courts tend to be
stricter about bailee’s who misdeliver goods-when they turn the goods over to someone other than
the true owner- than they are when the goods are lost, stolen, or destroyed.
o Involuntary Bailment: no duty to take affirmative steps. If bailee does take action, he is usually
held to at least a standard of slight care.
 Takes more than just touching the thing to go from involuntary to voluntary.
 If the property is damaged or missing, the burden shifts onto the bailee where he has to prove that
whatever happened to the property was not due to their negligence.
 Bailee cannot negotiate to eliminate all liability that would be against public policy
 Bailment v. Licenses:
o Bailments give much more rights- bailor is giving the right to possess, the right to control, and the
right to exclude (more aligned with basic property rights) whereas the licensor is giving the
licensee a privilege to enter a land- there is no transfer or the right to exclude.
 Terminating a Bailment- MUST establish constructive redelivery
 Allen v. Hyatt Regency-Nashville Hotel (1984): π parked his car in a single entrance/exit parking garage
because he thought it would be safer than parking it on the street. Π car got stolen. The parking garage
had security, and was inside and enclosed.
o Legal Issue: Does parking in a parking garage create a bailment?
o Holding: Yes. More than just a license or hiring of a space to park a vehicle, unaccompanied by
expectation of protection or other obligation upon the operator of the establishment.
o Δ had a greater duty to protect the cars in the parking garage because it was attended, had security,
was inside, and enclosed.
 Cowen v. Pressprich (1922): π agreed to transfer and deliver bond to Δ. The runner who took the bond
never showed up and the bond disappeared. Π sued Δ for conversion for wrongful delivery of the bond.
o Legal Issue: Was it a voluntary bailment? What duty of care is owed?
o Holding: Δ had an absolute duty of care.There was a voluntary bailment (the bailment was taken
voluntarily) because it was only temporarily involuntary when it was in the slot, but once Δ picked
it up it became voluntary.
o Rule: Delivery to the wrong person is not capable of being excused regardless if the bailment was
voluntary or involuntary. Voluntary bailments have an absolute duty to return the item.
o This case was overrules and the dissent was adopted: this is an involuntary bailment. Just
because they picked it up it wasn’t voluntary. He was in no obligation to receive it he was just
trying to get rid of it. The deliver slot was only an invitation to deliver the correct bonds but they
weren’t inviting the wrong bonds in. Given that it was involuntary, you can’t impose obligations
on them. Involuntary bailees do not have liability so long as the involuntary bailee used
reasonable means to return the thing. Reasonable care standard. Here, they didn’t exercise
reasonable means to return the item because they could have used a runner they knew instead of a
random one.
E. Licenses
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 A temporary and revocable waiver of an owner’s right to exclude. It gives permission to enter and do
something on real property owned by someone else.
 Think: similar to necessity because both provide a privileged entry to land.
 Merely a privilege to enter the land.
 A license takes what would otherwise be a trespass and by conferring privilege, turns a trespasser into an
invitee, a guest who is carrying out some limited task or making some limited use of the real property. If
the invitee has authority to do something that would otherwise be unlawful. With a license, their actions
are now justified because a license is not an interest in land, it cannot be assigned or transferred.
 It does not pass with title to the property, it expires upon the death of either party and it only binds the
parties- the licensor and the licensee. If the licensee, the holder of the license, exceeds their permission to
make limited use of the real property they become a trespasser.
 Licensor can freely revoke it if: (1) he first gave proper notice for the licensee to leave; AND (2)
enough time passed during which he might have conveniently gone away.
 Creation: (1) written; (2) implied; (3) oral. Not subject to statute of frauds because it does not give the
licensee an interest in the land.
 Limitations:
o (1) not assignable or transferrable by the licence
o (2) expires upon the death of either party
o (3) can only occupy property as far as needed to do the licensed act
o (4) meaning the scope of the license is important
 License is inherently limited
 Freely revocable at any time unless:
o (1) rendered irrevocable by estopple
o (2) a blanket license to enter property is subject to duties of public accommodation
o (3) a license is coupled with an actual property interest (a grant)
 Reasoning for revocable licenses- a ticket does not create a right in rem, it is merely personal, it does not
convey the right to exclude others, it is not a conveyance of property interest and therefore the holder of a
ticket does not have the right to resist eviction using force.
 Modern Rule- license becomes IRREVOCABLE when it is license + a grant (interest in property)
because then the license is interpreted in court as an easement and not a license at all.
o Trend is to more easily find grants in licenses
o Courts merge: law and equity. Consider the expectations of the parties
o Estopple: (1) implied license by a place of public accommodation that has a common law duty not
to revoke; (2) when licenses couples with an interest.
 Remedies: if (1) license is freely revocable; AND (2) proper ejectment
o Breach of K, no right to self-help (like resisting eviction) because you have no rights in rem
o Modern remedies when a grant is found: π has a right to specific performance (ex. To see the show
not just to get reimbursed for the ticket).
 License v. Easement
o The license is generally not considered to be an interest in land
 It is viewed as a personal privilege, usually temporary in nature
 Ex. A party guest who enters a home does not acquire any right to the land; rather a guest
has only temporary permission to enter home for limited purpose of attending party.
 Statute of frauds do not apply to the license- they can be created orally.
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o Licensor may revoke a license at any time

