property law outline - emerson

8/3/2019 Property Law Outline - Emerson

1/24

;Property Law

I. Key Termsa. Rule Against Perpetuities Permits a person to control ownership of property for one

generation beyond those persons alive and known to the grantori. A future interest is invalid if it comes in to existence 21 years+ after the life in

questionii. RAP for Corporations is 21 years (no measuring life)

1. Symphony Space Inc. v. Pergola Properties (1996)a. SS purchases property from Pergolas predecessor in ownership for

$1 in order to create a tax haven, option purports to allow Pergolaoption to purchase at a number of dates.

b. Court holds that this arrangement violates RAP because it couldpotentially NOT vest within the requisite 21 year period for corps.

i. Court refuses to modify clear languageb. Restraints on Alienation Restraints against transfer are against public policy, so to be

enforceable must be reasonable in view of the justifiable interests of the partiesi. 2nd Restatement, Donative Transfers Restraints on charities are generally

allowable because it encourages charitable giving but a sale will be allowed if Court

finds that it is necessary and in the best interests of the charityc. Uniform Residential Landlord and Tenant Actd. Retaliatory Eviction LL barred from evicting tenant when done in retaliation of T

reporting a violation of housing codei. Affirmative Defense

ii. Activities in question must be directly related to the evictione. Implied Warranty of Habitability leased place cannot be unfit for human habitation

i. Does NOT apply in commercial leasesf. Remainder Bs future interest that occurs at the natural termination of As interest in the

propertyi. Vested Remainder Created in an already exiting person(s) and not subject to any

condition subsequent except the natural death of Aii. Contingent Remainder A remainder that is not guaranteed either unborn children

g. Destructibility of Contingent Remainders Class closes when the first possibleh. Executory InterestAn interest that occurs when As interest is cut short by some non-

natural actioni. Nuisance Analysis (Second Restatement of Torts)

i. Substantial Interfereceii. Unreasonable interference with Ps use and enjoyment of the property


2/24

II. Right to Exclude: Trespass and Nusiance

a. Trespass: No Harm, can be reasonable, strict liabilityi. Jacque v. Steinberg Homes Inc. (1997) mobile home

1. Jacque has an absolute right to exclude Steinberg from his land absent afinding of necessity.

ii. Pacific Air(1936) planes over farm1. There is no absolute right to the air above your property, after 20 years into

zoning, you have the right to highest point to which youve built yourproperty (ie. youre using)

iii. Baker v. Howard County Hunt(1936) Dogs and Bunnies.1. Baker and his wife molested by dogs from fox hunting club which disturb the

bunnies Baker is experimenting on. Hunt knows of the intrusion (letter) butdoes not stop the dogs from repeated intrusiosn. Baker kills some of thedogs when they come on his property

2. Equitable relief (injunction) can be had when a series of treaspasses are notdeterred by fines (ie. when it would be too expensive to go to court each timeit occurs)

b. Property Restitution1. Remove the improvement without destroying the land2. Recover the cost of the enhancement at true owners discretion or sell at the

pre-building market price to the Improver3. Court can sell the property and compensate each party for their prior value

in ownership.ii. Pile v. Pedrick(1895) Wall removal

1. Surveyor builds wall on Piles property by mistake, Pile refuses to allowworkers on his side to remove the intruding bricks, and the Court rules thatPedricks wall is a trespass that must be removed without further trespass.

(Court splits Court costs, acknowledging that Pile is being unreasonable)2. Demonstration of absolute right to exclude

iii. Golden Press v. Rylands (1951)1. Rylands builds wall with pilings underground on GPs property (1-3 inches).

Court holds that it is unconscionable to require the expense of ripping thewall down as it doesnt actually harm GP. Court orders compensatory

damages2. Mandatory injunctive relief may be denied depending on balancing test:

a. Good faithb. Effect on Plaintiffs Usec. Unconscionability of Removal Expense?

iv. Producers Lumber and Supply Co. V. Olney Building Co. (TX 1960)1.

Olney builds a house on property that was already sold to Producers. Olneygets upset during negotiations and tears down the building (self-help).

2. Restitution could not be applied because Olney destroyed the building,denying choice to the owner, so the Court imposed a punitive penalty on him.

c. Nuisance: harmful, unreasonable, balancing test.i. Anything that disturbs or annoys the free use of ones property, or which renders

ordinary use or physical occupation uncomfortable.ii. Hendricks v. Stalkner(1989) well vs. septic

1. Stalkner puts in a well within 100 feet of Hendricks proposed septic systembecause he cannot put his well anywhere else on his property.

