1.

Ownership and acquisition

a. Right to possess
b. Capture
i. Res nullius
1. Nobody’s thing
2. First in time/first in capture
3. Personal property
4. Application
a. Wild animals
i. Actual capture (trap) or mortally wounding
1. Pierson v. Post
ii. The animal is considered to be captured if custom
considers it so
1. Ghen v. Rich
a. Whaling
iii. Sight or intent is not sufficient
iv. Complications:
1. Malicious interference with professional
capture of wild animals is prohibited
a. Keeble v. Hickeringill
i. Duck pond
ii. Fugitive resources
1. Oil
a. Constructive possession
b. Oil can escape when neighbor drills
c. Regulation
i. Tragedy of the commons
ii. Pooling
iii. Minimum acreage
2. Water
a. Land based
i. Riparian right: owner of bank has right to
undiminished, unaltered flow
ii. Community right: passage through
community/settlement
1. pueblo
iii. Beneficial, does not unduly interfere with
competing rights of other riparian owners
b. Use based
i. Prior appropriation: first in time, first in right
ii. Not land based—also diverted to other locations
 iii. “Beneficial” use
iv. Can be sold
v. Nowadays: water permit, must be exercised
c. Federal rights superimpose
i. Reservations, military, national parks
d. Underground water
i. Like oil
ii. Must not be malicious, wasteful
iii. CA: correlative theory: equal right of use, no right
to deplete neighbor’s water supply
iii. Conversion
1. Dominion and control
a. D takes from P
i. First possession
ii. P superior title
iv. Location of property capture
1. Private property
a. Ratione soli: landowner has constructive possession of
items on his/her land
b. Knowledge, Control or Intent are irrelevant
i. Trespassing is illegal
1. Poaching
c. Permission to enter:
i. can you capture? scope of permission
2. Find
a. Nature of conversion
i. Dominion and control
ii. Personal property
iii. Did plaintiff own or possess the disputed item before the defendant
exercises dominion & control?
b. What kind of property
i. Abandoned
1. First in time
a. Armory
i. Chimney sweep
ii. Mislaid
1. Circumstantial evidence determines intention which determines if
it is lost or merely mislaid
2. Lost
a. Finders keepers
3. Mislaid
 a. Owner of location (for safekeeping) until abandoned
i. McAvoy
1. Lost wallet
ii. Linder aviation
1. Plane w/ cash in wings
iii. Treasure Trove
1. Finders keepers (old rule)
2. Owner of location (new & majority rule)
a. Colombus Amer
c. Bailment
i. Mutual benefit
1. Ordinary diligence
2. Ex Car valet, watch repair
ii. Sole benefit of bailor
1. Gross negligence
2. Ex “Look after my bag for a second”
iii. Sole benefit of bailee
1. Extraordinary care
2. Ex Borrowing class notes, loaning a book to a patron
iv. Involuntary bailment
1. Slight care
2. Ex Accidentally receiving someone else’s stock certificate in the
mail
3. invention/creation
a. Copyright
i. Subject matter
1. personal expression
2. modicum of originality
3. Independent creation
4. Created, not discovered or mere labor
5. Exception
a. Facts
i. Feist
1. Phonebook
ii. Except hot news items
1. AP v INS
a. Substantial investments
b. Time sensitive information
c. Free riding
d. Direct competition
e. Depletes incentive to invest
 b. Functional aspects
i. Baker
1. Accounting book
ii. Scope of protection
1. Right to exclude
a. Copying, distribution, performance, derivative works
2. Exceptions
a. No infringement if Similar works are independently created
b. Other policy considerations
i. free speech, commentary, parody, no harm (fair use)
b. Patent
i. Useful inventions that can be applied
ii. Conditional upon acceptance by PTO
iii. Requirements
1. Within subject-matter
2. Novel
3. Utility
4. Non-obvious (comparison to prior art by “PHOSITA”)
a. In re demback
i. Jack o lanterns trash bags
iv. First to file system
v. Excludes independent inventors that are later
vi. Product & Process patents
vii. Costs of patents
1. Fragmentation of rights
2. Anticommons
a. potential patent minefield
3. slow research in areas with high notice costs
c. Trademark
i. Name, symbol, color, etc.