 It is automatically revoked if the licensor dies or conveys title of the property to anoter
 License may become irrevocable due to estopple
 License coupled with interest is similarly irreovocable
 Ex. Is A purchased truck from B, A has an irrevocable license to enter B’s land to retrie
the truck
 Easements are in comparison interest in land and require stricter guidelines on how they are
formed.
o How to decide what arrangement you’re dealing with:
 Intent of the parties
 The language used
 The circumstances under which it is being used.
o Clues:
 if the language is part of a conveyance of real estate, it is likely creating an easement.
 If the right created if for use of a particular portion of a parcel it is more likely to be an
easement.
 If the right is necessary for use and enjoyment of the property that you are about to acquire it
is more likely an easement.
 If it exists in perpetuity it is an easement. If it is created to benefit you successors and assigns
is is an easement.
 If you pad a substantial consideration to acquire (as opposed to in reliance on) the right it is an
easement.
 Wood v. Leadbitter (1845): π went to the race horses Δ asked him to leave but he refused. Δ had him
removed. Π sued for assault and false imprisonment.
o Rule: Licenses can be revoked freely if: (1) the person was given proper notice to leave; (2)
enough time past where the person could have conveniently gone away.
o Holding: π was only the holder of a license granted by Δ and Δ had the right to revoke it at any
time.
V. Law of Neighbors
A. Servitudes
 Limited, durable, lasting transfer of property
o Dominant View: property rights are a “bundle of rights”- property ownership gives series of
property tights and things. Even if they give some or gain some they still have a bundle. Property
rights are not a fixed set of rights.
o Revisionist view (in rem property theory): property is not a bundle it’s a particular thing.
 Under certain circumstances, once with the land they bind subsequent owners of the property even if they
weren’t part of the orgininal agreement
 One way of transferring individual elements of a bundle of property rights- sometimes by agreement and
sometimes in other ways.
 Two Kinds: Easements and Covenants
o Covenants are more of a governance mechanism; more often easements prescribe affirmative
behavior on the part of the burdened landowner.
o Appurtenant easements always run with the land; covenants sometimes run with the land if certain
conditions are met
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o Easements have always been considered a kind of property right; covenants are usually spoken of
as “promises respecting the use of land.
 Easement: functionally like a contract in which owner agrees to waive his or her right to exclude certain
kinds of intrusions by another, and give the other a right to use. Waivers to the right to exclude.
o Convey rights to a particular use of the property (Different than a lease) (Ex. Billboard- cant play
movie on it its for advertisement.
o Possible to create an easement to only last a certain amount of time
o Two types of Easements:
 Appurtenant Easement: belongs to another parcel of land. Enhances the use and enjoyment
of the dominant land to the detriment of servient land (ex. Right to cross someone else’s land.)
 Servient Tract- easement is a burden
 Dominant Tract- easement benefits them.
 Easement belongs to the Dominant Tract of Land.
 If it contributes to use and enjoyment of the land courts usually find its Appurtenant
 If courts can’t figure out intent or if it contributes to the use and enjoyment courts will
say its Appurtenant
 Belongs to the land
 Easement in Gross: agreement to use the other persons land for a particular use.
 Easement belongs to party who owns the servient tract of land.
 Only transferrable sometimes- most courts don’t allow recreational easements to transfer.
 Can be transferable if commercial.
 Belongs to the person not the land
o Easements mostly need to be in writing because its land (Statute of Frauds)
o Easements can be created by grant or reservation
o The intent of the parties determines the type of easement
o Easements can be created expressly or by law.
o Express Easement- must be in writing, identify the parties, describle the dominant and servient
land, describe the exact location of the easement, explain the purposes of the easement, and be
recorded with the regisitry of deeds
 can be by grant or by reservation
o Types of easments:
 Reservation- selling a piece of land but holding back a piece of that land as an easement that
burdens the buyer
 Granted- written into a sale of property, lease, etc. Could be entered into by contract.
 Implied- protects people from buying land and not having access to it. Where there is a
previous open use that remains reasonably necessary for continued use and enjoyment of the
property. Must be an obvious use prior to the subdivision of the property.
 Necessity- avoid having useless property. ½ of states allow easement by necessity and the
person that benefits from the easement has to compensate the burdened party fair market
value. Show that one of the parcels is land locked and they need the easement to access it.
 All the plots must have originally been owned by the same person or entity before
subdivision
 Dividing the property did not preclude the severed portion from getting to the road
 The portion that was subdivided was landlocked (no access to the road)
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 Geographic barriers alone do not create an easement by necessity as long as you can
get through with reasonable expense.
 Prescriptive- no exclusivity requirement. 4 requirements: (1) open and notorious; (2)
continuous and adverse; (3) uninterrupted statutory period; (4) definite and certain line of
travel.
 By estopple- a revocable license to enter real property, then reliance in good faith on that
license- usually requiring substantial expenditure (physical improvements or significant
costs). Then licensor for a certain passage of time for an easement by estopple to be created.
 Negative- disallows neighbors to do things they would normally be allowed to do.
 Mostly done by covenants
 Allows benefiting parties to disallow things on the servient property that interferes with
(1) sunlight falling on windows (not pools, grass, etc. only windows); (2) flow of air in a
defined channel; (3) flow of water in an artificial channel; (4) removing lateral support of
buildings.
 Spite fences are not allowed- if the sole purpose for putting up a fence is to bother your
neighbor, they are not allowed.
o Affirmative v. Negative Easements:
 Affirmative easements: permit the easement holder to perform some affirmative act on the
land or another. Permitting action on the serviant tract that would otherwise be trespass or
nuisance. Virtually all easements are affirmative easements.
 Negative Easement: Permits the easmenet holder to demand that the owner of the servient
tract desist from certain actions that harm the easement holder.
 In practice negative easements are done as covenants.
o Public v. Private Easements
 Public Easements: authorizes the general public to use land for designated purposes. Public
access rights for recreational purposes are more likely to be held as public easements.
Sometimes the public holds negative easements
 Private Easements: authorizes specific named parties to use land for designated purposes
o Termination of Easements:
 (1) Termination:
 By deed- can pay the owner of an easement to end it
 By merger- if dominant and servient tracts both come into the ownership of one person
 Adverse Possession
 Implied abandonment through non-use- not using the easement and cleary doing
something that manifests intent to abandon easement
 Change of circumstances- generally no, only if specific use no longer exists
 Condemnation: when the government condemns the servient property (ending the
easement, but triggering a requirement to pay the holder of the easement just
compensation)
 Estopple: when the easement holder announces they will no longer make use of the
easement, the servient owner substantially changes their position in reasonable reliance on
the claim.
 Release: holder of the easement executes and delivers a writing that complies with the
statute of fruads.
 On its terms: If its for a specific amount of time
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 Prescription: when the servient owner would have to block use of the easement in an
adverse, continuous, open and notorious manner for the prescriptive period.
 (2) Misuse- doesn’t automatically terminate the easement- misuser can fix the misuse/
additional burden and they can keep it. If it’s impossible to fix then the easement is
terminated.
o Baseball Publishing Co. v. Bruton (1938): π controlled a billboard and contracted it out to
advertisers. Δ owned the building. Π paid Δ to be able to have the billboard on his building, Δ sent
checks back. Δ took down a sign.
 Legal Issue: What was the legal character of the agreement?
 Holding: An easement in gross was created (agreement to use part of someone else’s land for
a specific purpose).
 Rule: Where parties agreements create an easement in gross, specific performance may be
granted.
o Schwab v. Timmons (1999): π owned two parcels that were cut off from the road, but he used to
own one that was not cut off from the road. Π wanted an easement to the adjacent parcel to get
access to the road.
 Legal Issue: Are the entitled to an implied easement?
 Holding: No, because the private road they wanted to extend had never before been extended
to neighbors property.
 The petitioners themselves conveyed away access to the road.
o Holbrook v. Taylor (1976): Δ gave minors permission to cut a road across his property and they
paid him. Π bought the adjacent property and built a house there getting permission to use the road
to build the house, even after it was built he continued to use the road and improved it. Several
years later Δ wanted π to pay him for using the road.
 Legal Issue: Whether π was entitled to a prescriptive easement.
 Holding: No prescriptive easement, but Δ is estopped from not allowing π to use the road as
an irrevocable licence.
 Rule: Requirements for a prescriptive easement: (1) Open use; (2) peaceable use; (3)
continuous use; (4) claim of right adverse to owner; (5) without owners knowledge and
agreement. A licence by estopple can be created by licensor’s consent, along with licensee’s
construction of various structures and repair to the land in question.
o Warsaw v. Chicago Metallic Cellings Inc. (1984): Warehouse had a small driveway- too small for
large trucks to turn around- so they were turning around on the corner of the adjacent property. Δ
wanted to put a warehouse several years later on the south side of their land which would
effectively block trucks from turning around on their land.
 Legal Issue: Was an easement created?
 Holding: Yes, a prescriptive easement
 Rule: For a prescriptive easement, the party that is claiming the easemesnt must show: (1) the
use of property which has been open and notorious; (2) continuous and adverse, (3) for an
uninterrupted period of 5 years; (4) definite and certain line of travel
 Δ could have avoided creating an easement by posting a sign that said they had
permission to do it under the control of the owner. (There are several things that can be
done to prevent a prescriptive easement).
o Fontainebleau Hotel Corp. v. Forty Five Twenty Five, Inc. (1959): Δ wanted to build their hotel up
and it blocked the sun bathing area of π hotel during the winter months.
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 Legal Issue: Can you get a negative easement for blocking sun from sun bathing areas?
 Holding: No.
 Rule: No states common law allows prescriptive easements for light. We cannot create a
negative easement by prescription in US.
o Penn Bowling Recreation Center, Inc. v. Hot Shoppes, Inc. (1949): Δ said that π misused the
easement by using it for more than it was intended.
 Holding: Exceeding the scope of an easement is not enough to end the easement.
 Covenant: a contract in which an owner agrees to abide by certain restrictions on the use of his land for
the benefit of others. Commit owners to do/ not do certain things to benefit their neighbors. (Ex. Not to
build ugly structures or use clothes lines or to pay homeowners association dues.)
o Two Types- The type of the covenant are determined by the remedy sought
 Real Covenant- Money Damages
 Equitable Servitude- Injunction
o Purely by contract- had to be in writing and statute of frauds generally applies
o Enforcement:
 Money damages- Real Covenant
 Injunction to compel person to comply with covenant- Equitable Servitude
o Analysis: (1) draw out the parties- benefited parties (trying to get other party to do or not to do
something) and burdened parties; (2) what kind of relief?; (3) run with the land analysis
o Two theories for allowing promises respecting use of land to run with the land:
 (1) Asks whether the promise is enforceable aainst successors as an “equitable servitude”
 (2) Asks whether the promise is enforceable against successors as a “real covenant”
 The critical factor in determining which theory applies is the relief sought.
o The Burden runs with the land when: WITHN (Real Covenant) (all of them)
 Writing- Original Agreement has to be in writing
 Intent- The parties needed to intend for the burden to run
 Touch- The burden must touch and concern the land
 Horizontal AND Vertical Privity
 Horizontal: grantee, grantor; lessee, lessor; mortgagee, mortgager. *just being neighbors
doesn’t give horizontal privity
 Vertical: any non-hostile relationship between A1 and A2 (adverse possession would be
hostile) complete recession of estate- has to last the same amount of time for A2.
 Notice- Notice is required and can be either actual or constructive
o The Burden runs with the land when TWIN[ES] (Equitable Servitude) (all of them)
 Touch: Touch and Concern the land
 Writing: needs to be in writing. except: common plan doctrine
 Intent: needs intent to bind successors
 Notice: burdened party must receive notice before buying
o The Benefit runs with the land (Real Covenant) when (all of them):
 Writing
 Intent
 Touch and concern
 Vertical Privity
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o Privity Benefit
A1 B1
Benefit Horizontal Privity Burden