2. Court uses a 4-part balancing test


3/24

a. Invasion/Potential Damageb. Normality of use (Septic vs. Well)c. Temporal Priority (which one is first)d. Motivation (not always a priority)

iii. Consider application of Coesian bargaining (In Stalkner, a bargain could have beenstruck between the parties that would have been in the interst of both)

d. Types of Rulesi. Property Rules: Costs set by parties, favored when transaction costs are low,

applying to real propertyii. Liability Rules: Costs set by 3rd parties, favored when transaction costs are high, ie.

negotiations not possible some form of necessity.iii. Inalienable Rule: When one party is incapacitated, ie. a drunk tries to sell a house.

III. Possession: right to control something superior to anyone elsesa. Three Principles:

i. Intent to Controlii. Notice of Control

iii. Effective Exploitationb. Pierson v. Post(NY 1805)

i. Fox hunt, no intent to control because you cannot control until youve actuallycaptured the fox. Notice of control not satisfied.

c. Ghen v. Rich (1881)i. the Iron Holds the Whale (notice of control)

d. Keeble v. Hickeringill(1707)i. There is intent to control due to Keeble having put out decoys, which is a custom of

the duck gathering business.e. Eads v. Brazelton (1861) Lead from the river

i. Brazelton finds a cargo of lead, marks it, but then leaves for a long time. Eads thenfinds the lead, places his boat over it, and begins to raise the cargo.

ii. Here, Brazelton never attained possession by occupation because he never actuallyreduced the lead to possession and stopped moving toward it.

1. Note; Abandon v. Slavagea. Abandon you keep all the property because there is no claimb. Salvage you keep half and return the other too the owner

f. Popov v. Hayashi(2002) Barry Bonds balli. Bonds ball falls into mob, Popov first to grasp it, but he is overrun by the mob and it

rolls to Hayashi (who is not part of the mob).ii. Ball is sold and proceeds split between the men, recognizing Popovs lockean

possession (effort towards) and Hayashis actual possession with good intent.g. Johnson v. MIntosh (US 1823) Nemo Dat (cannot convey what one doesnt

own)/Opposing Chains of Title

i.

Right of Discovery. Johnsons chain of title descends from Indian Tribe. MIntoshschain derives from sovereign discovery/occupation by the US in 1795.IV. Creation

i. A Lockean notion that you gain ownership over a thing by mixing your labor withsomething that might otherwise not have value.

a. INS v. AP(US 1918) Hot News ProtectionQuasi-Propertya. AP has a quasi-property right in the news it gathers for so long as its gathering in

a timely manner imparts value to its dissemination, so INSs repackaging and

transmission to the west coast is an illegal misappropriation.b. Midler v. Ford Motor Company(9th Cir. 1988) Right of Celebrity


4/24

a. Fords attempt to use a 3rdparty to sing Midlers song (which Ford owns) is anillegal appropriation of her identity.

i. Intent is an issue, Parody vs. Sale of Goods?c. Trenton Industries v. A.E. Person Manufacturing (1958)

a. Adler sues Peterson for unjust enrichment and copyright infringement after he giveshim a copy of his plans for a special fold-up high chair.

i. Unjust enrichment: Novelty and non-obviousnessii. Patent: not genius or inventive faculty (just mechanical skill)

V. Principles of Accessiona. Five Major Principals

i. Accessionii. Ad Coelem

iii. Accretion Gradual accumulation of sediment that transfers to the party owningthat boundry (Avulsion in contra where shift happens suddenly, here there is anattempt to maintain the status quo distribution of property)

1. Nebraska v. Iowa (1892)a. Iowas western boundary defined by Missouri river, which changes

course due to accretion, resulting in a different boundary for the state.b. Court holds that change is effective unless due to avulsion.

iv. Accession Changing something with ones laborv. Ratione Soli originally wild animals go to the land upon which capture takes place

1. No longer applied, now first possession unless trespass (ie. no hunting signs)b. Accession Doctrine: applies when someone mistakenly takes a physical object that belongs

to someone else and transforms it through their labor into a fundamentally differentobject. -- Ie. Good Faith Improvers

i. Person whose property has been taken deserves the original value, but improvermay take possession so long as they compensate the original owner for the priormarket value of the property.

