I. Rights of access vs.

the right to exclude

A. Tresspass
i. State v. Shack
1. Tejeras and Shack entered private property against the orders of
the owner of that property, to aid migrant farm workers employed
and housed there.
2. RULE: Real property rights are not absolute; and, “necessity,
private or public, may justify entry upon the lands of another.
ii. Lloyd v. Tanner
1. Hand billing in a privately owned mall as a protest against
Vietnam.
2. RULE: A privately held shopping center is not a “public place”
per se, therefore, the public’s right to exercise their first
amendment rights is limited.
iii. NJ Coalition Against the War in the Middle East v. J.M.B. Realty Corp.
1. J.M.B. Corporation that owns several malls, banned the Coalition
from passing out political leaflets in its malls.
2. RULE: The extent of free speech rights on private property
depend on how that private property is used, how great the
invitation to use the land is in the public, and the purpose of the
speech activity in relation to the land.
iv. Green Party of NJ and James Mohn v. Hartz Mountain
1. Mohn was looking to solicit for Ralph Nader at the Mall At Mill
Creek in Hudson County, NJ. The mall didn’t say no but gave him
a list of terms and conditions that he had to satisfy before he could
be there including an expensive insurance policy.
2. RULE: The regulations that a mall sets on who can and cannot
leaflet must be reasonable.
v. Matthews v. Bay Head Improvement Association
1. Bay Head Assoc. permitted only members of their organization to
use the beach between 10:00AM and 5:30PM in the summer.
2. RULE: The public’s right to enjoy tidal lands (under the PUBLIC
TRUST DOCTRINE) necessarily includes a right to use the dry
sand areas near the tidal area, regardless of whether or not they are
publicly held.
II. CONQUEST: Tribal Property Rights
A. Johnson v. M’Intosh
i. Johnson’s claim came from a purchase of land from the Indians. After the
Constitution was passed, the lands were made federal, then divided into
states. On the other side, M’Intosh received a deed for his land from the
U.S. government.
ii. RULE: Because the U.S. conquered the Indians, they have the power to
extinguish any title that the Indians had. Thus, the U.S. does not recognize
any Indian property claim.
 B. Tee-Hit-Ton Indians v. United States
i. The Indians claimed that the United States government’s K to sell Alaskan
timber constituted a taking of their property and they demanded
compensation at least.
ii. RULE: There is a difference between sovereignty and ownership. The
Indians had sovereignty but lacked ownership. There is no need for
compensation without ownership.
C. Charrier v. Bell
i. After uncovering Tunica Indian artifacts while excavating property without
the property owner’s permission, descendants of the Tunica tribe claimed
ownership of the artifacts.
ii. RULE: Ownership in burial artifacts cannot be transferred to another
under the theory of abandonment.
III. CAPTURE: Possession of property
A. Ownership systems of Oil and Gas and Water
i. The Law of Capture- you are the owner of what you bring to the surface.
1. You cannot waste under the law of capture.
B. Systems
i. Prior use- the first user prevails over another user
ii. Absolute ownership / free use- each surface owner can take as much water
from below the surface that they want w/o liability
iii. Permit system- the state issues permits
iv. Reasonable use- take into consideration the use of others.
v. Correlative rights- take a portion corresponding to the size of your
property.
1. States will pick one of these systems. It may not be the same for
both oil and water in a given state.
C. Cases
i. Pierson v. Post
1. Post was hunting a fox. Pierson, knowing this, killed the fox and
carried it off.
2. RULE: Property in wild animals is only acquired by occupancy,
and pursuit alone does not constitute occupancy or vest any right in
the pursuer.
ii. Elliff v. Texon Drilling Co.
1. Texon argued that it should not be liable to the Elliffs after it
caused severe damage to the Elliff’s oil drilling operations.
2. RULE: The law of capture does not insulate an owner from
damages caused by the wrongful drainage of gas and distillate from
beneath the land of another.
iii. I.N.S. v. A.P.
1. The Associated Press sued to enjoin the International News Service
from publishing as its own news stories obtained from early
additions of AP publications.
2. RULE: Publication for profit of news obtained from other
newsgathering enterprises is a misappropriation of a property
right.
iv. Moore v. Regents of the University of California
1. Moore claimed that Dr. Golde wrongfully used cells from Moore’s
diseased spleen and other organs for pecuniary advantage.
2. RULE: A person doesn’t have property rights in their cell tissue.
IV. Adverse Possession
A. Possession for a statutorily prescribed period of time can sometimes result into
rightful ownership of title.
i. Elements
1. Actual- a physical entry onto the property. Not symbolic or
fictitious.
2. Continuous- uninterrupted for the statutory period (using and
occupying the land as the owner would.
3. Exclusive- you are keeping others off of the land that you are
possessing as the owner would.
4. Open and Notorious- no attempt to hide the occupation.
5. Hostility / adverse / under claim of right / under color of title-
Without the owner’s permission
6. Pay taxes (THIS IS A CRITERIA IN ONLY SOME STATES)
7. For the Statutory Period (Tacking can assist in this)
ii. Tacking
1. So long as person is in privity with his predecessor (you are in
privity unless you ousted your predecessor), you can tack on the
time that your predecessor had in adverse possession.
iii. Disabilities
1. The statute of limitations will not run against a true owner that is
disabled at the INCEPTION of the adverse possession (infancy,
insanity, imprisonment).
B. Cases
i. Nome 2000 v. Fagerstrom
1. The Fagerstroms used a parcel of land owned by Nome 2000 for
various purposes from 1944-1987 but did not build a house on it
until 1978, thereby defeating their adverse possession claim,
according to Nome.
2. RULE: Whether a claimant’s physical acts upon the land of
another are sufficiently continuous, notorious and exclusive does
not necessarily depend on the existence of significant
improvements, substantial activity, or absolute exclusivity. Rather,
it depends on how a typical owner would use the property.
ii. Brown v. Gobble
1. Brown and Gobble disputed ownership of a two-foot-wide tract of
property on the boundary of their properties. Gobble had a fence
over two feet of Brown’s property.
2. RULE: The doctrine of tacking allows parties claiming adverse
possession to use their predecessor’s conduct on the property to
meet the time requirements of adverse possession.
V. Servitudes
A. Several strands of nonpossessory interests in land
i. Easements
1. The grant of a nonpossessory property interest entitling the holder
to the limited use and enjoyment of another’s land (the servient
tenement).
a. Affirmative Easements- gives the holder the right to do
something on another’s land.
b. Negative Easements- entitles the holder to compel the
servient landholder to refrain from doing something.
These must be created in writing. They prevent people
from interfering with . . .
i. Light
ii. Air
 iii. Support- Landowners own both the surface and
the earth beneath the surface unless they have
sold the subsurface to someone else as mineral
rights.
1. Sub-adjacent support- stuff beneath the
surface that holds up the land.
