Property Outline

Prof. Kali Murray

Fall 2006

I. What type of property is at issue?

A. Types
a. Tangible
1. Real: rights to land, territory, and the things on it (trees, mineral rights,
airspace, etc)
2. Chattel: tangible personal property that you can carry with you (books,
cars, etc)
b. Intangible: invisible things (copyrights, stocks, ideas, etc)
1. INS v. AP: News might be property
(i) AP gave value by expending capital
(ii) Public gave value by willingness to pay
(iii) Freshness/originality confers value
(iv)Labor is a way to acquire property interest
(v) Reward can create property interest
2. Motorola Test
(i) info gathered at cost
(ii) info is time sensitive
(iii) Δ use of info is free-riding
(iv)Δ service is in direct competition
(v) Δ services reduces incentive to produce service
B. Major themes of Property
a. Oppositional: Property owner’s absolute right of ownership v. other’s
(society’s) right to Property
b. Associational: collective recognition of ownership by others; unless society
recognizes it as property, it isn’t

II. How can you acquire property?

A. Creation
B. Find
a. Rule(Charrier v. Bell): if finder finds abandoned property, he generally has
the ownership claim to it; if it is mislaid or lost, he has no claim to it; goods
that are buried with the intent to be left buried perpetually have not been
“abandoned” and finder has no right
1. abandonment: owner forms an intent to relinquish all rights in the property
2. lost property: the owners accidentally misplaced it (no intent)
3. mislaid property: the owner intentionally left it somewhere-and then
forgets where she put it (though there is a time factor for the courts to
consider)
b. Doctrine of Discovery says that first possession is ownership
c. Modern Doctrine gives ownership to all, additional rights gained by
cultivation
C. Adverse Possession
a. Brown v. Gobble, Romero v. Garcia, Nome 2000 v. Fagerstrom
b. doctrine that transforms trespassers into owners; true owner seeks ejectment
c. majority rule requires trespasser to prove 5 elements with “clear and
convincing evidence” rather than a mere preponderance of the evidence
d. Requirements for adverse possession:
1. Actual possession: adverse possessor must actually possess the property in
question
2. Open, notorious and visible: use must be so visible that owner reasonably
should have known; possessor’s use must be similar to typical owner of
similar property
3. Exclusive- true owner must be excluded from ownership rights
(i) Fence is excellent evidence of exclusion
4. Continuous: adverse possessor cannot entirely give up possession at any
time
(i) Doesn’t mean that she can’t leave- but you cannot totally relinquish
possessory rights and responsibilities-
(ii) Tacking: the joining of consecutive periods of possession by different
persons to treat the periods as one continuous period
5. Adverse or Hostile: possessor is on the land o the true owner’s consent

(i) Possession is presumed to be non-permissive- so it is for true owner to

prove that he did in fact give permission
6. Statute of Limitations compliant- varies from state to state- usually 10-20
years (in MS its 10)-Statutory period ends once owner brings suit to get
adverse possessor off the land
(i) Exceptions to Statute of Limitations
(a) if adverse possession is made against a child
(b) if owner is incompetent
(c) if owner is in prison
(ii) Personal Property
(a) Conversion: on notice (statute begins) when property is stolen
(b) Discovery: statute begins when owner discovers property is
missing – requires prompt discovery by owner
(c) Demand: statute begins when owner demands return of stolen item
e. Adverse possessor’s state of mind: 4 approaches:
1. Objective test (majority) based on possession: possessor lacked permission
from the true owner – either did or didn’t
2. Claim of right: the adverse possessor must act toward the land as an
average owner would act
3. Intentional dispossession: adverse possessor must know that she is
occupying property owned by someone else and must intend to oust or
dispossess the true owner (controversial because it rewards wrongdoers)
(last three tests are subjective)
 4. Good faith: in some jurisdictions, only innocent possessors-those who
mistakenly occupy property owned by someone else-can acquire
ownership by adverse possession
f. Color of title possession claims (def. a written instrument or other evidence
that appears to give title, but does not do so)
1. Starts off with rightful possession
2. Then the deed was not recorded properly or did not describe the
boundaries of the property (ex: lack of signature of parties)
3. Through the actions of the adverse possessor, they can possess the land
and make a legitimate claim to the land.
(i) Romero (color of title dispute): An indefinite and uncertain description
of property in a deed may be clarified by the later acts of the parties
and the acts may establish adverse possession.
(ii) Nome 2000 Rule