ii. Elements:1. Good Faith (though bad faith may be possible)2. Degree of Transformation ie. is it fundamentally different.

iii. Weatherbee v. Green (1871)1. Weatherbee used Greens wood to make hoops for barrels which where

worth more than 28x the value of the wood.2. Court holds that there has been sufficient transformation to utilize accession

doctrinea. Good faith? Almost impossible to prove badb. Transformation? Can equate to a degree of value

i. Here 1x28 is enough, but 1x1.5 likely would not beiv. Edwards v. Sims (1929)

1.

Edwards discovers a cave mouth on his property which he turns into adestination ie. hotel, park. He argues that Lees demand for a survey of hisproperty will do irreparable damage to his rights.

2. Court holds that Edwards only has ad Coelum rights to the mineralsunderneath his property boundaries

3. Dissent argues that Edwards has made the entire cave his own by turning itinto a destination (an accession oriented possessory theory)

v. Fixtures1. A thing that which, though originally a movable chattel, is by reason of its

annexation to, or association in the use of the land, is regarded as part of theland."


5/24

2. Three distinct contexts:a. The Sale of Landb. The Lease of Property

i. Limited assumption of chettels annexationc. Holding a Mortgage

i. Secured claim includes the fixtures3. Strain v. Green (1946)

a. Greens sell their property to the Strains and then remove lights,mirrors, heating system, venetian blinds, and a shed.

b. Holding: obvious fixtures are chandelier, heating system, lights (thosethings permanently attached at time of sale), but mirrors arequestionable. Develops a balancing test:

i. Degree of Attachmentii. Degree of damage if removed

iii. Customized for the House/Property?c. Court looks at Objective intent of the parties

i. Bolt Rule if its bolted, its a fixtureii. Necessity would people believe so?

1. Changes with generations?iii. Relationship shifts by contextiv. Readily replaceable? Not if customized.

c. Increase: ownership of a baby animal flows to the owner of the motheri. Utilitarian basis due to ease of identification and babies reliance on the mother to

achieve maturity.d. Restitution v. Accession Doctrine

i. Restitution used more often in the modern context, favors the landowner overaccession, which does not give owner rights based on soft values.

e. Adverse Possessioni. Where someone without a proper title claims title based on their occupation and

use of the property over a long enough time (may necessitate good faith)ii. Six Basic Principles

1. Statutory period (generally 10-20 years)a. Intention that a reasonable gatekeeper would recognize the intrusion

and take action (an efficiency rational)2. Open and Notorious Possession

a. Must be exercised in a way that would ensure that anyone wouldknow that you were actively exervising possession

3. Actual// effective possession4. Exclusive Possession

a. Burnettexclusive control was indicated by adverse possesorslimiting who could use the property.5. Continuous Possession

a. Varies depending on context (ie. Summer use of a home intended forsummer use is continuous)

b. Tacking Principali. Privity of Estate with the former adverse holder

ii. Good/Bad faith may have an effect depending on JD6. Hostile (no consent by the owner)

a. Cannot be utilized with permission of the owneriii. Disability


6/24

1. Statute of limitations cannot be tolled at the time Adverse Posession isinitiated if the owner is disabled ie. unable to act as a gatekeeper due to

a. Minorb. Imprisonmentc. Insanity

2. Some jurisdictions will limit the Statute of Limitations to a reduced time onceyoure no longer disabled (or you die and estate gains title)

3. Disability doesnt apply if you become disabled during Adverse Possessioniv. Conversion of Personal Property: Generally 3 years to made demands for property

to be returned1. Taking/Demand TestSongbyrd

a. Statute tolls from moment conversion takes place2. Gugenheim/Demand Test

a. May not know a thing is stolen, tolls once demand for return is made3. Reasonable Standard New Jersey Rule ( OKeefe v. Snyder)

a. Tolls once owner discovers, or a reasonable person would haveknown that their property had been converted

v. Lessee of Ewing v. Burnett(US 1937) Adverse Possession1. Burnett is given title to land actually owned by Ewing and over a period of

twenty years Burnett pays taxes, brings action in trespass, and generallycontrols the land.