2. Lateral support- support that holds up
the side of a neighbor’s land.
a. A PERSON HAS AN ABSOLUE
DUTY TO SUPPORT LAND;
THEY HAVE NO DUTY TO
SUPPORT THE WEIGHT OF
BUILDING THE LAND CAN’T
NATURALLY SUPPORT.
iv. Stream water from an artificial flow.
v. In California you have a right to a scenic view.
2. Easements can be APPURTENANT to land.
a. Two parcels of land must be involved. There is a benefited
parcel (THE DOMINANT TENNEMENT) and a
burdened parcel (THE SERVIENT TENNEMENT).
b. The easement appurtenant will pass automatically with the
dominant land regardless of whether it is mentioned in the
instrument of transfer.
c. It will also pass with the servient land unless the new
owner is a bona fide purchaser (who has no notice of the
easement’s existence).
3. They are held EN GROSS.
a. When the holder enjoys a personal or commercial gain, it
is an easement en gross. Only one piece of land is affected.
i. Example: the erection of a billboard on your
property.
b. This is not transferable unless it is for commercial
purposes.
4. Ways to create an Affirmative easement
a. Prescription- Sometimes an affirmative easement can be
acquired upon satisfying the elements of adverse
possession (there are some differences).
i. Different Elements
1. Acquiescence: you cannot have explicit
permission to get a prescription, only a
lack of objection to the use will do.
b. Implication- arises when land is divided and there is a
readily apparent existing use that the parties reasonably
intended or expected to continue.
c. Necessity- land locked land. An easement of right of way is
necessary to get out.
d. Express- if there is an easement for greater than one year,
it must be in writing (a deed of easement).
5. Terminating Easements
a. Easements last forever unless terminated:
i. By agreement in writing
ii. By their own terms
iii. By merger of the dominant and servient estates
iv. By abandonment
v. By adverse possession or prescription by the
owner of the servient estate or a third party.
 ii. Licenses
1. A fully revolkable mere privilege to enter a land for a purpose
(movie tickets, theater tickets, etc.).
b. The statute of frauds does not apply to it. YOU DON’T
NEED WRITING.
i. Trick: If you give an oral easement, you give a
fully revolkable mere license because easements
need to be in writing.
c. Licenses are freely revolkable at the will of the licensor
unless estopple applies (see Holbrook v. Taylor).
iv. Constructive Trusts
1. A settler of property transfers property to a trustee with
instructions to manage the property for the benefit of a third
person, a beneficiary.
a. The legal title passes from the owner to the trustee.
b. The benefit, not the legal title passes to the beneficiary.
v. Covenants
1. A promise to do or not do something related to land.
2. A covenant starts out as a contractual obligation.
a. Restrictive covenants
i. They are limitless in scope and application.
3. Remedies
a. Gets remedies at law, not at equity. Therefore, you get
money damages.
4. If the covenant runs with the land it is a REAL COVENANT.
a. Elements
i. A promises B that A will not build anything for
commercial purposes on his land. A’s parcel is
burdened and B’s is benefited. A sells to A1 and B
sells to B1. B1 wishes to sue A1 for damages. Will
B1 succeed? It depends on whether the original
covenant is enforceable.
1. Does the benefit go to B1? Yes if…
a. Writing- There had to have been
writing.
b. Intent- Intent for the benefit to
run.
c. Touches and concerns the land
d. Vertical privity
2. Does the burden run to A1? Yes if…
a. Writing- the original promise
must have been in writing
b. Intent- the original parties must
have intended the promise to run
c. Touch and Concern- the promise
must touch and concern the land
(it must affect the parties as
landowners.
d. Horizontal and Vertical Privity-
you need both of these.
i. Horizontal privity refers
to the original nexus
between A and B. A and
B had to have enjoyed
succession of estates. A
and B had to have been
 in a grantor-grantee
relationship or a debtor-
creditor relationship.
ii. Vertical privity- the
nexus between A and A1.
It is present so long as A
and A1 enjoyed a non-
hostile relationship
(adverse possession is the
only thing that doesn’t
work). The relevant
question is, “DID YOU
SUCCEED TO THE
SAME ESTATE? DO
YOU HAVE THE SAME
TITLE? If no, then no
vertical privity.
e. Notice- A1 must have had some
notice of the promise when she
took the deed.
vi. Equitable Servitude
1. The same thing as Covenants except…Takes injunctive relief. It
has its damages in equity. EQUITY ENFORCES THIS AGAINST
SUCCESSORS.
2. To create this…
a. Writing
b. Intent
c. Touch and Concern
d. Notice
i. YOU DON’T NEED PRIVITY!!!!!
3. Equitable Servitudes could be implied
a. Common scheme doctrine-
i. Subdivision- 50 lots. 45 have restrictions in the
deed. 5 do not have restrictions. THE GUY WHO
BOUGHT THE FIVE LOTS WILL BE BOUND
IF…
1. Elements of the common scheme doctrine
a. When the sales began, the
subdivider had a general scheme
of residential development that
included the lot in question.
b. Notice that there was a promise
in the other deeds.
c. TYPES OF NOTICE
i. Actual- you see the deeds
and the restrictions
ii. Inquiry- if the land
appears to conform to a
scheme, then there you
go.
iii. Constructive notice- you
need to look at the
records. Subsequent
buyer is not on record
notice of the content of
other deeds transferred
 to others from a common
grantor.
4. Ways to terminate Equitable Servitudes and Real Covenants
a. CHANGED CONDITIONS.
i. The change must be pervasive. It must be a
change everywhere.
b. RELATIVE HARDSHIP
i. Benefit is small, burden is substantial
c. ACQUIESENCE
i. If you allow a violation, they are terminated.
d. ABANDONMENT
i. If you give up on enforcement, they are
terminated.
e. UNCLEAN HANDS
i. Person who sues is also in violation of the
covenant so the covenant isn’t enforced.
f. ESTOPPEL
i. You fail to act, you have no right to enforce
g. LACHES
i. Time has passed and people have relied on what
you allowed them to do.
h. LIMITATIONS IN THE COVENANT
i. Limitations placed in the instrument.
i. MARKETABLE TITLE ACT
i. You have to re-record certain property interests.
If you fail to do so, it is destroyed.
j. MERGER
k. RELEASE
l. PRESCRIPTION
i. Disobeying the covenant or servitude for long
enough will result in its destruction.
B. Cases
i. Prescriptive Easements
1. Community Feed Store, Inc. v. Northeast Culvert Corp.
a. Feed Store claimed a prescriptive easement over a portion
of a gravel area used by its vehicles but owned by Culvert.
b. RULE: A general outline of consistent use is sufficient to
establish a prescriptive easement.
ii. Support Easements
1. Noone v. Price
a. Noone contended Price breached her duty to supply lateral
support for Noone’s hillside home by allowing a retaining
wall to fall into disrepair.
b. RULE: An adjacent landowner is strictly liable for acts of
omission and commission which withdraw lateral support
of his neighbor’s land sufficient to support it in its natural
state; however, if as a result of the additional weight of a
building so much strain is placed on the lateral support
that it will not hold, then in the absence of any negligence
the adjacent landowner is not liable for any resulting
damages.