(a) Squatters: a person who settles on property without any legal claim
or title: Seasonal use of property in an area where property is
generally used seasonally is enough to claim adverse possession
g. Prescriptive Easement: an easement created from an open, adverse, and
continuous use over a statutory period
1. differences between adverse possession and prescriptive easements
(i) adverse possession is a claim of land
(ii) prescriptive easement is for use of land
2. must meet same guidelines of adverse possession (open and notorious,
hostile, adverse, continuous and exclusive); except show use rather than
possession
(i) Rule: a general outline of consistent use is sufficient to establish a
prescriptive easement even if the specifications of the land used are
not definite
3. Problem with permission:
4. For A.P. claim, permission would be assumed
5. For P.E. claim, owner must exercise rights against use
(i) acquiescence – know about use without exercising right to exclude
h. Adverse Poss. of Chattels: title is passed for adverse possession of chattel only
by entrustment
1. Entrustment (U.C.C.) argument for good faith purchaser): the transfer of
possession of goods to a merchant who deals in goods of that type and
who may in turn transfer the goods and all rights to them to a purchaser in
the ordinary course of business
2. Theft
(i) True Owner  Thief  Bona Fide Purchaser (never has title)
(ii) Exceptions:
(a) True Owner  Thief  Merchant  BFP (has rights over true
owner)
(b) Seller (under duress)  Buyer  BFP (has rights once takes
possession)
(iii) If seller tries to get item back from buyer, he can recover
 (iv)If buyer sells to BFP, seller loses rights
(v) however, a BFP can then gain title to something by adverse possession
i. Encroaching structure: building on someone else’s property
1. absolute right to remove structure – nothing else matters
2. relative hardship – mistake is innocent, harm minimal, interference
minimal, cost of removal substantial
(i) either compensate true owner for damages (decrease in mkt value)
(ii) sell structure to not true owner for fair price
(iii) Court can decide for non-owner based on unjust enrichment
(a) Either sell to non-true owner for fair price
(b) Compensate non-true owner for improvements made
3. Predominant rule – true owner owns encroaching building
j. Argument for Rightful Owner
1. Discovery Rule (majority rule): SOL would only begin to run when the
titleholder discovers or reasonably should have discovered where the
stolen property is (i.e., a painting is put on display somewhere)
2. Demand and refusal rule (minority rule): allows for a cause of action
against a good faith purchaser when the titleholder makes a demand for
return of the chattel and the person in possession of the chattel refuses it
3. Defense of laches: if there is an unreasonable delay in rightful owner
bringing suit against good faith purchaser
D. Gift
a. Definition: Voluntary transfer of property for no consideration
b. Intent
1. Present, irrevocable transfer of property interest
2. Condition Precedent: “If you get me a beer, I’ll give you my outline.”
3. Condition Subsequent: “If you don’t give me a beer later, you have to give
my outline back to me.”
4. Future interest: When my wife and I divorce, I will give you a ring.”
c. Delivery
1. Actual Delivery: immediate transfer
2. Constructive Delivery: circumstances indicate that delivery occurred even
if not actually
3. Symbolic Delivery: some type of item is delivered that is generally
accepted as a symbol of the gift or confers access to the gift
d. Acceptance
1. If intended donee refuses to accept gift, title does NOT pass to the donee
e. Types
1. Inter-vivos
(i) Between two living parties if donor intends to give immediately
2. Causa Mortis
(i) Donor makes gift in anticipation of imminent death
(ii) Intent, Delivery, and Acceptance apply; in addition, the following also
apply:
(a) Donor must be about to die
(b) Donor must die
 (c) If Donor doesn’t die, he can revoke gift
(d) Donee cannot predecease the Donor
(iii) Causa Mortis gift can trump a will, that’s why there are so many
requirements
3. Testamentary Gifts
(i) Given after death of donor
E. Capture/Conquering
a. Acquisition of land by conquest removes all property rights from previous
owner
b. Rule of Capture: the principle that objects that are ferae naturae (ex. wild
animals, oil and gas) belong to the person who captures them, regardless of
whether they were originally on another person’s land or someone else was
pursuing them first
1. Wild Animals (Pierson v. Post): actual possession is the only way to prove
ownership because animals are ferae naturae (of a wild nature)
2. Oil and Gas (Elliff): the ownership interests of oil or gas lie with the
person who first extracts the mineral, regardless of if the mineral is under
someone else’s land, as long as the extraction is done by reasonable means
(good environmental standards, can’t damage others chances of extracting
oil, etc.)