Burden
Vertical Privity Vertical Privity
A2 B2

A3 B3
Real Covenant Requirements v. Equitable Servitude Requirements (To Run With The Land)

  Real Covenant Real Covenant Equitable Servitude Equitable Servitude

  Burden Benefit Burden Benefit
Writing Yes Yes Yes Yes
Intent Yes Yes Yes Yes
Touch and concern Yes Yes Yes Yes
Horizontal privity Yes No No No
Vertical privity Yes Yes No No
notice Yes No Yes No

o Affirmative Covenant: requires you to take certain action on your land like repair a building or
pay homeowners association dues.
o Termination of Covenants:
 Agreement to end
 Expiration date
 Courts can terminate them if the circumstances change
 Abandonment
 (1)
 (2)
 (3)
o Tulk v. MoxHay (1848): π sold property with the restriction that it remained for public pleasure via
covenant. The covenant said that for all subsequent landowners the land would be maintained as a
square garden. 40 years later Δ wanted to build stuff on the land π sued for injunction.
 Legal Issue: Can a covenant restricting a property to a specific use be enforced against a
subsequent purchaser?
 Holding: Whether it was meant to run with the land or not, it can be enforced against
subsequent purchasers because they were aware of the covenant before purchasing the land.
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 Rule: Since a covenant is a contract between a vendor and a vendee it can be enforced against
subsequent purchasers who have notice of the contractual obligation of the vendor regardless
of whether it runs with the land.
o Neponsit Property Owners’ Association, Inc. v. Emigrant Industrial Savings Bank (1938): π
property owners association sought enforcement of a covenant that was meant to run with the land
despite not owning any of the land that is benefitted from the covenant.
 Legal Issue: May a π, although not an original owner or covenanter of any part of the land
benefited by the covenant, enforce the covenant?
 Holding: The Association may enforce the covenant despite not being an owner of any of the
property that benefits from the covenant. This is a departure from the strict requirements of
privity.
 Rule: For a Covenant to run with the land it needs (1) grantor and grantee to have intended it
to run with the land; (2) must touch and concern the land; (3) must have privity between party
claiming the benefit and the party burdened by the covenant.
o Sanborn v. McLean (1925): subdivision planned for residential purposes. Developer sold lots with
deeds containing covenants to restrict use of the lots to construct only residences, but sold a lot
without such restriction. Δ eventually bought that lot and wanted to build a gas station and π
wanted to stop them.
 Legal Issue: If the restriction is not in the direct chain of title, will a purchaser of real
property be bound by the title for neighboring sub divisions?
 Holding: Yes because there was a common plan when the lots were sold the remaining land
became subject to a reciprocal negative easement so they cant do anything the prior owners
couldn’t do. Δ was under constructive notice because of the nature of the area.
 Rule: A recipricol negative easement is attached to all lands sold in a common development
scheme, and even though the restriction is outside of the direct chain of title, subsequent
buyers will be assumed to have constructive notice because of their duty to check the title of
neighboring lots.
o Bolotin v. Rindge (1964): π owns an unimproved lot which was a subdivision of a larger lot from
years before. All the lots have covenants that construction on them are for single family residences
that have to face a certain direction. Only 4 lots remained unimproved.
 Legal Issue: When should a court refuse to enforce deed restrictions?
 Holding/Rule: A court should refuse to enforce deed restrictions (equitable servitudes) when:
(1) by reason of changed conditions, enforcement of the restrictions would be inequitable and
oppressive and would burden π without benefiting adjoining owners; (2) when changed
conditions in the neighborhood have rendered the purpose of the restrictions obsolete.
o Peckham v. Milroy (2001): Milroy moved into mothers house with her 5 children and obtained a
license and started running a day care out of the house. The covenant was not to have any
businesses there. Other people also violated the covenant.
 Legal Issue: Is a covenant abandoned when some people the covenant affects violates it?
 Holding: No. Just because people have broken the covenant does not mean its abandoned.
 Rule: For a covenant to be abandoned prior violations need to be habitual and substantial and
the prior violations have eroded the general plan.
B. Nuisance
 A’s use is not compatible with B’s use.
 Makes one person’s use of the property less enjoyable because of another party
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 Private nuisance: a substantial and unreasonable interference with the private use and enjoyment of
another’s land.
o Conduct is (1) intentional and unreasonable; (2) negligent or reckless; or (3) results in an
abnormally dangerous condition or activity in an inappropriate place
o A private nuisance is one affecting a single individual or a definite small number of people in the
enjoyment of private rights not common to the public.
 Public Nuisance: affects the rights enjoyed by citizens as part of the public. To constitute a public
nuisance, the nuisance must affect a considerable number of people or an entire community or
neighborhood.
 Requirements for Nuisance:
o Intentional
o Non- trespass
o Substantial
o Unreasonable
o Interfere with the usage of another’s land
 Locality rule: A nuisance could be the right thing in the wrong place like a pig in a parlor and not a
barnyard.
o Think about what’s going on in the neighborhood where the activity in question is occurring.
 Nuisance per se- activity that qualifies as nuisance wherever it is always
 Nuisance accidens- activity that might be okay somewhere but not everywhere
 Coming to the nuisance- most courts say no, but sometimes accepted
o Argument Against: person who buys near the nuisance gets a lower price so why should they get
a good price and relief?
o Argument for-Person who sells land should be able to pass nuisance claim on so they an get a
higher price.
 If you don’t sue fast enough they could get a prescriptive easement
 For nuisance, you must show an actual and substantial injury and traditionally you have to pass a
balancing test based on the value of the activities in question (the balancing test goes with the square
chart that looks like a Punnett square)
 Nuisance requires substantial harm
 Nuisance requires unreasonable interference.
 4 Tests to Distinguish between Trespass and Nuisance
o (1) Where did the act in question occur? On Δ land or on π land? If its on π land, it’s probably
trespass and if Δ’s land its probably nuisance
o (2) direct or indirect harm? Direct probably trespass; indirect probably nuisance.
o (3) invasion by something tangible or intangible? Inidividually visible to the naked eye judges
tangibility. Tangible- trespass; Intangible- nuisance
o (4) did they lose possession or enjoyability? Possession- trespass; enjoyment- nuisance.
 Nuisance v. Trespass
o Trespass protects interests in possession of the land, while nuisance protects the use and
enjoyment of the land.
o Nuisance protects use and enjoyment while trespass protects the right to exclude.
o Nuisance requires substantial harm while trespass requires no harm
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o Nuisance requires unreasonable interference while trespass reasonableness is irrelevant (except

necessity)
o Intangible trespass is nuisance not trespass.
 Coase Theorem:
o Nuisances are problems of reciprocal causation- both parties cause nuisance. If all we care about is
wealth in society, then _________
o Whichever party is stopped is harmed. There is no way to avoid harm so decide for the party that
would be harmed the least.
o 4 assumptions:
 Everything can be compensated with money
 All actors are rational least cost avoiders
 Bargaining is costless
 We don’t care about equal distribution of weatlth
o Only works on the assumption that bargaining is costless and they can do it which isn’t realistic. If
they cant bargain, it should be least cost avoider- whatever will cost society the least.
o Rational self interested people bargain with eachother to rid themselves of the harm to get to the
cheapest solution.
o Goal: low transaction costs so bargaining is possible.
 Calabreze
o The law wont compel people to take money in exchange for something they own
o Who has the entitlement? How should those entitlements be protected.
 Protected by property rules
 Protected by liability rules differences in who sets the price of changing entitlements
 Inalienable entitlements
o Property rule typically associated withentitlement
injunction isn’t transferable
 You get injunctive relief if you are trying to avoid irreparable injury or a multiplicity of
suits.
o Liability rule objectively determined value- paying a value set by some third party
o Deciding who has entitlement- who should win?
 (1) efficiency- maximize wealth
 (2) distribution of wealth
 (3) other justice considerations.
Assignement Property Rule Liability rule
of entitlement
(Who Won)
π Pile v. Pedrick Golden Press v. Rylands
Campel v. Seamen Boomer v. Atlantic Cement Co.
Rule 1 Rule 2