2. Friendswood Development Co. v. Smith-Southwest Industries Inc.
a. Friendswood Development pumped a great deal of
subsurface water from their land, causing subsidence in
adjoining plots of land.
 b. RULE: A person is liable for damages caused by drawing
water from his own land only to the extent that his activity
was negligent.
iii. Easements by implication
1. Granite Properties LTD v. Manns
a. Granite Properties argued that it had acquired, by implied
reservation, easements over two driveways providing
access to its properties when it sold an adjoining parcel of
land to Manns.
b. RULE: If a previous use is continuous and apparent, the
degree of necessity required to create an implied easement
is reduced.
iv. Easements by necessity
1. Finn v. Williams
a. Finn’s land was landlocked after its purchase from
Williams.
b. RULE: Where an owner conveys a portion of his land,
which has no outlet except over the land of the grantor or
of strangers an easement by necessity exists over the
retained land of the grantor.
v. Appurtenant vs. In Gross Easements
1. Green v. Lupo
a. Green granted Lupo a deed release upon the sale of his
property on the condition that when Lupo acquired title he
would grant Green an easement.
b. RULE: An easement is not personal if there is anything in
the grant to suggest that it was intended to be tied to the
land retained or conveyed. Easements In Gross are not
favored in Washington State.
vi. Easements Appurtenant
1. Cox v. Glenbrook Company
a. Glenbrook owned land subject to an easement for access
from Cox’s land (the Quill easement); the parties contested
the extent of the easement.
b. RULE: Where the grant is unclear, the extent of the
easement must be construed as broadly as necessary to
carry out the purposes for which it was granted. The
easement must be tied to the land, not the person.
vii. Easements In Gross
1. Henley v. Continental Cablevision of St. Louis County, Inc,
a. Henley granted the telephone company the right to
construct and maintain telephone and electrical systems
that Continental Cablevision licenses in order to install
cable services.
b. RULE: Easements in gross are freely transferable.
viii. Licenses
1. Holbrook v. Taylor
a. The Taylors claimed an easement to use a road on the
Holbrook’s property that they contended they had been
using without Holbrook’s permission.
b. RULE: Where use of a roadway, improvements to and
maintenance of a roadway all have occurred with the tacit
approval of the landowner, the landowner is estopped from
barring access to the improving party.
ix. Constructive Trusts
1. Rase v. Cattle Mtn. Ranch, Inc.
 a. Rase represented owners of cabins built on Castle
Mountain Rach’s land (near a lake) who were told that
they must vacate the land.
b. RULE: Where a buyer takes title with knowledge of an
occupant’s expectation of long-term occupancy and subject
to seller’s condition that the occupants license not be
terminated, the buyer holds the land in constructive trust
for the occupants.
x. Real Covenants and Equitable Servitudes.
1. Whitinsvelle Plaza v. Kotseas
a. In selling the land to the Plaza’s predecessor in interest,
Kotseas had agreed to a covenant not to have a competing
business on his adjoining land. He later went against that.
b. RULE: Reasonable covenants against competition may be
considered to run with the land when they serve a purpose
of facilitating orderly and harmonious development for
commercial use.
2. Common Scheme Doctrine
a. Evans v. Pollock
i. Evans sought to enjoin the commercial use of
unrestricted lots within a restricted subdivision
under the implied reciprocal negative easement
doctrine.
ii. RULE: A general plan of subdivision restriction
need not apply to all tracts in a subdivision for the
doctrine of implied reciprocal negative easements
to apply. IS THE COURT’S APPROACH
WRONG HERE? SHOULD’T THERE BE A
WRITING IN AN EQUITABLE SERVITUDE?
3. Sanborn v. McLean
a. Sanborn and McLean trace the titles to their adjoining lots
to the proprietor of the subdivision. Residences are built
on all the surrounding lots. Sanborn objected to McLean’s
erection of a gas station on her lot.
b. RULE: If the owner of two or more lots, which are related
to each other, sells one with restrictions that are to benefit
the land retained, during the period of restraint, the owner
of the lot or lots retained can do nothing forbidden to the
owner of the lot said. This is the doctrine of reciprocal
negative easements.
4. Riley v. Bear Creek Planning Committee
a. Riley purchased a lot in a subdivision; however, the deed
did not include a restrictive covenant that was imposed on
the surrounding lots.
b. RULE: Restrictive covenants are only enforceable against
subsequent grantees when the restriction is in the chain of
title and the grantee has actual or constructive notice.
5. Blevins v. Barry-Lawrence County ARC
a. Blevins contended that a group home for retarded adults
violated the restricted covenant on the land.
b. RULE: Ambiguous restrictive covenants on the land
should be read narrowly to allow the least restrictive use of
the land. Public policy opposes restrictions on land,
especially in this context.
6. El Di, Inc. v. Town of Bethany Beach
 a.
Bethany Beach sought to enforce a restrictive covenant
prohibiting the sale of alcoholic beverages, even though the
nature of the neighborhood had changed greatly since the
creation of the covenant.
b. RULE: A restrictive covenant will not be enforced where a
fundamental change in the nature of the neighborhood has
made the purpose sought by the covenant to be
unattainable.
7. Blakely v. Gorin
a. Blakely wanted to build a hotel to be connected by a
passageway over an alley with an existing structure owned
by him.
b. RULE: Building restrictions may be denied specific
enforcement where they would unreasonably impede the
most feasible use of land and money damages would
adequately compensate the party asserting the restriction.
VI. THE ESTATES SYSTEM
A. Freehold estates
i. Present and Future interests
1. Fee Simple Absolute
a. What language creates the estate?
i. At common law:
1. “To A and his heirs . . .”
ii. Today:
1. “To A . . .”
2. “To A in Fee Simple
iii. If the seller fails to indicate that he intends to
create a future interest, the courts will presume
that the buyer receives all the ownership.
b. What are the estate’s distinguishing attributes?
i. Absolute ownership of potentially limitless
duration.
ii. It is freely alienable (transferable inter vivos).
iii. It is freely devisable (you can leave it in a will).
iv. It will pass by the statutes of intestacy if the owner
dies interstate.
c. Is there a future interest to accompany it?
i. No Future interest (A living person has no heirs).
ONLY “A” HAS A VIABLE INTEREST!
2. Fee Simple Conditional
a. “To A and the heirs of his body.”
i. If “A” has a male heir, he can transfer his land in
FSA unless he sells the land to another. This
changed into the fee tail in 1285.
3. Fee Tail
a. Language
i. “To A and the heirs of his body . . .”
b. Attributes
i. Virtually abolished in the U.S.A. (Not in South
Carolina).
ii. Kept land all in the family. The fee tail would pass
automatically to the holder’s lineal blood
descendant. You couldn’t sell your interest, you
could only grant life estates per autre vie in the life
of the current holder of the Fee Tail which would
 end when he died and pass onto the next
generation.
c. Future Interests
i. In the grantor, “O”. “O” holds a future interest, a
reversion.