1. Qualitex co
a. Green-gold laundry equipment
2. used in commerce
3. source identifier
4. Not if pertains to functional component
ii. Secondary meaning required
1. if not inherently distinctive
iii. Subject to adverse possession by the public
1. When used in generic terms
a. Ex band aid
2. Not sufficiently enforced
 iv. Scope of protection
1. Exclusion
a. Close, similar marks
i. potential confusion among the public
ii. Strong to weak marks: fanciful, arbitrary,
suggestive, descriptive
2. Potential confusion
a. Fact intensive
i. proximity of the goods, similarity (sounds, color,
pronunciation), sophistication of the customer, etc.
d. Publicity
i. Likeness—distinctive
ii. Celebrity
iii. Commercial context
1. Deliberate imitation
2. To create sense of endorsement
e. Trade secret
i. must keep secret
1. Tort-like protection against unlawful appropriation
ii. can last forever
iii. risk of independent invention and reverse engineering
1. Cheddar bay biscuits/KFC chicken
4. Adverse possession
a. OCEAN-H
i. Open & Notorious
1. Not hidden
a. drive-by standard
b. If you need a survey its not notorious
2. Issues
a. underground, boundary encroachments
i. Illinois cave
ii. Actual & Continuous
1. “Normal” use of average owner on similar land
2. AP has good faith reliance on written document that he owns
3. Tacking of time of previous owners: privity of estate
iii. Exclusive
1. “Normal” exclusion of average owner
iv. Hostile
1. Intent does not matter for determining hostility
a. as long as there is no permission.
2. Other states
 a. Good faith
i. AP thinks she owns
b. Bad faith
i. AP knows she doesn’t own
b. Tacking
i. Tacking by Adverse Possessors
1. Voluntary transfer of estate of land to other AP
a. Not if abandoned by the AP
b. Unlawful ouster by other AP
i. does not stop
ii. tolls the statute period
ii. Tacking against Owners
1. Voluntary transfer of estate of land to subsequent owner
2. Owner interrupts the AP occupation
a. prescription period is stopped, AP has to restart period
c. Chattel
i. Can not get title via theft
1. Protect good faith purchasers of stolen goods
ii. California
1. Discovery rule jurisdiction
a. Statute of limitations starts to run after realizing theft
occurred
i. Discovery must be within reason
b. Burden on true owner
i. Put the word out that something was stolen
1. O’Keeffe case
iii. Demand and refusal states
1. Statute of limitations only runs if owner demands item back and
thief refuses to return it.
5. Gifts
a. Requirements
i. Intent
1. Irrevocable
a. Except death bed gifts if giver recovers
i. “Causa mortis”
ii. Delivery
1. Physical
a. Give actual item
2. Constructive
a. Give something that makes use possible
i. Ex: keys
 3. Symbolic
a. Representation of item
i. Ex: toy car
ii. Only ok if other forms not available
iii. Deed required for real property
iii. Acceptance
1. Assumed if valuable
6. Right to exclude
a. Ad coelum doctrine
i. Own from the core of the earth to the edge of the atmosphere
ii. Limitations
1. Navigable air
a. airports
b. Griggs case
2. Control
a. Caves
b. Edward v sims
3. Fugitive resources
b. Public accommodations
i. Civil rights
1. ADA
2. Stop segregation
3. State laws go further
a. Gender
c. Quasi public spaces
i. Card counting in casinos
ii. Malls v free speech
d. Public trust
i. Right to gain access to water and wet sand through dry sand
1. Private property can not restrict access to water
a. Raleigh ave beach v atlantis
b. Nikki beach
e. Necessity
i. Trespass ok if done to prevent harm
1. Girl running from dog in torts
7. Estates
a. Freehold
i. Life estate
1. Possession for life then revert to owner