Δ Hinman v. Pacific Air Spurr v. Del Webb

Rule 3 Rule 4
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Injunction (Generally) Money Damages Determined by third party

(the court)

 Adams v. Cleveland- Cliffs Iron Company (1999): mining operation generated a lot of noise and dust all
the time. The mine expanded three times and they also own another mine and are the largest civilian
employer. Π sues for trespass claiming there was an aggravated need to clean and fix their homes from
damages caused by explosions and they were suffering from nervousness, sleeplessness, and diminished
resale values.
o Legal Issue: Does Trespass include intangible invasions?
o Holding: Trespass does not include intangible invasions. They are nuisance claims not trespass.
o Rationale: Noise and vibrations are not tangible. Dust is not normally a source of significant
physical intrusion. If there were a huge amount of dust there could have been a nuisance claim,
but they were talking about trespass and a small amount of dust is not tangible enough for
trespass.
o Rule: For a trespass there needs to be incursion by a tangible object AND that incursion must be
direct (no intervening force). Directness is satisfied by any means the Δ knew or should have
known would have resulted in an invasion of the π land (knowledge to a substantial certainty)- if
satisfied π gets nominal damages no matter how minimal the damages actually are.
 Campbell v. Seaman (1876): Δ owned land immediately south of π and used it as a brick yard. When π
bought the land Δ was not burning bricks there. Δ was on and off burning bricks. Π started building a
house on his property and a year later Δ started burning bricks again and the fumes went over onto π
property when the wind blew that way and only sulfuric acid gas two days of each cycle. In the
surrounding neighborhoods others used the same coal (anthracite coal).
o Legal Issue: Is there a legal Nuisance? What is the remedy?
o Holding: Yes there is a legal nuisance. Π is entitled to injunctive relief because recurring injury
would cause irreparable harm.
o Rule: General Principle, every person may exervise exclusive domain over his own property
and may use it as would be serve their private interests and is only limited by “use what is yours
only not to injure other people.
 Boomer v. Atlantic Cement Company (1970): cement company upstate NY. A lot of smoke and
pollution bothering the people that live near it and it is affecting the market value of their property.
o Legal Issue: Is there a nuisance? What is the remedy(property protection or liability protection)?
o Holding/Rule: There is a nuisance. The π are entitled to monetary damages because there is a
disparity in social value (liability protection rule). If Δ is forced to stop it will be a bigger harm
than the harm that the π are suffering.
o Rationale: The legal effect is to create a servitude on the land- basically an easement- the
cement plant is the dominant parcel and they can interfere with π proprety in order to be able to
do things they would not ordinarily be able to do. Transaction costs of Coase bargaining would
be high and burdensome. Injunction unless there is a payment of permanent damages.
 Spur Industries, Inc. v. Del Webb Development Co. (1972): π was a developer and was building a
retirement community and expanding south toward Δ property. Δ operated a feed lot for cows. Δ
expanded their operations on their property. Π couldn’t sell the retirement homes near the feed lot
because of the smell.
o Legal Issue: Where a business is operating lawfully, can it be enjoined as a nuisance?
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o Legal Issue: If the business is found to be a nuisance, can the developer who requested the
enjoinment be required to indemnify (compensate) the business owner?
o Holding: Δ business was a public nuisance. Π was granted the injunction against Δ, but has to
pay Δ damages because they were not doing anything wrong.
o Rule: To protect a third party (here, the people buying into the retirement community) court
grants injunction but the party with the injunction against them has to be compensated under the
liability protection rule because they weren’t doing anything wrong.
C. Zoning
 Prevent conflicts by means of regulation
 How governments regulate land
o (1) government provides grid of public lands and then says within that grid you can do whatever
you want as long as it is not a nuisance
o (2) state intervenes more- certain sizes of lots required or prohibited and certain uses are prohibited
o (3) government decides what goes where: schools, homes, stores, etc. They decide all uses of land-
urban renewal projects.
 Potentially criminal penalties for violating zoning laws
 2 ways to get exceptions from zoning laws:
o (1) Special Exception: built into the law
o (2) Variance: you can ask for an exception special for your individual case
 Euclidian Zoning- idea is that you can put nice things at the top of the list any of the places that allow
things below it on the list, but you cant put something that’s low on the list in a spot designated for things
that are higher on the list
o Euclidian zoning uses: (1) Single Family Homes; (2) Duplexes;(3) Apartments, Schools,
Churches; (4) offices, retail stores, banks, theatres; (5) warehouses; (6) industrial, cemeteries,
prisions.
o Ex. (1) can go anywhere; (6) can only go in places designated for (6); (3) can go in somewhere
designated for (3), (4), (5) and (6), but not in (1) or (2).
 Non-conforming uses: when applying zoning to land that already has stud on it, you may have
something there that was okay but with the new zoning ordinances it isn’t- usually they are grandfathered
in only if they’re already using it for that use. They cant switch to a non-conforming use or a different
non-conforming use.
o they thought that non-conforming using would die out but they didn’t
o some jurisdictions have time limits for non-conforming uses to continue
 Policy:
o Zoning ordinances cannot be used for specific targeting of groups/ racial purposes and limit who
people could sell property to- cant target characteristics of users
o If an area is zoned only for single family homes, then only people who can afford those homes can
live there which kept out minorities and poor people. Reducing density only allowing single family
homes makes neighborhoods expensive so it kept out the people they wanted to keep out.
Permissible because it doesn’t specifically target characteristics of users it just does.
o Zoning can effect classes of people but not target them
o Don’t do covenants because then everyone would have to agree and people would want to
maximize their own interests
o Limits negative externalities makes sense to separate factories and homes. Good for efficiency.
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o Against Zoning: botched zoning, times change and zoning might make sense at one time but not
another, lobbying for not socially optimal zoning for peoples self-interests- decision makers do
what they’re told is optimal but it might not necessarily be what is optimal, zoning can have
externalities- discriminatory effects, sprawling if a lot of site limits.
 Village of Euclid v. Amber Realty Co. (1926): Village is a municipal corporation that defined the 6
different uses and there things can go based on their use with different height zones for buildings in the
area districts.
o Legal Issue: Is the ordinance constitutional?
o Holding: Zoning is a permissible use of the state police power.
o Rule: Determining whether zoning is permissible and appropriate is dependent on circumstances
and locality. Could be the right thing in the wrong place. Euclid zoning- Use zoning.
o Rationale: Even though there are more zoning restrictions than most other places in the area, it is
okay because it makes sense to exclude industry from certain places because its harmful. It makes
sense to exclude apartment buildings and offices because it makes things safer.
 Southern Burlington County NAACP v. Township of Mount Laurel (1975): π said that Δ was using its
zoning regulations to effectively exclude people from neighborhoods based on their economic class.
o Legal Issue: Whether a municipality may validly by land use regulation make it physically and
economically impossible to provide low and moderate income housing and thereby exclude people
of limited income and resources.
o Holding: A municipality must, by its use of land use regulations, create an appropriate variety of
and choice of housing.
o Rule: Zoning as an action under the police power must promote the general welfare and cannot be
motivated by other considerations such as minimizing the local property tax rate. Heavy burden on
municipality to show that the regulation is valid and its possible for low and middle income people
can and do live there too.
VI. Forms of Ownership Across Persons and Time
A. Future Interests
 Land owners can divide up their “bundle of rights” through time
 Estate- property rights as divided up through time
 Life estate- not the best way to divide your own property rights- trusts, easements, etc. are better and
more practical
 No one who is alive has heirs. If it says “to jones and his heirs” its just to jones. (If alive its heir apparent-
in a will to jones and his heirs the “heirs” get nothing)
 You can have a remainder in anything, but it comes from getting it from someone else’s life estate.
 Defeasible fees- allows ownership to change if a specified events happens.
o Many state require a time frame for the event to happen.
 Default rule: waste is prohibited
o Affirmative Waste- use that’s not normal and causes excess damage (some damage isn’t enough
needs to be excess)
 Open mines doctrine- if there is an open mine on a property when someone has a life estate
they can run it, but they can’t open a new mine because the new one would be waste
o Permissive Waste- passively sitting around and not doing things you should have done;
unreasonably failing to act and therefore causing excess damage
o Ameliorative Waste- significant change in the property that makes it more valuable
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 Majority today does not treat this as waste