1. If “o” grants to “a” and “a” has no heirs,
“o” gets a reversion
ii. Remainder
1. If “o” grants “to ‘a’ and if the bloodline
gives out it goes to ‘z’”, “z” has a
remainder.
ii. Defeasable Fees
1. The courts don’t generally favor these. YOU MUST USE
LANGUAGE OF DURATION TO HAVE THESE WORK {i.e. “so
long as”, “until”, “during”, etc.}.
a. Words of hope are usually not found to create a
defeasable fee.
i. They create FSA.
b. RESTRAINTS ON ALIENATION ARE VOID.
i. Any absolute ban on the power to sell or transfer
is frowned upon and banned as repugnant to
public policy.
c. It is important to expressly mention the conditions of the
reverter for the reverter to hold.
d. Fee Simple Determinable
e. Language
i. “O” to “A” for so long as (she remains a lawyer) . .
.
ii. “O” to “A” until . . .
iii. “O” to “A” during (the Yankees reign as world
series champs) . . .
f. Attributes
i. Present estate automatically ends upon the
happening of a stated event. THE ESTATE
ALWAYS REMAINS SUBJECT TO THE
CONDITION NO MATTER WHAT YOU DO
WITH IT.
ii. It is devisable (you can leave it in a will)
iii. It will pass by the statutes of intestacy if the owner
dies intestate.
iv. It is alienable.
g. Future interests
i. Possibility of Reverter (this only follows the Fee
Simple Determinable).
1. Once the condition is violated, if the
former grantee steps on the land, they are
a trespasser and the clock for adverse
possession begins.
2. BECAUSE THE FUTURE INTEREST
IN THE GRANTOR, IT IS NOT
SUBJECT TO THE RULE AGAINST
PERPETUITIES.
2. Fee Simple Subject to a Condition Subsequent
a. Language
i. “O” to “A” but if X event occurs, grantor reserves
the right to reenter and retake.
 b. Attributes
i. This estate isn’t automatically terminated. It can
be cut short at the grantor’s option if the stated
condition is violated.
ii. It is devisable
iii. It is alienable
iv. It is subject to the laws of intestacy
c. Future Interests
i. Right of entry (a.k.a. Power of termination).
1. At common law, the right of entry wasn’t
transferable or devisable. Now it is in
most states.
a. In some states, if you try to
transfer it, you destroy it and the
present possessor gets the land in
FSA.
2. THE RIGHT OF ENTRY ISN’T
SUBJECT TO THE RULE AGAINST
PERPETUITIES.
3. Once the grantor tries to use his right of
entry, the clock for adverse possession
starts.
3. Fee Simple Subject to an Executory Interest.
a. Language
i. “O” to “A” but if X event occurs then to “B”.
b. Attributes
i. If the condition is broken, the present estate is
forfeited and it goes to a third party. IT IS
ALWAYS SUBJECT TO THE CONDITIONS
ii. It is devisable
iii. It is alienable
iv. It is subject to the statutes of intestacy.
c. Future Interests
i. An Executory Interest
1. An executory interest is a future interest
in a third person that cuts short the
present estate.
2. An executory interest is transferable.
3. It is never vested. IT IS ALWAYS
SUBJECT TO THE RULE AGAINST
PERPETUITIES.
iii. Life Estates
1. Must be measured in explicit lifetime terms. NEVER BY TIME.
2. Difference between Fee Simple interests and life estates
a. A fee simple owner can choose who will own the property
after death by writing a will or by using the state intestacy
statute.
b. A life estate owner can transfer the property; however, this
interest is subject to the terms of the life estate (i.e., it
terminates on the death of the person who it was granted
to).
3. Formation
a. Language
i. “O” to “A” for life.
1. “A” is the life tenant
b. Attributes
 i. Alienable. IT CREATES A LIFE ESTATE PER
AUTRE VIE. If “A” sells to “B” and “A” dies.
The land reverts from “B” to “O”.
c. Future Interests
i. The grantor has a reversion.
1. Never subject to the RULE AGAINST
PERPETUITIES.
ii. If to someone else, it is a remainder.
1. REMAINDERS MAY BE SUBJECT TO
THE RULE AGAINST PERPETUITIES.
4. Life Estate Per Autre Vie
a. Language
b. Attributes
i. A Life estate measured by a life other than that of
the grantee.
c. Future Interests
i. Reversion in the grantor.
1. NEVER SUBJECT TO THE RULE
AGAINST PERPETUITIES.
ii. Remainder in a third party.
1. MAY BE SUBJECT TO THE RULE
AGAINST PERPETUITIES.
5. Defeasible life estates
a. “A to B for life provided that not used for . . . if not then to
C.”
i. B has a life estate unless they violate the condition.
ii. C has an executory interest because C cuts short
the prior estate.
6. Powers of Appointment
a. A right granted by the property owner to transfer greater
property interests than the owner has.
i. The current holder can wipe out a remainder in
another.
b. Types
i. The Right to Invade the Corpus
1. “A to B for life, then to C; however, B
shall have the right to invade the corpus if
economically necessary for her
maintenance and welfare.
a. B can sell the property in FSA
even though there is a life estate.
7. Remainders
a. Defined
i. A remainder is a future interest in a transferee
that can become a present possessory estate, only
on the natural expiration of a prior estate created
in favor of another transferee in the same
instrument and which does not follow a fee simple
interest.
b. Contingent and Vested Remainders
i. Contingent Remainders
1. The remainder will go to a person who
cannot be ascertained at the time of
conveyance.
2. It may go to an unascertained group of
people.
 3. Word order matters.
a. If the condition is stated 1st or it
is in the statement of the
remainder, it is a contingent
remainder.
b. If the condition is stated last, it is
a vested remainder.
i. Contingent Remainder:
“O to A for life, then to B
if she survives A,
otherwise to C.”
ii. Vested Remainder
Subject to complete
divestment: “O to A for
life, then to B, but if B
dies before A, then to C.”
4. ALL CONTINGENT REMAINDERS
ARE SUBJECT TO THE RULE
AGAINST PERPETUITIES.
5. Contingent remainders are destructible.
Every Contingent Remainder is followed
by an unstated reversion if the
contingency never occurs.
a. Most states have gotten rid of
destructibility. Thus, under these
rules, there will be an unstated
reversion in the grantor that will
spring to the party once the
condition occurs.
i. Example: “A to B for
life remainder to the
grads of 2003.” If B dies
in 2001, the land will
revert to A and then
spring to the grads in
2003. Under the
common law this would
have been destroyed.
ii. Alternate Contingent remainders
1. Two Contingent remainders that can
never happen at the same time but exist
simultaneously until a triggering event
prevents one from ever vesting.
iii. Destructibility of Contingent remainders
1. Contingent remainders are destroyed if
they did not vest before the life estate
ended (the condition wasn’t fulfilled b/f
the death of the measuring life)
2. Destroyed by merger
iv. Vested remainders
1. Absolutely Vested Remainders
a. The remainderman is
ascertained.
i. Not Subject to the rule
against perpetuities.