ii. Fee tail
1. Does Not exist anymore
 a. Medieval castles
i. “To arthur my 1st born son and his heirs”
iii. Fee simple
1. Absolute
a. Get all rights no matter what
2. Defeasible
a. Determinable
i. Interest ends automatically if conditions met
ii. Look for “so long as” “during” “until”
iii. Reverts to giver
1. Receiver instantly becomes adverse
possessor
b. Subject to condition subsequent
i. Like defeasible but no automatic reversion
ii. Look for “provided that” “a right to reentry if”
c. Subject to executory interest
i. Like determinable but goes to 3rd party
ii. Subject to law of perpetuities
1. Void if interest can vest to anyone after
everyone involved has been dead for 21
years
a. Can change with tech
i. Sperm donations
b. Leasehold
i. See landlord-tenant law
8. Concurrent property
a. Tenancy in Common
i. Default
ii. Undivided share of whole
1. Ouster
a. Refuse tenant equal occupancy
2. Transferable
3. Debtors can only get your percent
4. Lease ok
a. Share possession
b. Share income with co tenants
5. Expenditures
a. Everyone has to pay for the broken water heater
i. Can lose interest if you don't
b. Joint tenancy
i. Right of survivorship
 1. If 1 dies joint tenant gets rights not heirs
a. Avoids probate
c. Tenancy by entirety
i. Marital property for SP states
d. Marital property
i. Separate property
1. Titles held by 1 spouse
a. Can’t be taken in divorce
b. In death must be in will
ii. Community property (CA)
1. Assumed owned by both
a. Ex: house, business, cars, debts
i. Includes value accrued on businesses
b. Unless
i. Before marriage
ii. gift/inheritance
iii. Obtained in SP state
iv. Conveyance from one spouse to another
v. Education
c. Upon divorce
i. Keep sp divide cp
d. Upon death
i. Inherit CP unless will exists
ii. SP even split between spouse and heirs
iii. Prenuptial agreements
1. Who gets what in divorce
2. Clarify responsibilities
3. Provide for kids from other marriages
4. Protect from debts
5. Limitations
a. Voluntary
i. Independent counsel
ii. 7 day wait
iii. No coercion
b. Unconscionable
i. Unduly favors one party
c. Disclosure
i. Financial obligations
ii. Property
d. Public policy
i. Restrictions on autonomy
9. Landlord-Tenant law
a. Contract
i. not property
ii. Kinds
1. Term of years
a. Fixed period
b. Ends automatically
c. Transferable/inheritable
2. Periodic
a. Unknown duration
i. Ex: month to month
b. Rent increase = new agreement w/ notice
c. Termination
i. Notice equal to period required
1. Unless otherwise agreed
2. Min 6 month for year to year or more
d. transferable/inheritance
3. At will
a. No fixed duration
b. Can be terminated by either party
c. License with full control
d. Reasonable demand to quit needed to terminate
4. Tenancy at sufferance
a. Lease expired but tenant still staying
i. Let LL recover rent
ii. Ends when new tenant/new agreement/eviction
b. Landlord responsibility/rights
i. Security deposit
1. In escrow account
a. Should give interest to tenant
2. 1-2 months rent
3. Keep if
a. Failed to pay rent
b. Damage beyond wear and tear
ii. Tenant selection
1. Can practice discrimination
a. Not advertise
b. Unless against protected class
i. Roommate exception
iii. Duties
1. Provide possession
 2. Provide quiet use and enjoyment
a. Constructive eviction
i. Ex: loud neighbor won't let you sleep and LL owns
both units
3. Implied warranty of habitability
a. Health and safety
b. Bare living requirements
4. Mitigate damage
a. If tenant moves out
i. Sommer v Kridel
5. Loss by nature repair
c. Tenant responsibility/rights
i. Sublease
1. Agreement with another tenant < original agreement