III. What are the rights of a property owner?

Right to Exclude: you can exclude others Right of Access: the rights of others to
from your property – preeminent right come onto your property
Right to Use: You can use your property Right of Security from Harm: Cannot use
as you wish your land in a way that harms others
Right to Transfer: You can choose to Public Policy: Cannot transfer property in
transfer your property as you wish a way that violates public policy limitations

A. Right to Exclude
a. Trespass
1. Unprivileged intentional intrusions on property possessed by another -
property right = right to exclude but right to exclude is not absolute
2. Key factor in trespass case is consent
(i) Did the owner consent to let people on his land? Consent = waiver of
right to exclude
(ii) State v. Shack: Property rights are not absolute; “necessity, private or
public, may justify entry upon the lands of another.”
(a) In Shack, the interests of migrant workers were a critical public
policy issue that the courts could not ignore
(b) A landowner cannot use exclusion right to harm others on
property.
(iii) Desnick v. American Broadcasting Comp.: Though the consent
was procured through fraudulent statements, there was no invasion of
any interests that the tort of trespass was designed to protect, no
 interference was made with the business’s operations and no
embarrassing details of anyone’s life were made public.
(a) construe space in terms of relationship: doctor/patient privilege –
initial consultation didn’t make Δ a patient
(b) When a business opens itself up to the public, their right to exclude
is lessened greatly (as opposed to a private landowner).
(iv)Uston: Owners of property open to the public do not have the right to
unreasonably exclude particular members of the public, unless the
person is disrupting the business’s operations or poses a security risk
(a) focus moves from right to exclude to right of access - from “right
to exclude unless” to “right to come in unless”
(v) Majority rule: Amusement places have an absolute right to arbitrarily
eject or exclude any person consistent with state and federal civil
rights laws unless they are
(a) Innkeepers
(b) common carriers (bus, train, etc.)
b. Public Use Accommodation
1. Civil Rights Act of 1866
(i) limited to racial discrimination
2. Civil Rights Act of 1964
(i) includes religion, national origin, color)
(ii) Title II: modifies common law right to exclude
3. §1981. Equal Rights Under the Law
(i) Statement of Equal Rights: gives blacks same rights as whites, such as
right to enter contract, sue, give evidence, etc.
4. §1982. Property Rights of Citizens
(i) All citizens have the right to inherit, sell, buy, convey, etc. land
5. §2000a. Prohibition Against Discrimination or Segregation in Places of
Public Accommodation
(i) Equal access to any place of public accommodation regardless of race,
color, religion or national origin
(ii) Following are places of public accommodation if there operations
affect commerce:
(a) inn, hotel, motel
(b) facility that sells food for consumption on the premises
(c) motion picture house, theater, sports hall, etc.
(d) any establishment located within the premises of the above
establishments
(e) The above provisions do not apply to private establishments
6. Elements of Act
(i) Does the person fall within the protected class? (race, color, religion,
national origin)
(ii) Must be a place of public accommodation (inns, restaurants, motion
pictures, etc.); if it is a private establishment, it does not qualify under
the act
(iii) Person had to be discriminated against
 (iv)Place of public accommodation must be involved in commerce.
7. Dale v. Boy Scouts
(i) Is organization a “place”?
(a) Site v. association
(ii) What constitutes public accommodation?
(a) Broad public solicitation
1. Advertisements, publicity
(b) close relationship with government or other public accommodation
(c) chartered by Congress
1. US President is honorary president of BSA
(d) resembles other public accommodations
(iii) Is group an excepted group (distinctly private)?
(a) Membership numbers
(b) Use oath and law to show established criteria
(iv)Supreme Court decision
(a) “expressive association” – ability of a group to choose (exclude)
members based on beliefs – 1st Amendment right
(b) If BSA doesn’t believe in homosexuality, to admit a gay member
would go against beliefs
8. Americans with Disabilities Act of 1990, Title III: Public
Accommodations and Services Operated by Private Facilities
(i) prohibits discrimination on the basis of disability in both employment
and public accommodations
(a) physical or mental impairment that substantially limits major life
activity AND
(b) record of impairment OR
(c) regarded as being impaired
(ii) Some Courts found Internet to be a place of public accommodation,
Some haven’t
(iii) does not apply to private clubs or religious organizations
c. Free Speech Access
1. Lloyd Corp. v. Tanner:
(i) Marsh v. Alabama: town functions as a town even if privately owned –
right to access is greater than right to exclude for public property
(ii) Difference between Marsh and Lloyd: there was a place in Lloyd
(outside) to distribute on public property – this property is private
(iii) ¶ tries to argue that shopping center serves like a company town
center (a municipality) so that the rights would extend to the mall.
(iv)Rule: A privately held shopping center is not so dedicated to public
use as to allow private parties the right to exercise their First
Amendment rights on its premises.
(v) Dissent says that we should find for free speech when balancing free
speech and private property
2. New Jersey Coalition Against the War in the Middle East v. JMB Realty:
(i) Rule: The extent of free speech rights on private property depends on:
(a) (1) the nature of the use of the property
 (b) (2) the extent of the public invitation to use that property, and
(c) (3) the purpose of the speech activity in relation to the use of the
property.
(ii) Majority Rule: Citizens do not have the right to exercise their free
speech rights on private property without invitation. (New Jersey
Supreme Court stretches the law to argue that because malls open
themselves up to all people, including non-shoppers, and because
malls have become business districts of towns, malls should be forced
to extend the rights of free speech)
B. Right to Use
a. Landowner’s right to use his property as he sees fit vs. Neighbor’s right from
harm
1. Four basic ways to resolve land conflicts
(i) Δ’s privilege: freedom to act despite harm (damnum absuque injuria:
damage w/o legal redress)
(ii) ¶ security: ¶ has absolute right not to suffer a particular sort of harm
caused by Δ’s activity
(iii) Reasonableness test (represents middle position): Δ can engage in
harmful activity if it is deemed to be reasonable but not if the conduct
is deemed unreasonable
(iv)Prior use: grants a right to commit the harmful activity to the person
who first established the use
2. Four remedies adopted by the Courts
(i) No Remedial Action: ¶ has no legal right to challenge Δ’s use
(dismissal of complaint)
(ii) Damages for ¶
(iii) Injunction against Δ
(iv)Purchased injunction
b. Covenants & Equitable Servitudes (basically the same thing) – only
difference was that a covenant allowed for damages whereas equitable
servitudes allowed only for injunctive relief
1. Covenants