 Test: should be allowed if it maximizes market value of the property. Increasing is not good
enough it needs to maximize. (Ex. A warehouse and stadium would both increase, but stadium
would maximize- the warehouse would be considered waste, but the stadium would be okay.)
o Doctrine of Ameliorative waste: The holder of a life estate has the right to make use of a property,
but does not have the power to make fundamental alterations to the property (exercise ownership
and dominion). The left estate has to pass to the holders of remainders in the condition in which it
was received- without fundamental changes.
o Brokaw v. Fairchild (1929): man built mansions and gave them to his children in life estates for
their children to get as fee simple absolute. Π wanted to knock down the mansion and make
apartments because he was losing money keeping it. Δ are the children getting the remainders and
argued that he cant knock it down because it would be ameliorative waste and it would make the
property value of the other mansions go down.
 Legal Issue: May a holder of a life estate demolish the property without permission from the
people with remainders after him if the property would be worth more after the demolition
than it is without it?
 Holding: A life estate holder cannot demolish his inherited building without permission by
the people with remainders because it would constitute as waste.
 Rule: Ameliorative waste is a type of affirmative waste and is impermissible- this is a
minority opinion. Most jurisdictions have evolved the rule to allow things that maxminize
the value of the property. Not enough to increase value of the property it needs to maximize
it to be allowable.
 if the holder of a fees simple absolute dies and has no heirs then his property ascheats to the state
 there always has to be someone ready to take, and if the grantor has not given everything away,
then it goes to the estate.
 When listing the holders of future interests in a question, make sure to mention the quality of the
title which the holder of a future interest has (ex. A has a life estate, B has a remainder subject to a
condition subsequent, C has a remainder in fee simple.)
 If someone has an executory interest (fee simple subject to executory limitation) make sure to
mention if its shifting or springing.
 If conveyance can be construed as being either Fee Simple Determinable or Fee Simple Subject to
Condition Subsequent, the preferred construction is in favor of Fee Simple Subject to Condition
Subsequent.
 Perpetuity-
o Vested- when interest ends its vested
o Rule against perpetuity- rule against having interests that vest too far in the future.
o Rules for vesting of future rights vary from what the rights are.
 Mountain Brow Lodge No. 82 Independent Order of Odd Fellows v. Toscano (1967): Δ upon their death
gave property to π. Conveyance said that the lot would revert back to the estate if the Odd Fellows Lodge
stopped using it for lodging purposes or if they sold or transferred any part of it.
o Legal Issue: Whether the condition in a deed of conveyance created a fee simple subject to a
condition subsequent or was a restraint on alienation (transfer) of property?
o Holding: Yes, the restriction is valid because it is a restraint on the use and not a restraint on the
user. This a fee simple subject to a condition subsequent.
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o Rule: No formal language is needed to create a fee simple subject to condition subsequent as long
as the intent of the grantor is clear. The object in construing a deed is to ascertain the intent of the
grator from words that were used in the deed and surrounding circumstances.
o Dissent: the effect of the provision is that they cannot transfer it so it effectively is a restriction on
alienation (transfer). Letting the provision be okay, in the future the property could belong to
several people all over the place and then they would all have to agree on what to do with it.

Present Possession Interest Key Words Future Interest in Future Interest in

Original Grantor (Reversion) Other People
Fee Simple Absolute: “To Jones”;
Largest package of property “To Jones and
rights you can have; his Heirs”; “To NONE NONE
Indefinite time; assumed Jones in fee
when property transfers it is simple”
fee simple absolute.
Life Estate: “To A for life” Reversion Remainder – if future interest
Terminates when some isn’t with the original grantor
named person dies;
Transferable by gift o sale- if “To A for life then to B” A has
transferred it’s the lift estate a life estate and B has a
autre (through someone else’s remainder in fee simple
life- it still dies with the absolute.
original named person); No “To A for life then to B for life
vertical privity- if A1 w/ fee then to C” A has a life estate, B
simple giving a life estate to has remainer in life estate, and
A2 it dies with A2 C has remainder in fee simple
absolute.
Fee Simple Determinable “As long as”; Possibility of Reverter – could be
(Defeasible Fees): “so long as”; explicit or implicit- doesn’t matter
Ends automatically if the “while”; if its written in because it must
named event occurs- usually “during”; always go with fee simple NONE
termination of some named “until”. determinable.
activity. If the event happens Because it happens automatically,
the estate returns to the if fee simple determinable doesn’t
original grantor. stop possession and the original
grantor doesn’t go get it could
have adverse possession issues.
Fee Simple Subject to a Key Words: Right of entry/ Power of
Condition Subsequent Usually Termination- original grantor as a
(Defeasible Fees): contains choice to enter and terminate
Continues indefinitely until reference to possession.
named event occurs and when right of entry; If this person chooses not to enter
the event occurs the grantor “but if”; “on for a long time after the triggering NONE
can choose to take estate back condition that”; event, courts may say too late not
or leave it. It doesn’t “provided that” yours anymore (Laches)
automatically return, it
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returns with self help or law