2. Can be taken in lease agreement
ii. Duties
1. Pay rent
2. Keep in good repair
a. Routine repairs
i. Not wear and tear
b. Can't commit waste
3. Can't move fixtures
iii. Retaliation
1. Rent raising
2. End lease
3. harassment
10. Nuisance
a. “Pig in the parlor not in the barn”
b. Use interference
i. Tests
1. Jost
a. What would a reasonable person expect from land
i. Ex prior use, location, degree of harm, etc
2. Restatement
a. Gravity of harm > utility of conduct
c. Remedies
i. Injunction
ii. Damages
11. Easements
a. Types
i. In gross
 1. burdened/servient land
2. personal benefit
3. no dominant land
ii. Appurtenant
1. burdened/servient land
2. dominant land
iii. Profits
1. right to take natural resources from the land of another
b. Creation
i. Prescription
1. Open & notorious, peaceably, adverse (hostile), continuous for
prescription period
a. OCAN-H

ii. Estoppel
1. Owner stood by & acquiesced in the change of use and permitted
the expense to be made
iii. Implied
1. Single parcel in common – severed into two separate owned
parcels
2. Before severance: prior quasi-easement => prior use on part of the
land
3. After severance: must be reasonably necessary continued for
benefit of new owner of severed parcel
iv. Necessity
1. Single parcel in common – severed into two separate owned
parcels
2. Easement strictly necessary due to the severance (typically ingress,
egress)
3. Does not have to be a prior use
v. Express Creation
1. By deed or will (statute of fraud)
2. Reservation in grantor
a. Example: O coveys P1 land parcel to A, reserving right of
way in it.
3. Creation in stranger to the deed
a. Example: O was two parcels. Sells P1 to A. Sells P2 to B
with easement in the deed: “reserved in favor of A and her
successors to P1”.
b. Was not possible in CL
c. Modern rule: allowed: enforceable by A even though A
was not part of the B and O deed.
12. Covenants
a. Vertical privity
 i. There is a succession of estate from promisor (or promissee) to the
promisor’s (or promissee’s) assignee
ii. Burden
1. promise is part of land transaction
iii. Benifit
1. succession in some interest of land
b. Horizontal privity
i. Original parties (promisor and promisee) to the covenant engaged in a
land transfer.
ii. Burden
1. Fee Simple Absolute
c. Notice
i. Burden
1. actual or constructive
13. Zoning
a. Types
i. Area and Lot Zoning
1. Size and shape of lots: ex.
a. Minimum size
b. Minimum frontage
ii. Building & Bulk regulations
1. placement, height, shape and bulk of building
a. Set-back requirements, height restrictions, floor-area ratio,
percentage of coverage of lot, minimum floor size
iii. Use regulation
1. Residential, Commercial, Agricultural and Industrial
a. “Cumulative” and “non-cumulative”
i. Euclid
1. Like factorials 3!
b. Grandfathering
i. May continue (even under a new owner since it follows the status of the
land)
1. For normal period, cannot renovate or upgrade beyond normal life
span
ii. Must be continuous
1. Cannot change use and resume later on
iii. Cannot be expanded
1. Expansion of store is not allowed
14. Takings
a. Eminent Domain (Government forces sale)
i. Public Use
1. Very deferential courts
2. Provision of public access
a. Public buildings, parks, roads, easements of access
3. Provision of public services (often transfer to a private owner)
 a. Railroad tracks, electrical lines, oil and gas pipelines
4. Mitigating harm
a. Land Use restrictions
b. Sometimes transfers to private owner: Transfer of blighted
neighborhood to developer for redevelopment
5. Provision of broad societal benefits
a. Preservation easements, etc.