(i) writing – only has to be in writing once, from original grantor to
original grantee; subsequent purchasers are responsible for checking
deeds
(ii) notice – intended to protect owner of servient estate
(a) “actual” – saw it
(b) “inquiry” – visible signs of use and existence
(c) “constructive” – recorded in deed registry, should have known
(iii) intent to run with the land – will be deemed to show intent to bind
future possessors if it says:
(a) covenant is made to grantee and “their heirs and assigns”, or
(b) “it is intended to bind future owners” or “intended to run with the
land”
 (c) even without this language, courts generally hold that a covenant is
intended to run with the land so long as it touches and concerns the
land
(iv)privity of estate – not required for injunction (equity), only for
damages (covenant)
(a) Horizontal – regulates relationship between original covenanting
parties
1. Mutual privity – (landlord/tenants)
2. Instantaneous privity – (covenant created when selling
property)
3. No horizontal privity when:
a. Agreements b/w neighbors not part of simultaneous
conveyance-just because they live near each other, can’t
make covenant all-inclusive
b. Agreement b/w grantor and grantee made after the
conveyance; grantor no longer owns the property of the
grantee; can’t change it
(b) Vertical – regulates relationship between the original covenanting
parties and subsequent owners of each parcel
1. Present only when an owner sells land, not when she leases it
(v) touch and concern – meant to make sure that the covenant really has to
do with the land and will benefit current and future owners of
dominant estate
(a) Burden Side – obligation touches & concerns burdened estate only
if it is intended to benefit current and future owners of dominant
estate
(b) Benefit Side – obligation touches & concerns dominant estate if it
improves enjoyment of the land or increases market value
(c) Courts often use this requirement to regulate public policy;
sometimes they disfavor noncompetition agreements so they will
say that the covenant doesn’t “touch and concern” b/c the only
benefit to the dominant estate is economic; also use this
requirement to not enforce covenants held in gross because they
don’t “touch and concern” a dominant estate
2. Servitude
(i) non-possessory interest in land belonging to another - runs with the
land – passed from party to party - a legal device that creates a right or
an obligation that “runs with the land” or with an interest in land (it
passes from one landowner to the next)
(ii) Easements
(a) Easements created by Implication
1. Easements by estoppel (irrevocable licenses)
a. When a party relies on the easement to make improvements
to his property and he makes the improvements with the
knowledge of the landowner, the landowner is estopped
from barring access to his property. (Holbrook v. Taylor)
 2. Constructive Trust: a property arrangement in which an owner
transfers property to another person w/ instructions to manage
the property for the benefit of a third party; easement w/ a
fiduciary duty (Rase v. Castle Mountain Ranch)
3. Easements implied from prior use
a. 3 conditions:
i. common ownership of the property originally
ii. before severing original title, part of the united parcel
was used for the benefit of another part and such use
was obvious, continuous and permanent
iii. claimed easement is necessary and beneficial to then
enjoyment of parcel conveyed or retained by grantor
4. Easement by necessity: (Granite)
a. a common owner has to convey
i. a landlocked portion
ii. that can only be entered through conveyor’s land
(b) Easements created by Express agreements
1. Must be in writing and
2. Can’t reserve an easement in a third party
a. Burden of an easement runs with the land if it is
i. in writing
ii. the grantor intended it to run with the land, and
iii. later owners of the subservient estate had notice of the
easement when they purchased (actual, inquiry or
constructive notice)
3. If the benefit runs with the land, it is appurtenant; if it does not,
it is an easement in gross and belongs specifically to the
grantee and has nothing to do with his ownership of land (ex.
utility companies-Henley v. Cont. Cable) (test is to look to the
intent of grantor)
(c) Easements last forever unless terminated by:
1. agreement in writing (release of the easement by the holder)
2. by their own terms (ex. if deed says easement only lasts 10
years)
3. by merger (holder of servient estate becomes owner of
dominant estate)
4. by abandonment (if owner of easement showed an intent to
abandon estate)
5. by adverse possession
(iii) License – permission to enter for specific purpose
(a) License coupled with interest: owner selling property gives
permission for recovery
(b) Promissory License: owner lets person in – license can be revoked
and owner can be sued for breach of K (movie theater)
(c) Easement by Estoppel: owner gives permission and licensee
invests substantial amount in reliance of license
 (d) Constructive Trust: property arrangement created by law without
any agreement between parties
(iv)Doctrine of Implied Reciprocal Negative Servitudes – there were
problems w/ developer being able to covenant entire neighborhood b/c
when someone purchases home, no privity of estate b/w developer and
earlier purchasers
(a) solved by declarations (developer files it, placing buyers on
constructive notice)
(v) solved by common plan (all owners agree to be bound for the benefit
of all current and future owners)
(vi)grantor covenant – developer agrees to similarly restrict future lots
3. Modifying/Terminating covenants
(i) Changed Conditions – covenant may not be enforced if conditions in a
neighborhood have changed so drastically that the covenant is of no
substantial benefit to the dominant estate
(ii) Relative Hardship – covenant may not be enforced even though it
benefits the dominant estate if this benefit is grossly disproportionate
to the burden on the servient estate; damages, although small, may be
appropriate for the dominant estate
(iii) Changed conditions focuses on dom. estate while relative hardship
focuses on the servient estate
4. Other Equitable Defenses (that allow one to rely on another’s failure to
enforce a covenant)
(i) unclean hands – person violated the covenant themselves
(ii) acquiescence – tolerated previous violations of covenant by owner of
servient estate
(iii) abandonment – tolerated violations by owner of other restricted
parcels covered by the covenant
(iv)estoppel – owner of dominant estate tells owner of servient estate he
won’t enforce the covenant and owner of the servient estate relies on
that promise
(v) laches – covenant has been ignored or breached for a long time; court
may say it is unconscionable to enforce it
(vi)marketable title acts – like SoL’s that terminate restrictive covenants if
not re-recorded within certain time
(vii) other ways: language, merger, release, prescription
5. Shelley v. Kraemer: state action can’t be used to enforce covenants that
effectively deny equal protection of the 14th Amendment
6. Evans v. Abney: “cy pres doctrine” – equitable doctrine under which a
court reforms a written instrument, which would be unlawful if enforced
strictly to be “as near as” the drafter’s intent as possible without violating
the law; purpose is to carry out the general charitable intent