 2. Vested Remainders Subj. to Open
a. The amount that any person may
get is subject to more people
fitting into the category.
i. At least one person in
the class must be alive
for it to be considered a
vested remainder subject
to open. Otherwise it is
a contingent remainder.
3. Vested Remainder Subj. to Complete
Divestment
a. A vested remainder that may be
destroyed by an event that occurs
after the original conveyance.
b. “O to A for life, then to B, but, if
B fails out of law school, the
property shall revert to O.” The
comma after “then to B” is key.
That makes it a VESTED
Remainder subj. to complete
divestment.
c. THIS IS NEVER INVALID
UNDER THE RULE AGAINST
PERPETUITIES.
c. Rule In Shelly’s Case
i. “O to A for life, remainder to A’s heirs” becomes
“O to A for life, remainder to A.” This is FSA in
A.
ii. The word “heirs” triggers this rule.
d. The Doctrine of Worthier Title
i. “O to A for life, remainder to the heirs of O”
becomes “O to A for life, reversion to O”.
ii. The remainder in O’s heirs became a reversion in
the grantor.
iv. The Rule Against Perpetuities
1. “No interest is good unless it must vest, if at all, no later than 21
years after the death of some life in being at the creation of the
interest.”
a. This eliminates dead hand control of property.
2. What is a “Life in Being”?
a. The ascertainable people alive at the time of the granting.
i. The focus should be on those people alive at the
time of the granting who are specifically NAMED
in the granting or those that get specific interests.
ii. YOU ARE NOT A LIFE IN BEING FOR
TESTING YOUR OWN INTEREST.
3. Timing
a. A future interest vests when:
i. All conditions precedent have been satisfied
ii. The taker is alive and ascertained.
iii. Where there is a grant to a class, all the members
of the class are there and we know what their
share is.
iv. What does it apply to?
Always Applies to: Sometimes Applies To: Never Applies To:

1.) Contingent 1.) Vested Remainder 1.) Absolutely vested

Remainders Subject to Open (50% remainders
of states)
2.) Executory Interests 2.) Vested Remainders
Subject to Complete
Divestment
3.) Powers of 3.) Reversions
Appointment
4.) Options to purchase 4.) Possibility of
(not in leases) Reverter
5.) Rights of first 5.) Rights of entry
refusal in condos and
co-ops (Some states say
that this right is
invalid, others say that
it is okay for 21 years
after the building is
built but invalid after
that).
6.) ANY present estate
b. Rules that make conveyances automatically invalid under
the Rule
i. The All or Nothing Rule
1. If a single person exists in the category
that may invalidate the rule, the rule
strikes all parties in the category.
ii. The Unborn Widow Rule
1. “A to B for life then to B’s widow for life,
then to B’s surviving children.”
a. B may be alive and married to Z.
Z has a vested remainder. B’s
kids have a contingent remainder
that is void under the rule against
perpetuities. Z could die and B
could remarry. This new wife
may not have been a life in being
at the time of the conveyance.
She could live 21 years after B’s
death, invalidating the remainder
in B’s kids because it might not
vest in 21 years.
2. This gets rewritten “A to B for life, then
to B’s widow for life.”
iii. The Fertile Octogenarian Rule
1. “A to my children for their lives then to
my surviving grandchildren.”
a. This is invalid because “A” may
have another child that is not a
life in being at the time of the
conveyance. Thus, he could hold
the land for 21 years after all of
the deaths of all the other lives in
being.
i. Most states have adopted
a RULE OF REASON.
80-year-old men w/
vasectomies will not be
subject to the rule.
There is an age range: 40
years old for women and
65 years old for men.
c. Dealing with invalid conveyances under the rule.
i. English Rule: There are no unstated reversions;
the last valid grant was given in Fee Simple
Absolute.
ii. American Rule: We invent an unstated reversion
after striking the offending language.
iii. The Cy Pres Doctrine
1. In situations in which things would be
invalidated, you should read in common
sense.
a. Under Cy Pres, the conveyance is
corrected so that it will work.
iv. The Wait and See Rule
 1. Under the wait and see rule, we wait until
21 years after all lives in being have died
to see if the condition vests.
d. The Uniform Rule Against Perpetuities Reform Act
i. Any future interest in a grantee must vest within
90 years of its creation or it is void from inception.
If voided, you modify the property interests so
they work.
v. Restraints on Alienation
1. Forfeiture restraints
a. “To A and his heirs, but for 10 years, A cannot sell. If A
sells, then to Y.”
i. Courts don’t automatically void this. They do a
reasonable test. If someone is there to waive the
restriction, then it is okay.
2. Disabling Restraints
a. “To A for life, but for 10 years, A cannot sell.
i. AUTOMATICALLY VOID.
3. Promissory Restraints
a. “A” promises to sell land to B. Before B buys the land, he
cannot sell his option to buy (cannot alienate his option to
buy).
B. CASES:
i. Wood v. Board of County Commissioners of Fremont County
1. Wood claimed that a grant of land to the Commissioner of
Freemont County was subject to a condition subsequent that the
land be used as a hospital.
2. RULE: A grant of fee simple determinable must clearly state that
the estate will terminate if not used in accordance with the grant.
ii. Forsgren v. Sollie
1. Forsgren granted land to Sollie subject to several conditions
subsequent. When Sollie failed to meet these conditions, Forsgren
retook possession of the lands.
2. RULE: Where the language of a deed clearly evinces the intent to
create a fee simple subject to a condition subsequent, the absence of
a provision for reentry will not be fatal to the grantor’s claim.
iii. Riste v. Eastern Washington Bible Camp, Inc.
1. Riste wanted to sell his property in a manner that violated the
occupancy and resale restrictions in the deed.
2. RULE: A restrictive restraint on the sale of the fee simple title is a
violation of public policy.
iv. Hankins v. Mathews
1. The holder of land bequeathed by an uncle transferred his interest
in the property despite a ten-year restriction against such transfers,
and the heirs at law of the deceased filed suit, contending that the
property had reverted to them.
2. RULE: Where land is granted or devised in fee, a provision of any
sort that the taker shall not alienate, or shall not have power to
alienate, is void.
v. Horse Pond Fish & Game Club, Inc. v. Cormier
1. Horse Pond transferred an unrestricted property to a third party
who then transferred the property back to Horse Pond with a
restraint on alienation.
2. RULE: A restrictive covenant is legal so long as its reasonable in
light of the justifiable interests of the parties.
vi. Central Deleware County Authority v. Greyhound Corp.