b. Sometimes transfers to private owner: Transfer of blighted
neighborhood to private company to increase tax income
and attract new jobs
ii. Just Compensation”
1. For property value
a. Market value, not subjective value, taking into account
expected changes
2. For damages to remainder
a. Can be part of land or easement, reimbursed for loss to
remainder from severance
15. Transactions
a. Agents
i. Listing broker
1. Fiduciary duty to seller
2. Get commission when they find a buyer
ii. Selling broker
1. Fiduciary duty to seller
2. Get commission when they find a buyer
iii. Buying broker
1. Fiduciary duty to buyer
2. Get commission after closing
iv. Fiduciary duties
1. Full disclosure of useful information
2. Accounting on all matters
3. Confidentiality on all matters
4. Obedience to clients needs
5. Negotiating best price for clients
6. Reasonable care to clients needs
b. Offers & Contracts
i. Contract before closing
1. Buyer must
a. Do title search
b. Obtain mortgage
c. Do inspection
ii. At closing
1. Transfer deed
c. Disclosures & Equitable Conversion
i. Defects
1. Must buy as is
2. Buyer must inspect property
3. Hidden defects must be disclosed
a. Ex bad pipes, weird neighbors, etc.
4. Stigmatization of property must also be disclosed
a. Ghosts, murder, meth lab etc
ii. Equitable conversion
1. After contract but before closing
a. Both seller and buyer are equitable owners
i. Share risk of loss
ii. Unless seller negligent
iii. Unless unmarketable title
d. Deeds
i. Warranties
1. General
a. seller owns the property she is conveying in fee simple;
b. she has the right to convey it;
c. it is free of encumbrances;
d. the buyer will enjoy quiet title to the property; and
e. seller will defend the buyer from all lawful claims of
others.
2. special/limited
a. Here, the seller warrants to the buyer that during the term
of the seller’s ownership of the property:
i. No one other than the seller developed ant lawful
claims of title to the property
ii. It does not, however, warrant that no such claims
arose prior to the seller’s ownership of the property
3. Quitclaim
a. Warrants nothing
b. It merely states that to the extent the seller has any interest
in the property, she conveys it to the buyer
c. These deeds are often used when there are minor boundary
disputes or uncertainties between properties
d. Their use increased during the foreclosure crisis when it
became clear that many foreclosing parties did not have
adequate legal documentation demonstrating their right to
foreclose many homes that were foreclosed upon were
subsequently conveyed to new owners by quitclaim deeds
4. Encumbrances & marketable title
a. Title free from reasonable doubt or threat of litigation
b. Defects
i. Lein
ii. Easement
 iii. Use restrictions
e. Title Assurance
i. Mechanics of recording: FITFIR & statutory systems
1. Goal
a. Provide (prospective) buyer of land a means to verify
earlier transactions in the property that are inconsistent
with his own (prospective) rights.
b. If earlier transaction but not recorded, subsequent sale may
gain priority of earlier transaction (fair? efficient!)
2. Types of Statutes
a. Pure race statutes
i. Race to the recorder’s office: first to record
(regardless of notice)
b. Pure notice statutes
i. Prior sales invalid against subsequent sales by good
faith purchasers that are without notice (regardless
whether second buyer records before prior buyer)
c. Race-notice statutes (CA, Cal. Civ. Code 1214)
i. Subsequent purchaser protected if (1) records before
prior buyer; AND (2) takes without notice of the
earlier conveyance
f. Mortgages & Foreclosure
i. Mortgage
1. The conveyance of a security interest in land, intended by the
parties to be collateral for the repayment of a debt. It’s a union of 2
elements:
a. A debt
b. Voluntary transfer of a security interest in the debtor's land
to secure the debt.
i. Debtor = mortgagor
1. Title
2. Right to possession
ii. Creditor = mortgagee
1. Right to foreclose
ii. Foreclosure
1. 120 days past due
a. Judicial procedure:
i. lender files a lawsuit in court. Court will order the
home sold at a foreclosure sale.
b. Non-judicial procedure:
i. steps outlined in state law. In most cases, the lender
must notify the borrower of the default, give the
borrower a short amount of time to bring the
account current, and notify the borrower (and
possibly the public) of the foreclosure sale date.
After completing the steps, the bank can proceed
with the foreclosure sale without court approval.