(i) however, can’t use this doctrine to alter the nature of the trust when the
deceased would rather have the whole trust fail than have it be
changed to an operable state
 (ii) state action not unconstitutional in this case because it deprived blacks
and whites of the park
c. Water Rights
1. Four Theories for Groundwater
(i) free use (majority): landowners have the freedom to extract as much
water as they can from their property, even if this means draining
water from underneath neighboring property, as long as they are not
wasting it
(ii) reasonable use: owner must accommodate the interests of neighboring
owners
(iii) correlative rights test: allows each owner to withdraw a specified
portion of the groundwater (provides much more certainty to the
reasonable use test)
(iv)prior appropriation: granting rights to the property owner that first
invested in withdrawing the water; allows you to continue to possess
groundwater after you have put money into it (labor and investment)
2. Surface Water: on top of ground (streams, rivers, etc)
(i) Reasonable Use – consider owners relative reasonable use, also
consider (a) relative social value of each user’s use (b) extent of harm
to other users (c) cost of preventing harm
(ii) Prior Appropriation – same as above but also rewards how owner can
use land in future
d. Nuisance
1. Water
(i) Factors to determine reasonable use regarding water damage
(a) Amount of harm caused
(b) Foreseeability of the harm that results
(c) Purpose or motive with which the possessor acted
(d) Interest of society as a whole v. damage to party that is suffering
(ii) Rules in determining Water Rights
(a) Common Enemy Doctrine: allows property owners the absolute
freedom to develop their property without liability for any
resulting any resulting damage to neighbors caused by an increased
runoff of surface water (damnum absque injuria)
(b) Natural flow rule (civil law): grants the injured property owner
absolute security against injury from flooding caused by a
neighboring property owner’s development
(c) Reasonable use rule: requires the decision maker to determine
based on circumstances
(d) Treat problem as a tort case, not a property case
(iii) Armstrong v. Francis Corp: A possessor of land is not privileged
to discharge upon adjoining land, by artificial means, large quantities
of surface water in a concentrated flow otherwise than through natural
drainways, regardless of the means by which the surface water is
collected and discharged.
2. Support Easements
(i) Lateral Support: support is lateral when the supported and supporting
lands are divided by a vertical plane
(a) Noone: An adjacent landowner is liable only for supplying lateral
support to his neighbor’s land in its natural state. (automatically
guilty on strict liability if he fails)
(b) Rule: When an adjacent landowner provides sufficient support to
sustain the weight of the land in its natural state, but the land slips
as a result of additional weight from a building or other structure,
in the absence of negligence by the adjoining landowner, there is
no cause of action against the adjoining landowner for damage to
the land, the building or any other structure.
(c) The duty is absolute as to land in its natural state, but to recover for
lateral support for a building, negligence must be shown.
(d) To determine negligence, factors to consider are:
1. Type of withdrawal of support
2. Nature of the soil
3. Whether there was notice of proposed withdrawal of support.
(e) Negligence exists if landowner (1.) fails to dig in a reasonable
manner or (2.) fails to warn the neighbor about excavation.
(ii) Subjacent Support: right of land to be supported by the land which lies
under it
(a) Friendswood Development: Landowners who withdraw ground
waters are liable for damages to his neighbor’s land only to the
extent that his activity was negligent, wasteful or malicious.
3. Private Nuisance: a nontrespassory invasion of another’s interest in the
private use and enjoyment of their land
(i) Radiation (Page County Appliance Center) Lawful activity constitutes
nuisance if it unreasonably interferes with another’s enjoyment of his
or her property.
(ii) Exceptions
(a) Hypersensitive use test: the person complaining of the nuisance is
only affected by the nuisance because of a hypersensitive act on
his own land
(b) Previous use of land: the person accused of nuisance committed
the act first
(iii) Remedies for nuisance
(a) Injunctive relief
(b) Damages
(iv)Factors to see if harm is unreasonable
(a) Rights or fairness
(b) Social Utility or welfare
(v) Considerations for fairness
(a) Character of harm
(b) Distributive considerations
(c) Fault
 (vi)Considerations for Social Welfare
(a) Costs and benefits
(b) Incentives for public
(c) Lowest Cost Avoider
(vii) Considerations for Rights
(a) Right to security v. freedom of action
(b) Morality Fault v. Compensation
(c) Foreseeability
(d) Reasonable Reliance
(e) Equality of Rights
(viii) Considerations for Social Utility
(a) General Welfare
(b) Social Wealth
(c) ¶’s right to secure investment v. Δ’s right to competition
(ix)Three viewpoints courts take in judging nuisance law
(a) Right to absolute security from harm
(b) Right to absolute use of property to the exclusion of other
competing uses
(c) Reasonable, contextual approach (majority)
1. Restatement §826 “unreasonable”: when the gravity of the
harm outweighs the utility of the actor’s conduct
a. Normalcy test: what courts use to determine reasonableness
standard in a particular locality
b. Gravity of harm is evaluated by
i. the extent and
ii. character of the harm involved
iii. the “social value that the law attaches to the type of use
or enjoyment invaded,
iv. the suitability of the particular use or enjoyment
invaded to the character of the locality and
v. the burden on the person harmed of avoiding the harm
c. Utility of conduct is evaluated by
i. social value that law attaches to the primary purpose of
the conduct
ii. the suitability of the conduct to the character of the
locality
iii. the impracticability of preventing or avoiding the
invasion
4. Rights in the Air
(i) Prah: (Majority rule) Owners have absolute rights to develop their
property without liability for any interference with their neighbor’s
interests in light and air. (landowner owns up to the sky and down to
the earth)
(a) Exceptions
 1. spite fences: structure erected for the sole purpose of
maliciously harming the neighbor by interfering with access to
sun, ocean view, etc.
2. Doctrine of ancient lights (English rule; most jurisdictions
don’t use it): if a landowner had received sunlight across
adjoining property for a specified period of time, the landowner
was entitled to continue to receive unobstructed access to
sunlight across the adjoining property (prior appropriation)
3. Unusually sensitive use (hypersensitive use): a landowner
cannot, by devoting his own land to an unusually sensitive use,
make a nuisance out of conduct of the adjoining landowner
which would otherwise be harmless
5. Public Nuisance: an unreasonable interference with a right common to the
general public (ex. obstruction of public highways)
(i) Traditionally, only a public official could bring an action to enjoin a
public nuisance; now, any member of the public affected by the
activity can bring a lawsuit. Public goals are huge consideration:
public health, morals, peace, comfort, safety, etc.
C. Right to Transfer