 1. The Delaware Authority brought this action to quiet title in land
that it had used as a sewage treatment plant, alleging that the
restrictive covenant in the deed for the land, allowing for
repurchase of the properties were void as violative of the rule
against perpetuities.
2. RULE: A restrictive covenant in a deed allowing unlimited time
for repurchase of property conveyed is a purchase subject to the
rule against perpetuities.
vii. Texaco Refining and Marketing, Inc. v. Samowitz
1. Texaco exercised an option to purchase commercial property that it
was leasing to Samowitz. Samowitz refused to turn the property
over as he claimed that it violated the rule against perpetuities.
2. RULE: An option to purchase contained in a commercial lease, at
least if the option must be exercised within the leasehold term, is
valid without regard to the rule against perpetuities.
viii. Cambridge Co. v. East Slope Investment Corp.
1. When East Slope sold its unit in a condominium complex to a
third-party buyer, despite the exercise by Cambridge, one of the
other unit owners, of its preemptive right to purchase the unit,
Cambridge brought suit to set aside the conveyance as violative of
the rule against perpetuities.
2. RULE: The rule against perpetuities will be applied to preemptive
rights only where the purposes of the rule are served.
C. The Doctrine of Waste
i. The life tenant is entitled to all ordinary uses and profits from the land.
ii. THE LIFE TENANT MUST NOT COMMIT WASTE. HE MUST NOT
INJURE THE INTEREST OF THE FUTURE INTERST HOLDER
1. Voluntary Waste: It results in a decrease in the value of the
property. IT IS WILLFUL DESTRUCTION OF PROPERTY.
2. Permissive Waste: The land naturally falls into disrepair.
a. You must keep up the premises in reasonably good repair.
b. The life tenant must pay ordinary taxes under the lease.
3. Ameliorative waste- must maintain the premises.
a. Must keep the premises in normal repair. You don’t need
to engage in acts to enhance the premises value. It is a bad
idea unless all of the future interest holder’s consent to it.
 iii. CASES
1. Moore v. Phillips
a. Moore and her son sued as remaindermen to recover
damages for the deterioration of a farmhouse resulting
from neglect by the life tenant, Moore’s mother.
b. RULE: Laches is an equitable defense and will not bar
recovery for permissive waste from mere lapse of time nor
where there is a reasonable excuse for non-action of a
party in making inquiry as to his rights and asserting
them.

D. Constructive Trusts
i. A duty or relationship imposed by courts of equity to prevent the unjust
enrichment of the holder of title to, or of an interest in, property which such
holder acquired through breach of duty, fraud or some other circumstances
making it inequitable for him to retain it against the claim of the
beneficiary of the constructive trust.
1. Roper v. Edwards
a. Roper brought this action to compel Edwards to convey
one acre of the land acquired by Edwards from Roper’s
grandmother in settlement of a civil suit, with the
stipulation that the one acre be conveyed to Roper as
specified in the grandmother’s will at her death.
b. RULE: A constructive trust will be imposed on the holder
of legal title acquired through conduct short of actual
fraud where such retention would result in unjust
enrichment.
E. Anti-competitive Covenants
i. These are enforceable at law if reasonable (i.e. failing to substantially result
in an anti competitive effect.
F. Special Groups.
i. Women
1. Dower (a woman gets 1/3 of husbands land assets) and Courtesey
are gone.
a. A surviving spouse has a right to a minimum percentage of
the deceased spouse’s estate.
b. Western states use “community property”. The couple
owns all property as a couple.
ii. African Americans
1. Shelley v. Kraemer
a. The Kraemers sought to oust the Shelleys, African-
Americans, from their recently purchased property on the
grounds that it was subject to a racially restrictive
covenant.
b. RULE: The Eq. Pro. Clause of the 14 th Amendment to the
U.S. Const. Prohibits judicial enforcement by state courts
of restrictive covenants based on race or color.
2. Evans v. Abney
a. Senator Bacon and the park held in trust for white kids.
b. RULE: The cy pres doctrine is not applicable when the
testator would presumably have preferred to have the
whole trust fail if the particular purpose of the trust
became impossible to accomplish.
VII. Nuisance
A. An unreasonable use of land which causes substantial harm to another’s use of their
land.
 i. Proper remedies-
1. Injunctions – stop doing what you are doing.
2. Damages - you can continue doing what you are doing but you
must pay your neighbors.
B. Types of Nuisance
i. Nuisance per se – an act that is a nuisance simply because of the activity.
(e.g. a funeral home in a residential area).
ii. Nuisance in fact – a nuisance that happens because you are doing things in
a certain way.
iii. Private nuisance – a nuisance that hurts only one neighbor
iv. Public nuisance – effects a large group of people (often defined by statute).
A prosecutor needs to bring the claim, the public can’t.
C. Nuisance vs. Trespass
i. Trespass includes the physical invasion of your property.
ii. Nuisance does not need a physical invasion.
D. CASES
i. Page County Appliance Center, Inc. v. Honeywell, Inc.
1. Honeywell placed a computer in the business adjoining the
Appliance Center. It interfered with the Center’s business of
selling TV sets.
2. RULE: Lawful activity constitutes a nuisance if it unreasonably
interferes with another’s enjoyment of his or her property.
ii. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
1. 45-25 sought an injunction that would enjoin the Fontainebleau
Hotel’s construction of an addition that would block all sunshine
from 45-25’s hotel.
2. RULE: There is no legal right to the free flow of light or air from
an adjoining parcel of land.
iii. Prah v. Maretti
1. Prah sued to enjoin Maretti from building on his land so as to
block the flow of sunlight to Prah’s solar heated house.
2. RULE: The doctrine of prior appropriation (who got there first
has a right to a resource) applies to sunlight. Private nuisance law
is better than the doctrine of ancient lights to resolve suits like this.
VIII. Concurrent Estates
A. Joint tenancy
i. Attributes
1. “Joint tenants own by the whole and by the part”.
a. Joint tenants are regarded as one singular unit. (They
each own a presumptive share in proportion to the number
of joint tenants).
b. They share a future interest. When one tenant dies, the
other tenants share the right of survivorship.
c. It is transferable inter vivos.
d. It is NOT devisable or descendible.
ii. How to create one …
1. 4 Unities
a. TIME: Must get it at the same time
b. TITLE: In the same title (in the same instrument)
c. INTEREST: In the same interest (with identical interests)
d. POSSESSION: With identical rights to possess the whole.
2. You need a clear expression of the right of survivorship.
a. You need to use language like
i. “O” to “A” and “B” as joint tenants with a right
of survivorship.
b. Use of a straw man
 i. You cannot convey to yourself in a Joint tenancy
iii. How to destroy one
1. Severance (by sale)- if you sell your interest, you end the Joint
tenancy. It severs the joint tenancy as to that selling joint tenant’s
interest.
a. The person who buys from the selling joint tenant is a
tenant in common.
b. The remaining joint tenants are still joint tenants with
each other. They are tenants in common with the new
purchaser.