suit.
Fee Simple Subject to “If ____ occurs Executory Interest
Executory Limitation then to __”;
(Defeasible Fees): Shifting Springing
If the triggering event NONE (Most Common)
happens, third party gets the O-> B unless ____ O-> O -> B, if
estate. Works automatically. then -> C B _____
Shifting- cuts short interest of
someone other than the original
grantor.
Springing- cuts short interest of
the original grantor. (O had FS
and grants himself FSSEL)
B. Co-Ownership/ Concurrent Ownership
 Could have multiple owners and future intersts.
 4 basic types of Concurrent ownership
o (1) Tenancy in Common
o (2) Joint Tenancy Main types
o (3) Tenancy by the Entirety
o (4) Community Property
 Tenancy in Common: co-owners are called co-tenants and their interests are separate in its entirety.
They both have rights to the whole thing. Each are separately able to transfer. They could have unequal
rights (unequal shares/ interest) to paying or value of the property but they each have an equal right to
possess the whole. Both can sell, exclude, use, etc. They cannot demand rent from each other and they
cannot exclude each other.
 Joint Tenancy: always have right of survivorship- when one dies their share or fractional interest
vanishes and the other co-tenants shares expand proportionally no matter what any of their wills say they
cannot transfer their share upon death. Makes sense for people who are very close like families. In most
states, all co-tenants need the same fractional size.
o For our purposes, joint tenancies have to be equal shares.
o Requires 4 Unities:
 (1) Possession- equal right to posses the whole;
 (2) Interests established must be established at the same time
 (3) interests established by the same instrument- title given by same person/ same act of
adverse possession
 (4) everyone has to have the same legal interest (fee simple, life estate, etc.)
o it is possible to get around the time and title requirements- straw transaction- transferred to
someone who immediately transfers it back to all the parties that they want to include
o each joint tenant can convet his/her unilateral interst to someone else but that changes it to a
tenancy in common. The transfer unilaterally severs the unity- they have the right to exit.
o Severance: Converts a joint tenancy into a tenancy in common.
 can sever by breaking any of the 4 unities requires in joint tenancy
 one tenant murdering another tenant severs the joint tenancy and the murderer does not get the
person he killed’s interest in the property.
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 Tenancy by the Entirety: available only to married couples created because married women couldn’t
own property in their own name; limited what spouses could do with co-owned property.
o (1) right of entitlement when person dies; (2) 4 unities from joint tenancy; (3) neither party can
unilaterally transfer the property- cannot sever or partition.
o Ends if both agree or if they get divorced.
 Community Property: alternate to tenancy by entirety in the states that got rid of it. Each person has
equal interest.
 With co-ownership, courts usually don’t step in with disputes between them. Sometimes they will or
waste but partition is a better option.
 Co-owners always have the right to partition at any time for any or no reason.
 Two types of partition:
o (1) Partition in Kind- dividing up property and giving shares to eachother
o (2) Partition by Sale- sale on divisor and then proceeds go to them proportionally.
 Courts favor partition in kind unless BOTH (1) doing so is impracticable; AND (2) sale would better
serve the owners interests.
 Problem with Partition by sale: entitles them to market value of their share of the property, but might
be worth more to them than market value like subjective sentimental value.
 Delfino v. Vealencis (1980): π and Δ are tenants in common. Π has 69% of the property and Δ has 31%/
Δ wants patrician in kind and π wants patrician by sale. Δ occupies the dwelling and portion of the land
from which she operates a garbage business. Π is a residential developer and wants to develop.
o Legal Issue: Does a patrician by sale serve the best interest of the parties where a patrician in
kind is statutorily favored?
o Holding: Δ is entitled to a patrician in kind.
o Rule: The courts must analyze what is best for both parties when determining patrician in kind of
patrician by sale.
o Policy: Courts favor patrician in kind unless BOTH: (1) doing so is impracticable; AND (2) sale
would better serve the owners intersts
o Now, most courts favor patrician in kind, but they are moving toward patrician by sale. The
problem with patrician by sale is that it entitles the parties to market value of their share o the
property, but it might be worth more to them than the market value (subjective sentimental
value).
 Gillmor v. Gillmor (1984): π and Δ are co-tenants. One is using the property for grazing and if the other
also used it for grazing to the same extent they would have overgrazing and it would render the land
useless for grazing. One tenant is effectively stopping the other from using the land for grazing. Π asked
Δ to alter his grazing practices so that he could graze their too. Δ unilaterally put up a fence.
o Legal Issue: Should Δ be compensated for the fence? Is π entitled to damages for Δ not altering
his grazing?
o Holding: Δ should be compensated for the fence because it was necessary the expense was
reasonable. Can be used to offset if the expenses were reasonable and they owe damages. Because
π asked Δ to alter his grazing practices and he didn’t, damages are proper (clear and unequivocal
demand+ refusal to accommodate = damages owed.)
o Rule: To get damages you have to show ouster and to show ouster, its not enough to show the
other party was using the property exclusively because each have a right to occupy and possess the
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whole as long as they don’t exclude the other from doing so or they effectively exclude the other
party from occupying and possessing the land.
o Rule: Ordinarily, if a co tenant who possesses a property makes a repair unilaterally on the
property (without telling the other cotenants) you cannot demand the cotenants pay. Exceptions (1)
if the cotenant in possession unilaterally made the repair in good faith belief they were the sole
owner of the property; (2) estopple- if a cotenant who is out of possession knows the cotenant in
possession is going to incur the expense doing the repairs but keeps silent about it and doesn’t say
not to do it; (3) when the repairs are necessary to preserve or protect the co-owned property.
 Harms v. Sprague (1984): surviving joint tenant brought an action to determine ownership of
survivorship property against a mortgage holder and the executor of the descendant’s estate.
o Legal Issue: Does a mortgage note: (1) sever a joint tenancy when less than all the joint tenants
mortgage their interest in the property? ; (2) survive the death of the mortgagor as a lien on the
property?
o Holding: The mortgage did not sever the joint tenancy and therefore the will is ineffective. The
mortgage company has no interst in the property because the interest of the mortgagor vanished
when he died and π interest simultaneously increased.
o Rule: A mortgage does not sever a joint tenancy, a sale does, but not a mortgage. Severance can
be unilateral and without notice.
VII. Leases
 Term of Years Lease: lease for a fixed period of time. When the time ends the lease ends and no one has
to give notice. Could be measured in months or days not necessarily years.
 Periodic Tenancy: automatically renews/ rolls over for specified time. Either party can terminate, but
they have to give notice. Usually notice has to be as far in advance as the lease is for unless if its for over
a year.
 Tenancy at will: either party can terminate lease at any time for any reason. Requires advanced notice
for a specific time.
 Tenancy at Sufferance: what happens when there is a valid lease that ended and the tenant doesn’t move
out. Different from trespass because the entrance was lawful you just didn’t leave when you were
supposed to. There is a right to evict.
o just because there is a right to evict doesn’t mean that you can use self-help.
 Model of Independent Covenants:
o Two independent covenants made when the lease is entered:
 (1) tenant promises to pay the rent in the lease
 (2) covenant of private enjoyment- the landlord promises not to interfere with tenants
possession but they don’t have to keep anyone else from interfering with tenants possession.
 Violating one of the covenants does not mean that they are both broken—however, the
covenant to pay rent is dependent on performance of the covenant to private enjoyment.
 Covenants are independent so even if private enjoyment is violated, the tenant still has the
covenant to maintain the property.
 Caveat Lessee: even if the property is defective the risk falls on the tenant (default rule)- courts are
moving away from caveat lessee and toward constructive eviction
o Sutton v. Temple: no implied warranty of fitness in leases unless K says otherwise or landlord
defrauds them.
 Constructive eviction: not actual eviction but treated as one (don’t have to pay rent) NEED BOTH
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o (1) someone’s conduct substantially interfered with tenants use and enjoyment of the property;
AND
o (2) the landlord is somehow responsible.
 Model of Dependent Covenants:
o Doctrine of Surrender (Gottlieb v. Taco Bell): when a tenant repudiates a lease, landlords have
three options: (1) reject repudiation and do nothing- the tenant is still liable for rent under terms of
the lease (for commercial leases there is no duty to mitifate whereas residential leases there is a
duty to mitigate); (2) reject the repudiation, enter the premises, and re-lease the property to
someone else for the tenants benefit- tenant is responsible for rent deficiency but they can deduct
whatever income is raised by sublease to new tenant; (3) accept the repudiation- reenter and
release the property for the landlords benefit- the tenant is out of the lease and owe nothing.
o Duty to mitigate: landlord is obligated to make reasonable efforts to find someone else to lease
the apartment and the landlord has the burden of showing they exercised reasonable diligence to
find someone to fill the lease and the tenant is required to pay reasonable cost of releasing the
property
 Majority rule in the US
 Landlords have incentive to mitigate anyway because (1) some tenants are judgement proof;
and (2) incentive to move quickly to not lose money because of inflation and market changes.
 When there is no re-lease that happened in a reasonable amount of time.
o Implied warranty of fitness: if the seller knows or should know what the purchaser/ lessee is
buying leasing for the seller lessor is gaurenteeing that property is fit for that particular purpose.
o Implied warranty of habitability: the property will remain habitable throughout the lease. It
cannot be waived because then the landlords would require you to waive it to lease so tenants right
to the warranty goes away.
 Argument against: not good for poor people because if you rewuire this it increases the
demand for low income housing because everyone wants it nicer and supply goes down.
 Counter to argument against: supply and demand is not this elastic there is still only so many
poor people and supply doesn’t change because the buildings are already there. It just a shift
of wealth from the landlord to the tenant because now landlords have to pay for upkeep.
 Remedies: anything available for breach of K: rescind, money damages.