IV. Who can become a property owner?

A. Estates
a. Fee Simple Absolute
1. No future interest
2. Owner has all sticks in bundle
3. Relevant language of intent
(i) “to A”
(ii) “and her heirs”
(a) Still just FSA, doesn’t give A’s heirs any rights p.506
4. Cannot have complete restraint on alienation
(i) “O to A” unless tries to sell
(ii) Court will interpret as “O to A”
b. Defeasible Fees
1. Present interest that terminates at the happening of a specified event other
than the death of the grantor
(i) “O to A as long as land is used as a farm”
(ii) “O to A but if not used as a farm, O may re-enter and take”
(iii) “O to A so long as used as residential, if not, then to O”
2. 2 distinctions
(i) Is future interest in grantor or 3rd party?
(ii) Does future interest become possessory automatically or only if future
interest holder chooses to assert right?
3. Future Interest in Grantor
(i) Automatic Transfer
(a) interest reverts to grantor on happening of event
(b) Ex: O to A as long as used for residential purposes
 1. A: fee simple determinable – present interest
2. O: possibility of reverter – future interest
(ii) Language: so long as, while, during, until, unless
4. Transfer upon Grantor assertion of property rights
(i) EX: O to A but if not used for residential purposes, O may re-enter and
take premises
(a) A: fee simple subject to condition subsequent – present interest
(b) O: right of entry – future interest
(ii) Language: provided that, on the condition, but if
c. Future Interest In 3rd Party
1. Same as fee simple determinable, except interest shifts to 3rd party instead
of grantor
2. EX: O to A so long as used for residential purposes, then to B
(i) A: fee simple subject to executory limitation – present interest
(ii) B: executory interest – future interest
3. Language: until, unless, then to, but if…then to
d. Life Estate
1. Definitions
(i) Present ownership rights held during the life of an individual
2. Examples
(i) O to A for life
(a) “A”: life estate – present interest
(b) “O”: reversion – future estate
(ii) O to A for like, then to B
(a) “A”: life estate – present interest
(b) “B”: remainder – future interest
3. Remainder
(i) Definition
(a) the future interest that exists in a life estate held by someone other
than grantor
(ii) Two types
(a) Vested remainder
1. All remainders that aren’t contingent remainders
2. To persons identifiable at time of original conveyance for
whom there are no conditions precedent
3. Three types
a. Absolutely vested
i. not subject to change
ii. O to A then to children of B
iii. If B has 3 kids and is dead, this is absolutely vested bc
he cant have more kids
b. Vested remainder subject to open
i. may be divided among persons that are born in the
future
ii. O to A for life, then to B’s children
 iii. If B already has children, but is alive, she could still
have more
c. Vested remainder subject to divestment
i. may be destroyed by an event that occurs after original
conveyance
ii. O to A for life, then to B, but if B has flunked out of
law school, then revert back to O
d. Contingent remainder
i. Take effect only upon the happening of an even that is
not certain to happen, or
ii. Will go to a person who cannot be ascertained at the
time of the initial conveyance
iii. Example 1: O to A for life, then to B if B has graduated
from law school
iv. Event is conditional and not definite
v. A: life estate
vi. B: contingent remainder
vii. What if A dies and B hasn’t gone to law school?
viii. estate goes back to O as fee simple subject to
executory limitation
ix. if B graduates from law school, estate springs to B as
executory interest
x. Example 2: O to A for life then to children of B
xi. A: life estate
xii. B: contingent remainder if B has no children at time of
conveyance
(b) Multiple levels of future interests in same conveyance
1. O to A for Life, then to B for life, then to C and his heirs
a. A: present interest – life estate
b. B: vested remainder in life estate - future
c. C: vested remainder in fee simple – future
e. RULE AGAINST PERPETUITIES
1. Summary
(i) An interest in property is good if it necessarily vests in interest to a
known person or entity within the allowable period.
(ii) A conditional interest in property is good if the condition must either
necessarily happen or not happen within the allowable period
(iii) If an interest does not meet the foregoing requirements, it is void
(iv)The allowable period consists of a life in being at the time that the
interests are created plus 21 years
2. When does the RAP apply?
(i) The estate is being transferred to a grantee (remainder or executory
interest)
(a) If future interest is in grantor, RAP does not apply
(ii) The grant is either contingent (given to unascertained taker or subject
to a condition precedent) or subject to open
 (iii) The grant might still exist and still be contingent 21 years after the
death of the last person alive at the time of conveyance
3. DOES NOT APPLY
(i) Possibility of Reverter
(ii) Right of Re-entry
(iii) Reversion
(iv)Vested Remainder
(v) Vested Remainder Subject to Divestment
4. DOES APPLY
(i) Executory interest
(ii) Contingent remainder
(iii) Vested Remainder Subject to Open
5. If RAP applies, ask 2 questions:
(i) What even will cause it to vest?
(ii) Is there any way this can exceed perpetuity period?
(a) The question is not whether the interest ACTUALLY vests within
perpetuity period, but whether at the time the interest was created
there was a POSSIBILITY that it would vest outside perpetuity
period
6. Danger Sign
(i) Doesn’t appear to be anyone the condition relates to
(ii) Identified time period of more than 21 years
(iii) Identified event that would normally happen within time period but
might not
7. Ways to fix
(i) Strike out violating part
(a) O to A for residential period, then to B
(ii) Wait and See
(a) wait until the perpetuities period has passed and the court is certain
that the future interest has not vested within that period
(iii) Cy Pres Doctrine
(a) Change some detail to make the future interest valid
1. Example: change age required from 30 to 21 years
B. Concurrent Owners
a. Joint Tenancy
1. Enjoyment rights
(i) Each tenant has right to possess entire parcel of land
(ii) Duty to pay rent in case of ouster
(iii) Right to pay 3rd party renumeration paid jointly
(iv)Maintenance of joint property
(v) Right of survivorship
(a) severance – selling to another party JT is severed, TinC is created
(vi)Formalities of creation
(a) unity of time, title, interest, and possession
(vii) Partition
(a) file for division of property
 b. Tenancy-In-Common
1. Enjoyment rights
(i) Each tenant has right to possess entire parcel of land
(ii) Duty to pay rent in case of ouster
(iii) Right to pay 3rd party renumeration paid jointly
(iv)Maintenance of joint property
c. Tenancy By Entirety
1. Available only to married couples
(i) Legal marriage
(ii) No partition except divorce
(iii) Consent to encumbrance
(iv)No attachment of property to satisfy debts
d. Olivas v. Olivas
1. generally, no tenant in common can exclude the other
2. Ouster: denial of right of cotenants to occupy premises jointly or the
character of the property is such that joint occupancy is impossible or
impractical
(i) Actual: affirmative physical act of ouster (denial)
(ii) Constructive: joint occupancy is impractical or impossible (character)
(iii) one who left has the burden of showing that they were
constructively ousted, and thus they are owed
(a) “he wasn’t pushed out, he was pulled out”
e. Carr v. Deking
1. Cotenant may lease his interest even without the approval of the other, and
lessee becomes tenant-in-common for the duration of the lease
2. Angry cotenant’s resolution is partition (the physical sale of the property
itself)
3. Each cotenant has full and equal right to the property
f. Tenhet v. Boswell: Joint tenant leased interest to 3rd party and died during the
term of the lease, Other joint tenant sued to obtain interest in survivorship as
joint tenant, Will lease terminate joint tenancy or will lease die with lessor?
1. EITHER Lessor gives interest to lessee and holds onto merely a reversion
option OR Lease terminates upon death of lessor
2. Majority decision (Md.) actually severs joint tenancy because the inherent
nature of JT is equal possession and a lease creates unequal possession