2. Partition
a. They may agree to partition the land.
b. It may be done by a judicial action (it is an equitable
proceeding).
c. Partition in kind- a physical division of the property.
d. Forced Sale- the court could order a forced sale with the
proceeds distributed appropriately.
3. Mortgage
a. A minority of states follows the title theory of mortgages.
It says the execution of a mtge by one joint tenant severs
the joint tenancy as to the debtor joint tenant’s interest.
b. The lein theory of mtges- a joint tenant’s execution of a
mtge on their share will not sever the joint tenancy.
B. Dual Life estates with alternate contingent remainders
i. Indestructible property rights of survivorship with life estates.
1. “O to A and B as life tenants, with a remainder in A if A survives B
and a remainder in B if B survives A.
C. Tenancy by the entirety (Courts prefer this to joint tenancy if the language in the
conveyance is vague).
i. Recognized only in a minority of states (Only for husbands and wives)
ii. The tenants share the right of survivorship
iii. It arises presumptively in any conveyance to a couple if they are married.
iv. Creditors of only one spouse cannot touch the land in tenancy by the
entirety.
v. A unilateral conveyance by one of the spouses is a nullity. IT CAN ONLY
BE SEVERED IN DIVORCE.
D. Tenancy in common
i. Attributes
1. Two or more people own with no right of survivorship
2. Each cotenant owns a part with a right to possess the whole
a. It is descendable
b. It is devisable inter vivos
c. It is alienable.
ii. Courts like the tenancy in common. They prefer it to joint tenancy.
iii. Language
1. To “A” and “B” as tenants in common.
iv. RIGHTS OF TENANTS IN COMMON
1. Possession: Each cotenant has a right to possess the whole.
a. If one cotenant wrongfully excludes another, he has been
an OUSTER.
2. Rent: Rent from a cotenant in exclusive possession
a. A cotenant in exclusive possession is not liable to the others
for rent unless he has ousted the others.
b. What about rent from third parties?
 i. A cotenant that leases the property to another
must provide his cotenants with his fair share of
the rental income.
3. No Adverse Possession: Unless he has ousted the others, one
cotenant in exclusive possession cannot acquire the land through
adverse possession.
4. Land costs: Each cotenant is responsible for their part of the
carrying costs of the land (taxes, etc.)
5. Contribution: For any repairs made, the repairing cotenant has a
right to contribution for any repairs made so long as she tells the
other cotenants of the needs and she makes the repairs reasonably.
a. There is no affirmative right to contribution for
improvements made during the life of the cotenancy. At
partition, the improver gets a credit equal to any increase
in value brought by her efforts. If the improvements result
in decrease in value, they lose the value.
6. A cotenant must not create WASTE.
v. Ending a tenancy in common
1. Partition- divides the land, ending the co-tenancy.
2. Ouster
a. Actual- physically kicking cotenant off of the land.
b. Constructive- The land is too small for all of the cotenants
to stay there.
 E. CASES
i. Olivas v. Olivas
1. Because of a lengthy delay between the Olivas’ divorce decree and
the property division, Mr. Olivas waited several years before
seeking rent from Mrs. Olivas, who had remained in their home.
2. RULE: In a divorce proceeding where a spouse departs a residence
held as community property due to marital friction, a constructive
ouster is effected, but if the spouse abandons the home for another
intimate partner, a constructive ouster is not effected.
ii. Carr v. Decking
1. Father and son are cotenants. Father executed a lease with
Decking without son’s permission.
2. RULE: Where a cotenant lawfully leases his interest to a third
party without the consent of the other tenant, the other tenant
cannot demand use of the entire parcel, rather, he can only demand
to be let into co-possession.
iii. Tenhet v. Boswell
1. Johnson, a joint tenant with Tehnet leased his interest in the joint
tenancy property to Boswell for a term of years and died during
that term.
2. RULE: A lease does not sever a joint tenancy and expires on the
death of the lessor joint tenant.
iv. Kresha v Kresha
1. A dissolution decree awarded land held in co-tenancy to Rose
Kreshda, who then attempted to terminate her son’s pre-
dissolution lease on the property.
2. RULE: Pursuant to a divorce proceeding, where one party is
awarded the entire ownership of certain lands, those lands are
taken subject to leasehold interests in the exspouse’s former
ownership interests.
v. Sawada v. Endo
1. The Sawadas who were injured by the Endos and could not obtain
satisfaction of their judgments from Endo’s personal property,
sought to set aside a conveyance by Endo and his wife of some land
that had been held by them as tenancy by the entirety.
2. RULE: An individual spouse’s interest in property owned in
tenancy by the entirety is not subject to the claims of his or her
individual creditors; thus, the spouses can jointly convey the
property free of such claims.
IX. Leasehold estates
A. ISSUES
i. Does the landlord have to provide actual possession or the right to possess?
1. American rule: Landlord must give legal right to possess.
2. English rule: Landlord must give actual possession..
B. Term of years
i. Attributes
1. This is a lease for a fixed and determined period of time (could be
any amount of time).
a. it could be one day, two months, eight years.
2. You don’t need notice to terminate.
3. A term for years greater than one year must be in writing to be
enforceable (STATUTE OF FRAUDS APPLIES).
a. Death of either party doesn’t terminate the tenancy.
b. If future interest is in the landlord it is called a reversion.
If in another party, it is called a remainder.
C. Periodic tenancy
i. Attributes
1. It is continuous (it automatically renews itself). It continues until
either landlord or tenant gives proper notice for termination.
2. Language
3. To “A” from year to year. Or month to month.
4. IT CAN BE IMPLIED.
a. If there is no explicit language of duration, but there is
rent paid at designated intervals, it is implied that the
period is the term of the rent.
b. THE ORAL TERM OF YEARS IN VIOLATION OF THE
STATUTE OF FRAUDS CREATES AN IMPLIED
TENANCY.
c. The holdover doctrine
ii. IN a residential lease, if L decides to hold over a
tenant, there is an implied periodic tenancy
created
5. To terminate
a. Common law: Must give notice equal to the length of the
period of the tenancy (unless the period is one year or
greater, then all you need is six months)
b. The parties may privately agree to lengthen or shorten
these provisions in the lease.
6. To raise rent
a. The landlord must give a notice.
D. Tenancy at will
i. Language
1. To “T” as long as L or T desires. (The right to terminate, if
unstated is implied to be reciprocal).
ii. Attributes
1. Tenancy for no fixed period or duration.
2. A reasonable demand to quit or vacate is required to end the lease
(30 day notice requirement).
a. Tenancy at sufferance
i. This is a holdover. It lasts only as long as it takes
the landlord to evict the holdover or creates a new
tenancy.
E. Tenancy at sufferance
i. A tenant rightfully in possession who wrongfully stays after the leasehold
has terminated (holdover tenant).
F. Landlord Tennant Relationships
i. Tenant’s Duties
1. Tenant’s liabilities to third parties
a. Tenant needs to keep the premises in good repair. Tenant
is responsible and will be held liable for injuries suffered
by third parties even though the landlord has expressly
promised to make all repairs.