 Little evidence on what this actually does because enforcement of it is uncommon
o Illegal Lease: If you lease property that at the time of the lease is not up to code its an illegal lease
and you are liable for it applies only to property in the condition in which it has been leased and
establishes no obligation o the landlord to fix the problems after signing the lease.
 Paradine v. Jane (1647): term of lease is for three years and the tenant cannot get out of the lease until the
term is up. During the civil war in England, Prince Rupert ousted the tenant from the land before the
lease was over.
o Legal Issue: Whether a tenants covenant right to private enjoyment being violated by someone
other than the landlord allows him to not fulfill his covenant not to pay rent.
o Holding: The tenant has to pay rent when it is not the landlord who ousted the them.
o Rule: Two independent covenants are entered into in a lease: (1) the tenant promises to pay rent
in the lease; and (2) the landlord granting the lease creates a covenant of private enjoyment- the
landlord will not interfere with the tenant’s possession. The Landlord does not have to keep
anyone else form interfering with the tenants use and enjoyment.
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o Reasoning: If the tenant is entitled to enjoy all the potential upsides to using the property, the
tenant is also required to suffer all the potential downsides and losses of the property.
(Dispossession by a third party is a risk the tenant should bear)
o Today, if someone leases residential property and the property is destroyed, the tenant is off the
hook. However, if the lease is commercial, the tenant then may still be obliged to fulfill the
terms of the lease.
 Smith v. McEnany (1897): Landlord leased land that had a shed. The landlord knowing built a wall that
encroached just a little bit onto the tenants property. The tenant stopped paying rent.
o Legal Issue: Whether the encroachment by the landlord dispossessed the enjoyment of the tenants
property so that they do not have to pay rent.
o Holding: While there is an encroachment going on, the tenant does not have to pay rent for the
property.
o Rule: Wrongful eviction of the tenant by the landlord from a part of the premises suspends rent
under a lease. Where the landlord interferes with a tenants right to private enjoyment, the tenant
does not have to pay rent. The covenant to pay rent is dependent on the covenant of private
enjoyment.
 Sutton v. Temple (1843): Landlord leased property to tenant who used the land to raise animals. The land
was poisonous because of old paint so the animals died. The landlord was unaware the land was
poisonous.
o Legal Issue: If a person enters a lease for the use and occupation of land for a specific purpose, he
is bound to that bargain, even though he took it for a particular purpose and that purpose was
unattainable.
o Holding: Where one undertakes to pay a specific rent for a piece of land, he is obliged to pay the
rent whether it answers to the purpose for which he took it or not. Benefit by occupation is
irrelevant.
 Blackett v. Olanoff (1977): landlord rents out two lots. One to a nightclub and one was residential. In the
lease the club signed it said they wouldn’t be too loud and at one point the landlord complained to the
club owner about the noise and they temporarily lowered the noise level. The club rental was too loud so
the tenant left and claimed constructive eviction so they wouldn’t have to pay rent.
o Legal Issue: When the acts of one tenant prevents the other tenant from enjoying their premises,
will the landlord be liable when the lease prohibits the tenant from disturbing others.
o Holding: Yes because where there is evidence the landlord has some control of the thing that is
disturbing the right to private enjoyment he can be shown to be responsible.
o Rule: A tenants implied covenant or quiet enjoyment is violated where the lease gives the landlord
control over the noise level of the tenant and does nothing to prevent the disturbance.
o Rule: General Rule for Constructive Eviction: (1) someone’s conduct substantially interfered with
tenants use and enjoyment of the property, AND (2) the landlord can somehow be responsible.
(most jurisdictions, if claiming constructive eviction, you actually have to leave the property).
 Gotlieb v. Taco Bell Corp. (1994): π leased property to Δ and as part of the lease Δ says they will be
diligent to get government approval and allowed them to cancel the lease if they could not get approval in
months. One day before 6 months was up, Δ filed for their permit application and served π purporing to
repudiate the lease. Π rejected repudiation. After rejecting repudiation, π made an offer to lease the
property to a different tenant for their own benefit.
o Legal Issue: How much rent is owed?
o Holding: They are liable for all the rent because the acceptance of the surrender.
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o Rule: Repudiation can occur by: (1) Express agreement; (2) operation of law- if the parties do
some act so inconsistent with the landlord tenant agreement as to render the lease invalid even if
they rejected the repudiation. Just looking for someone to fill the lease is not accepting the
surrender of the lease.
 Medico- Dental Building Company of Los Angeles v. Horton and Converse (1942): lease agreement
included that the landlord would not lease to any other pharmacy/ medicine distributor in the building.
Landlord rented 9th floor to a medical operation and that doctor was distributing drugs and within the
doctor’s lease was that he could distribute drugs to his own patients. Tenant stopped paying rent because
they violated the restrictive covenant.
o Legal Issue: Is the covenant to pay rent dependent or independent on the restrictive covenant in
the lease?
o Holding: The covenants are dependent because it was clear the intention of the restrictive
covenant was vital to the agreement and they were willing to pay more for rent believing they
would not be competing. The covenant to pay rent and the covenant not to lease to other drug
companies was in the same rider of the lease.
o Rule: Three possible remedies for dependent covenants: (1) rescind the lease; (2) stay in the
building but sue for profits lost; (3) leave the lease and sue for damages for before they left.
Tenants cannot get out of a lease for a minor violation, they can only sue for damages. Look at
the intent of the party to determine If it was intended to be independent or dependent.
 Javins v. First National Realty Corp (1970): Tenants defaulted on one month of rent so landlord wanted
to regain possession based on the default. Tenants argued there was a breach of the warranty of
habitability because of violations of statutory housing regulations.
o Legal Issue: In the lease of an apartment, is there an implied warranty of habitability?
o Holding: Yes. Leases are for a specific period of time and the tenant should be able to rely on the
property being habitable for the duration of the lease.
o Rule: In regards to residential property, the landlord makes an implied warranty of habitability and
that standard of habitability is set by relevant housing codes.
 Sommer v. Kridel (1977): Landlord sues for rent for the entire period of the lease when the tenant
vacated the premises prior to the end of the lease.
o Legal Issue: Whether a landlord seeking damages from a defaulting tenant has a duty to mitigate
damages by making reasonable efforts to re- let an apartment wrongfully vacated by the tenant.
o Holding: The landlord has a duty to mitigate.
o Rule: Landlord is obliged to make reasonable efforts to find someone else to lease the apartment
and the landlord has the burden of showing they exercised reasonable diligence to find someone to
fill the lease and the tenant is required to pay reasonable cost of releasing the property.
o It is possible to assert doctrine of surrender in the alternative to duty to mitigate.
VIII. Takings
A. Eminent Domain
 implied attribute of sovereignty: all government by virtue of being a sovereign government needs the
power of eminent domain
 Delegated to towns and common carriers
 Taking property- condemnation of property- the person the property is taken from is the condemnee
 Limited by statute and 5th and 14th amendments to the united states condition- “nor shall private property
be taken for public use without just compensation”
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 In almost every state constitution too with their own takings clause
 Government can do it without permission
 Justification for the government’s ability: property markets are thin and there is not a lot of property
being sold at any given time. There are hold out problems where people don’t want to sell which would
stop the project or people who will only sell for much more than it is worth.
o If government doesn’t have to pay for property: (1) they don’t internalize the cost of the profect
so there could be inefficient decision making; (2) they could take more property.
 Liability rule of protection: government can take property but has to pay fair market value.
 Requirements
o (1) Public Use: some public benefit created by the project. “Public Purpose”.
 Courts traditionally give a lot of deference to states
 Ex. Expanding cost guard training facility would be okay, but can’t take property from x just
to give it to y.
 Economic Development: Look at the entire plan to see if the taking is okay. Are the takins
part of a genuine plan? Is the genuine plan there to serve a public purpose? Consider if
it was don’t to make it look like it wasn’t motivated by private entities or if it was
genuinely motivated to promote economic development for the community.
 Condemnation Blight: happens when property is anticipated to be taken and as a result the
property value drops because people stop takin care of it because they won’t internalize the
benefits of fixing it up and keeping it nice.
o (2) Just Compensation:
 Justifications:
 Requirement there to protect people from being singled out and inconvienced in a way
other property owners are not. Some people individually should not have to bear the
public burden. Everyone should be burdened the same way and by giving them just
compensation everyone is paying for the land and the landowner gets money for their
extra burden.
 Incentives argument: government should internalize the cost of the takings or they will
take more than is socially optimal. (Counter: government motivated by pollical incentives
not fiscal insentices)
 Process failure argument: if no compensation is made politically powerful landowners
would work to stop projects that would burden their property.
 Level of compensation: Market value standard.
 Argument to add sentimental value: if market value was as much as it meant to them they
would’ve already sold it. Should get full value not just market value (not how it is).
 Partial Takings: the owner gets fair market value of the fragment of property the government
takes. They can also get severance damages which reflect that a larger parcel is worth more
per acre than a smaller parcel and if the part that was taken makes the part that was not taken
less valuable (like if the taken part had river access and without it the land doesn’t have that
access). Compensation minus the special benefit the remaining parcel still gets. Special
benefit- benefits in a way the neighbors don’t from the project.
 Fair Market Value: what a willing buyer would pay to a willing seller in cash. If there is no
straight forward market value because no market exists for the parcel, then you have to