T/C: A = B JT: A = B

A’s heirs B’s heirs Survivor

Survivor’s heirs

C. Landlord/Tenant
a. Types of Tenancies
1. Residential
 2. Commercial
b. Types of Interests
1. Term of Years: determinable period (week, year, etc.); automatically
terminates at the end of the specified period; future interest of landlord is
called a reversion; inheritable and alienable; if landlord sells reversion, the
new owner takes the property subject to the lease and has no power to
terminate the lease unless the lease agreement provides otherwise;
survives the death of either party b/c the interests are for a fixed period of
time; Statute of Fraud usually requires those for longer than 1 year to be in
writing
2. Periodic Tenancy: indeterminate, but characterized by periodic rent
payments; for a period that is renewed automatically unless either party
terminates the agreement; inheritable and alienable; notice is required
before either party can end the tenancy (usually a month); death of either
party doesn’t terminate the tenancy
3. Tenancy at will: similar to periodic tenancy, except that it requires no
notice by either party; generally, the death of the landlord or tenant
terminates tenancy; landlord still has to give the statutorily required notice
to evict, but may have an absolute right to do so since tenancy is at an end;
tenancy may have a defense to eviction, allowing him to remain until the
end of the month
4. Tenancy at sufferance: where a tenant is rightfully in possession and
wrongfully stays after the leasehold has terminated; also called a holdover
tenant; different from trespasser b/c generally requires some type of court
judgment, not just “get out”
c. Landlord rights
1. Right to receive rent
2. Right to impact premises upon reversion
3. Right to have property back
d. Landlord’s remedies
1. When tenant breaches
(i) Sue for back rent
(ii) Possession of land
(a) Actual Eviction – physically barring tennant from property
(b) Constructive Eviction – landlord substantially interferes with
tenant’s quiet enjoyment of prop.
1. Traditional Rule – can only raise Constructive eviction defense
when you have moved out w/in reasonable time
2. Partial Constructive Eviction – landlord’s actions have
substantially deprived tenant of the
use and enjoyment of a portion of the property; this defense
may allow tenant to continueliving in the remaining part of the
premises
3. Restatement – differs from both:
a. lessens the substantiality requirement (“more than
insignificant” vs “substantial”),
 b. landlord is liable for the acts of 3rd parties where the
landlord could legally control their actions, and
c. eliminates the requirement that tenant abandon the property
e. Duty of Landlord
1. Duty to deliver premises to tenant
(i) Majority: failure to deliver constitutes breach of lease
(a) tenant option 1: terminate lease, recover damages
(b) tenant option 2: withhold rent for amount of time spent waiting for
possession and recover damages for cost of seeking other housing
(ii) Minority: landlord has duty to only deliver right to possession, not
actual possession
(a) tenant’s responsibility to evict holdover tenant
(b) tenant is responsible for paying rent regardless
f. Tenants Rights
1. Right of assignment
(i) Convey all tenants remaining interest without retaining future interest
in property
(ii) Assignee takes on all responsibilities of the tenant
2. Right of sub-lease
(i) Tenants retains some control to enter property
(ii) Sub-tenant owes no responsibilities to the landlord
(a) Majority: if a lease contains an approval clause (stating lease
cannot be assigned without consent of lessor) lessor can arbitrarily
refuse to approve a proposed assignee
(b) Minority: lessor can withhold consent only if he has a
commercially reasonable objection
(c) Commercial lease – withholding consent must be reasonable
1. Tests for commercially reasonable:
a. Financial responsibility of proposed assignee
b. Suitability of the use of the property
c. Legality of proposed use
d. Need for alteration of the premises
e. Nature of the occupancy
(d) Residential lease – can be for any reason
3. Common law rights
(i) Right of quiet enjoyment
(a) Minjak Co. v. Randolph: necessary for a tenant to move from the
premises in order for constructive eviction to take hold? No. –
intent is not required, if conditions stem from actions by the
landlord as actual, probable consequences of his actions
(ii) Implied warranty of habitability
(a) Javins v. First Nat’l Realty Corp.: warranty is implied in contract
to provide housing
g. Problems w/ MS Landlord-Tenant Act of 1991
1. Security deposit is weak b/c landlord can keep it
2. Self-help eviction (not good)
 3. Habitability provisions:
(i) only has to comply with codes;
(ii) only has to be same at end of lease as beginning of lease;
(iii) good faith provision regarding retaliatory eviction protection for
tenants
(a) no codes in lots of places; also, can rent it in bad shape and don’t
have to fix it