2. Duty to repair
a. Tenant must merely maintain the premises.
b. Tenant must not commit waste.
i. If any waste, then you are liable.
3. Duty to pay rent
a. If tenant breaches the landlord can . . .
i. If the tenant is in possession . . .
1. Move to evict through appropriate
judicial action.
 a. The landlord is still entitled to
rent until the person is out of
possession.
2. Sue for the rent owed.
ii. If the tenant is out of possession . . .
1. Surrender- if the tenant accepts the
tenant’s surrender, the problem is over
and the lease is amicably terminated. To
surrender it needs to be in writing.
2. Ignore- leaves the apartment and does
nothing to use the appt. In the face of a
breaching tenant, you should lease the
premises on the tenant’s behalf.
3. Relet- you should keep the appt together.
ii. Landlord’s duty
1. Duty to deliver possession
a. The majority rule- landlord’s must put tenant in actual
physical possession at the start of the lease.
b. The minority rule- landlord must convey the right to
possess the appt.
2. The covenant of quiet enjoyment
a. An implied promise in every residential and commercial
lease. The implied covenant tells us that a tenant has a
right to quiet use and enjoyment of the premeis without
interference from the landlord.
b. How is it breached?
i. Overtly- By actually and wrongfully evicting the
tenant from whole or part of the rental.
ii. Implicitly- when the landlord commits
constructive eviction.
1. Constructive eviction
a. Substantial interference by some
act or failure to act by the
landlord.
b. Some chronic problem that
interferes with quiet enjoyment
c. Notice must be given by tenant to
landlord to have situation
remedied. If the problem is not
fixed within a reasonable time,
then there are issues.
d. Goodbye or get out.
2. Exceptions at common law:
a. Landlord has a duty not to bring
nuisances on the property.
b. If the offensive conduct occurs in
a common area it is the
landlord’s responsibility.
iii. The Implied Warranty of Habitability
1. Applies to residential leases only.
2. The Premises must be maintained in habitable condition for the
duration of the lease. IT IS NONWAIVABLE? The states are split
on theis.
3. The warranty may be part of the housing code.
4. If there is a breach of the implied warranty of habitability…tenant
could . . .
 a. Move out
b. Repair and deduct
i. The tenant can make a repair and deduct the costs
from future rent.
c. Reduce
i. Tenant can reduce the rent equal to the fair rental
value of the property with the defects.
d. Remain
i. The tenant can remain in possession and sue the
landlord for damages.
5. LANDLORD DEFENSES TO THE IMPLIED WARRANTY
a. They didn’t know about the problem.
b. Not enough time since notification.
c. Not a substantial problem.
d. The problem was caused by the tenant.
e. The repairs are underway.
f. The tenant won’t allow the landlord to fix it.
g. No such condition exists.
iv. RETALIATORY EVICTION
1. If a tenant, in good faith, reports a landlord lawfully for housing
code violations . . .
a. The landlord is barred from:
i. harassing the tenant
ii. terminating the lease
iii. raising the rent unfairly
iv. failing to renew lease.
v. Assignment vs. the Sublease
1. Tenant can transfer their interest in whole or in part
a. An assignment is when a tenant transfers the entire
remaining interest in the property to another. The
landlord and the new tenant come into privity of estate.
The landlord is liable to the new tenant and the new tenant
is liable to the landlord for all covenants in the original
lease that run with the land.
i. Landlord and the old tenant will always be liable
to each other in secondary liability.
1. T1 assigns to T2. T2 assigns to T3. T3
does wrong on the property. If L sues T3,
L wins b/c they are in privity of estate.
They are not in privity of contract unless
T3 struck a deal with L. L can proceed
against T1 because there is still privity of
contract. L cannot proceed against T2 b/c
there is no privity of estate or contract.
2. If a tenant sublets . . .
a. Original tenant is still in privity with the landlord. The
new tenant is only in privity with the old tenant. The old
tenant has a future interest in the land.
i. In subleases . . .
1. T1 and the landlord’s relationship will
always remain in tact.
vi. CASES
1. Vasquez v. Glassboro Service Association, Inc.
a. After Vasquez’s employment as a migrant farmworker was
terminated, he was not allowed to remain overnight in the
 employer-provided barracks until he could find alternative
housing.
b. RULE: When a migrant farmworker’s employment is
terminated, he may be removed from the employer-
provided housing only through a judicial proceeding.
2. Sommer v. Kridel
a. Sommer did not attempt to re-let the premises he had
leased to Kridel even though the opportunity arose to do so
and Kridel had specifically informed Sommer that he
would not take the room and asked for acceptance of his
surrender.
b. RULE: A landlord had a duty to mitigate damages when a
lessee surrenders. He must make a reasonable effort to re-
let the premises.
X. Condominiums and Co-operatives
A. Condominums
i. Ownership
1. Own the buildings and the common areas as tenants in common.
You cannot sell or partition a common area.
2. You own the space in your condo in FSA.
ii. Board Of Trustees
1. THE SIZE OF YOUR CONDO DETERMINES YOUR VOTE ON
THE BOARD OF TRUSTEES
2. The developer has voting rights of unsold units until more than
50% of the units are sold.
B. Co-operatives
i. Ownership
1. A co-op is a single entity (a not for profit organization). Each co-op
owner owns shares in the stock of the organization. Those shares
reflect your right to purchase x amount of space and vice versa.
2. Each owner pays his or her share of everything. If one person
defaults the whole place could fold.
C. CASES
i. Wolinsky v. Kadison
1. The Board of Directors for a condo complex exercised its right of
first refusal regarding Wolinsky’s offer to purchase a
condominium.
2. RULE: No person shall be denied the right to purchase or lease a
unit because of race, religion, sex, sexual preference, marital status
or national origin.
ii. Aquarian Foundation, Inc. v. Sholom House
1. When a condominium owner sold her unit to Aquarian without the
consent of Sholom’s board of directors, Shalom House sued to set
aside the conveyance
2. RULE: A clause in a condominium’s declaration permitting the
association to arbitrarily withhold its consent to transfer a unit
constitutes an unreasonable restraint on alienation.
iii. Breene v. Plaza Towers Association
1. Breene owned a condominium in the Plaza Tower complex and was
prohibitied from renting her unit by the Plaza Towers Assoc.
2. RULE: A restriction adopted after the purchase of a condo unit
will not be enforceable against the purchaser except through the
purchaser’s acquiescence.
iv. O’Buck v. Cottonwood Condominium Assoc., Inc.
1. Cottonwood found that roof leakage was caused by people walking
on the roof to fix antennas. They prohibited antennas anywhere on
the building. The O’Bucks lost reception on three of their TVs.
2. RULE: Condominium declarations and bylaws granting a board
the authority to enact rules banning TV antennae will withstand
judicial scrutiny if they are deemed reasonable.