make an educated guess excluding the value to particular parcel owner (sentimental value)
 Just compensation is based on loss of property owner not the gain of the government.
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 If government takes only part of the parcel, government only pays for that part and severance
damages
 Fair market value: what a willing buyer would pay a willing seller in cash
 Fair Market Value generally measured at the time of the taking unless taking is spread out in
time.
o 4 Basic ways to find out what fair market value is:
 (1) Past transaction prices of the parcel (Problem: Market changes)
 (2) look at other similar parcels and see what they went for recently (Problem: what property
is similar)
 (3) figuring out the income stream of the property. How much could they make if they rented
the property out?
 (4) cost of duplication- cost of rebuilding the structures on the property.
 Kelo v. City of New London, Connecticut (2005): City of New London wanted major urban development
project to help their economy in the city and to bring people into the city. Plans included hotels, offices,
houses, conference centers.
o Legal Issue: Does increasing economic development in a community count as public use?
o Holding: Yes because it serves a genuine public purpose. A public purpose is enough as long as it
is not a pretextual use to benefit private companies, it must be a genuine public purpose.
o Rule: Look at the entire plan to see if the taking is okay. Are the takings part of a genuine plan and
is that genuine plan there to serve a public purpose? Consider if it was done to make it look like it
wasn’t motivated by private entities or if was genuinely done to promote economic fevelopment
for the community.
o Dissent: people exercising the takings clause benefit from them. Historically racial component to
the takings clause where they would take from minorities and white people would get the benefit.
There is no way to distinguish taking by the government taking things that will be run by private
companies pretextual and non pretexual uses. Takings done by private parties are inherently
problematic. Under this any property could be subject to a taking as long as it has some more
socially beneficial/productive use. Should be a more direct benefit.
o Federalism argument for majority: great respect is owed to states to determine what they need.
Low standard for public use, but if an individual state wants a higher threshold they are welcomed
to by statute or state constitution to amend the scrutiny. This is a federal standard and federal
courts should give deference to states because states know what they need.
o Pretextual argument against: If the government can take property to give to private entities there
is a strong incentive for private entities to try and get government officials to make takings that are
nominally for the public good but really for the benefit of private companies. People go through
motions to make it seem like isn’t pretextual but it actually is.
 United States v. Miller (1943): Δ bought the property after the government had already announced plans
to do the project. The project involved relocating a railroad and took land for the railroad.
o Legal Issue: Does the fact that the government will make a large gain in the project the taking is
for affect the amount of the compensation?
o Holding: No. The fact that the taking will provide a large gain to the government should not
increase compensation paid. Compensation is for owners loss not the gainers gain.
o Rule: General Rule is that the fair market value for the taking is from the date of the taking. Here,
it depended on the government’s intent and when the government becomes committed to the
project is the date the fair market value is evaluated. If their intent was taking the property in
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question then the date of the commitment is the date of fair market value evaluatin, however, if the
original scope of the project (when they committed to it) did not include the parcel in question then
it is measured buy the date of the actual taking.
 Goldstein v. New York Urban Development Corporation (2009): Government plan to make the Barclays
center and a mixed use residential development. Some residents held out selling property to the
corporation so the government took it. NY state statute was to take land that is blighted so the
government said the land was blighted so they could take it.
o Legal Issue: Can government take land that they deem is blighted?
o Holding: Yes. This is a taking or public use because there only needs to be a public purpose and
blight removal is in the NY constitution. A reasonable person COULD conclude the area was
blighted.
o Rule: It only needs to be impending blight. If a reasonable person could conclude the area was
blighted the government can take it.
o Dissent: so much deference and they are referring to the legislature to determine if the legislature
is allowed to do things. The whole point in the takings clause requirements is to stop the legislature
from taking anything they want to. Removing blight was not the main reason for this project so
there is pretext. The community looked fine some buildings weren’t in good condition but that’s
because he owners anticipated the taking so they weren’t going to invest in fixing them if they
were going to be demolished anyway.
 In Re Kaur, In Re Truck Away Inc. (2009): Manhattanville has some property and Columbia University
wants that property. They conducted a study and determined the land was blighted.
o This court said it violated the NY constitution and the priciples of social conrtact. And the
Universities expansion ws not a civil project designated by the statute because it cant just be for an
education institution it needs to be educational for civil purpose.
o This was revered by the New York Court of Appeals (highest NY court) because they had just
previously decided Goldstein and this court was bound by that decision.
B. Regulatory Takings
 Conflicts arise when government claims acting within their police power to regulate but citizen thinks
what they’re doing constitutes a taking.
 The action is permissible, the question is whether the government owes compensaition. If just exercise of
the police power, thet don’t owe compensation. If it’s a regulatory taking ththen they have to get
compensation
 Inverse condemnation: citizens want their property taken by the government so they can get just
compensation.
 Regulatory Takings:
o (1) Categorical Rules- per se takings- government authorizing permanent physical occupation
o (2) Balancing Test- ad hoc regulatory taking- depends on circumstances.
 Categorical Rules- Per Se Takings
o If government physically occupies your property (whole or part)
o If government authorizes a 3rd party to come and occupy your property
o Lorretto: authorized wires for cable TV to go on apartment buildings and land lords couldn’t deny
the access.
 Rule: It’s a per se taking if government action: (1) authorizes (2) permanent physical
occupation
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o Lucas: developer of beach front property buys lots and then government prohibits building of
residences near the beach.
 Rule: per se taking if the government eliminated ALL economic benefits of the land and not
just abades public nuisance. Must be 100% wipe out of economic value (if 99% wipe out it is
not a per se taking, doesn’t mean it isn’t ad hoc regulatory taking- but it is not per se).
o Horne: Government required raisin growers to give them part of the crop
 Rule: Personal Property or real property, it is still a per se taking.
 Ad Hoc Regulatory Takings
o 4 factors from Penn Coal:
 (1) how bad was diminution in value caused by the regulation?
 (2) is the thing being discussed in the regulation preventing a nuisance?
 If preventing a public nuisance, it is just an exercise of the police power not a taking
 (3) is there average reciprocity of advantage (implicit in kind compensation)?
 Check to see whether the regulation benefits everyone including the burdened land owner
and if everyone in equally burdened. (If everyone is equally burdened that is the
compensation)
 If average reciprocity of advantage the advantage is that everyone else is being burdened
too.
 (4) (Holmes only) Did the regulation destroy existing property rights and people contracting
abilities?
o Pennsylvania Coal Co. v. Mahon (1922): Penn Coal entered a K that said they were entitled to dig
out so much coal from under property that the surface of the property would sink. State Legislature
prohibited Coal mining under surfaces with homes on it.
 Legal Issue: Was the regulation a taking? When has a regulation gone too far?
 Holding: Yes. If individual right is being restricted and that’s the test than any taking of any
right is a taking. If you take Brandeis approach its not that big of a diminution in rights value
because you’re looking at all the rights and they are only taking one. This matters because
government does not have the money to pay for all the regulations they impose.
 Reasoning: The support right was waived by the owners and Penn Coal paid for that so they
lost the support right and the value of the supports. Its protection of public safety, but a
different regulation could have protected the public safety, its not a nuisance so its not police
power. Not average reciprocity of advantage because one party is burdened and the other is
benefited. If the statute is enforced it will violate a contract they entered into.
 Dissent: Look at the value of all the rights not just the one being burdened. This is regulation
of a noxious use and within the police power. No average reciprocity of advantage although
here it is irrelevant because it is only relevant when the statute benefits land owners, this
statute protects them from detriment and danger. No right to contract factor because we don’t
want people to circumvent the law to make things takings just by entering into a contract.
o 3 Factors from Penn Central:
 (1) Extent of diminution in value by the regulation- diminution relative the whole parcel.
 (2) Did the regulation interfere with distinct investment backed expectations
 (3) What was the character of government action? Was there a physical invasion or did the
regulation just burden them?
o Penn Central Transportation Company v. City of New York (1978): Penn central wanted to build a
high rise on top of grand central station. The property was landmarked and NYC had a law that in
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order to alter landmarks they needed to get it approved. Provided compensation between what the
landmark status allowed and the zoning law would allow- they could sell the gap to neighboring
buildings (so if they wanted to build up 40 stories but not allowed to, they could the right to build
40 stories up to a neighboring building even though zoning laws normally would allow it)
 Issue: Was this a taking?
 Holding: No. The regulation does not interfere with them getting a reasonable rate of return
(distinct investment backed expectations).
 Dissent: The Penn Coal factors should have been applied. They aren’t tying to do something
that is protecting the health and safety of the public they are only trying to protect beauty.
Grand central is being limited in ways people across the street were not being limited. It
interfered with an existing property right any change to landmark structures requires
governmental approval and that’s not right. Pain compensation would not be very expensive
for NYC because if it is divided up between all new Yorkers it is a small amount.
o *No indication of which Ad Hoc factors are the right factors*