V. How are property rights limited by the state?

A. Zoning
a. Zoning Enabling Statutes – regulate the type and level of use in different
districts; arose as public nuisance laws to combat prostitution and drinking
1. These statutes generally have a 3 part structure:
(i) planning commission creates a comprehensive plan (divides
residential, business, or mixed use, etc.);
(ii) plan is approved by relevant municipal authority (city council, county
supervisors);
(iii) zoning board of adjustment (need variance)
b. 3 types of zoning laws:
1. area or lot regulations;
2. building or bulk regulations;
3. use (cities)
c. Town of Belleville v. Parillo’s – an existing nonconforming use will be
permitted to continue only if it is a continuance of substantially the same kind
of use as that to which the premises were devoted at the time of passage of the
zoning ordinance (changes must be negligible)
d. Commons v. Westwood Zoning Bd. – Undue hardship: underlying notion that
no effective use can be made of the property if variance is denied; strict test:
no variance if hardship is self-imposed, will examine efforts made by
homeowners to comply with regs., no hardship unless there is no
economically viable use of the property if the zoning law is enforced
e. Stone v. City of Wilton –
1. Practical Difficulty Test – vested rights – an owner who begins
construction in good faith reliance on a particular zoning regulation will
be protected from retroactive changes in the zoning law if the owner’s
efforts and expenditures were so substantial as to create vested rights in
the completion of the project; no vested rights in this case b/c not enough
acts to claim ownership
B. Takings - 5th Amendment (Due Process)
a. 3 elements
1. a taking
2. for public use
3. without just compensation
b. The Government may take property only for a “public use”, meaning that it
must further a legitimate public purpose (if not for pub. purpose, may be
enjoined; if so, requires compensation)
 1. Kelo v. New London: ¶ house taken and given to another private owner in
execution of a public use plan to rejuvenate a town
2. Public use redefined as use, enjoyment by large amount of the general
public
3. Some states have restricted eminent domain by using increased tax
revenue, promotion of economic development, use by private entity, and
as a pretext for public use
4. Taking, for a public use, and fair compensation (fair mkt. value used
except when fair mkt. value is hard to find, then use alternative test that
usually exceeds fair mkt. value)
c. Factors in a Takings Analysis:
1. economic impact of the regulation on the claimant;
2. extent to which the regulation has interfered with distinct investment
backed expectations;
3. character of the governmental action
(i) if the state is only regulating use in a manner consistent with their
police power, no compensation required
d. Per Se Takings
1. Government mandated permanent invasions of property: imminent domain
2. Regulations that deprive the owner of all economically viable uses of
property
3. 3 types of per se takings:
(i) permanent physical invasions (Loretto)
(ii) extinguishing core property right (Babbit)
(iii) denial of economically viable use (Lucas)
e. Pruneyard – ¶ claims state constitution allowing free speech at mall
constitutes a taking; claims right to exclude; court says no b/c it doesn’t really
have big economic impact
1. policy – does the restriction “force some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as
a whole?”
f. Yee v. City of Escondido – mobile home park owners claim rent regulations
amount to a taking; court says no because they can still use the land for other
things;
1. regulatory takings – government only regulates use of property;
compensation required only if regulation unfairly makes private citizens
bear public burden
g. Loretto – “permanent” forced physical invasion is taking per se, no matter
how minimal the effect; required just compensation; said it was different from
Pruneyard, where taking was temporary
h. Aetna – said forcing the marina developers to make their club public would be
a taking because the owners had invested w/ the expectation that they would
continue to be able to control access; the property included navigable waters
only because of the owner’s investment; dif. from Pruneyard b/c it was a
private club, not a business open to the public
i. Ad hoc takings
 1. Compensation for economic injuries from the government determined
based on fairness and justice
(i) character of government actions
(ii) protection of reasonable investment-backed expectations
(iii) economic impact of the regulation on the owner
2. special category
(i) deprivation of core property rights
(ii) retroactive deprivation of vested rights
(iii) inconsistent
3. Penn Central v. NYC: zoning laws passed according to health, safety, etc,
even if they prohibit uses of land, are permissible
(i) Discriminatory spot zoning is prohibited
4. Pruneyard v. Robins: free speech
j. Methods of analysis
1. Traditional
(i) Type of activity that constitutes a nuisance
(ii) Strands of rights that constitute core property rights
2. Efficiency
(i) The harm to uncompensated victims resulting from taking
(ii) Settlement or administrative costs of arranging for compensation for
those victims
(iii) Demoralization costs that would accrue if the victims were not
compensated and believed that the lack of compensation was unfair
3. Distributive
(i) Burden of public good borne by individual
k. Total Takings
1. Lucas v. SC Coastal Council: ¶ bought $975,000 lot on the beach, and SC
legislature enacted the Beachfront Management Act which barred ¶ from
erecting any permanent structure on the lot
(i) Example of denial of all economically viable uses of the land
(ii) Shows that different types of property can have emphasis on different
rights
(iii) Regulation that takes all economically viable use (Total taking)
must be compensated unless the regulation regulates previously
prohibited behavior
(a) Look to state CL principles of property and nuisance to tell what is
previously prohibited
(iv)Concurring Opinion (Kennedy): law must be passed with
determination that it is in accord with owner’s reasonable expectations
and sufficient to support severe restrictions on property
(v) Dissenting Opinion (Blackmun): not taking because there are other
economic uses
(vi)Dissenting Opinion (Stevens): rule doesn’t allow for evolving tradition
of common law principles in nuisance
VI. Underkuffler
A. Theoretical
a. In order for a claim of property to have meaning, you must consider the theory
of the particular rights that is being used to justify any particular conception of
property
b. The theory can be directed to the origins of a particular property right or it can
be directed the use of one of the primary rights of ownership
c. How can you get a claim of ownership?
d. Once you have it, what can you do with it?
B. Spatial
a. In order to understand the property right at issue, you must consider the
space, area or field to which the theoretical dimension must be applied
C. Stringency
a. In order to understand the property right at issue, you must decide how much
protection to afford a property right. Some rights of property (ie: the rights to
possess, exclude, etc.) have more power than other rights to property
D. Time
a. In order to understand the property right at issue, you must decide at what
moment or point in time is the content of the other dimensions determined