2. Applies the six general principles outlined previously.vi. Howard v. Kunto (1970) Continuity and Tacking

1. Surveyor messed up, placing peoples houses on land they didnt actuallyown. Several swap, with one ending up with title to Kuntos land.

2. Court holds that summer use is continuous if a home is intended only forsummer use (or that is the custom in the area)

3. Court holds that taking may occur between adverse possessors when there isPrivity between them (here via K)

4. Note: Here, Howard appeared to have bad faith, pure black letter law maywell have resulted in a decision in Howards favor.

vii. Songbyrd v. Estate of Grossman (1998) conversion, Adverse Possesion ofChattell, Taking/Demand Test

1. Songbyrds estate demands compensation for Bearsville Records use ofSongbyrds recordings without compensating Songbyrd. Question is

whether Statute of Limitations has tolled.2. Court utilizes a Taking/Demand test ion holding that the statute tolled from

the moment the conversion occurred.f. Finders vs. Converters

i. Finder has a duty to hold an object and not convert it until the statute of limitationtolls. Abandoned vs. Loss is hard to pin down1. Some jurisdictions (Japan) have a clear finder/return law requiring

compensation for returning anothers property.

ii. Armory v. Delamirie (1772) Jewel (Sequential Adverse Possesion)1. Boy finds a jewel and brings it to a jeweler, wherein the jewlers boy steals

the stones.2. Court holds that finder has exclusive right to the chattel against any other

than the true owner.iii. Clark v. Maloney(1840) Logs in the Bay (Sequential Adverse Possession)

1. Clark finds logs in DE Bay and ties them up in a creek. Maloney claims thathe has found them floating in a creek.


7/24

2. Court finds that Clark, as the original finder, has the same rights againstsubsequent finders as the owner.

iv. Anderson v. Gouldberg (1892) converter v. converter adverse possession - logs1. Anderson steels logs and then has the logs stolen by Gouldberg2. Court holds that as the initial converter, Anderson has rights against all other

converters, here Gouldberg.v. Fish v. Steward(NH 1804) NH Bees

1. Fish trespasses on Stewards land and discovers a bees nest, then marks thetree. Fish alleges that he has possession based on intent and notice to contro

2. Court holds that the trespass is illegal and that bees nests belong to theproperty owner.

vi. Goddard v. Winchell(1892)1. Winchell retrieves a meteorite that had landed in Goddards land, which was

under grass lease at the time.2. Court says that Goddard has right to the metiroite as it is analogous to

minerals under the ground, to which the tenant has no rights.g. Lost vs. Mislaid Property

1. Aim is to efficiently return property to the rightful owners.ii. Lost: Finder has a possessory claim against but the owner

iii. Mislaid/Misplaced: Possessory right ot the owner of the establishment where theitem has been misplaced.

1. Extends to agents, so a waiter finding a wallet would need to turn it over tothe owner/manager who would have a right against all but owner

h. Values Subject to Ownershipi. Newman v. Sathyavaglswaran (2002)

1. Two parents sue LA county for deprivation of their property after the countyremoved their childrens corneas.

2. Legislation induces presumptive consent, though a duty to bury lies with thekin, the right to the body itself is unclear.

3. Two potential alternatives:a. Res Nullis: once dead right to your own body ends (and no body right

to kin, ie. cant sell organs); vs.b. Right to Exclude:

ii. Moore v. Regents of University of California (9th Cir.1. Moore has his spleen at UCLA and then his doctors use his cells to establish a

significant, and lucrative, cell line. Moore argues that he should becompensated and that UCLA breached its fiduciary duty.

2. Court holds that a breach did occur, but that Moore had no right to his owncells, citing Numerous Clausus, ie. that there is no appropriate category ofproperty rights (Ironic given 9th Cir. created the right to publicity)

i.

Artist Moral Rightsi. Moakley v. Eastwick(MA 1996)1. Moakley paints a mural on a church in 1971. Baptist church purchases the

church in 1989 and attempts to tear it down. Moakley files for injunctionunder MA law protecting artistic property.

2. Artists rights include:a. Right to Integrity: cant change artvia physical defacement or

alterationb. Right of Paternity: author can claim authorship or disclaim his

authorship for just and valid reasons.j. Cultural Patrimony


8/24

i. United States v. Carrow(10th Cir. 1997)1. Carrow buys a ceremonial mask from a widow of a well know native

American dancer, and then tries to sell it to a collector. He is tried under theNative America Graves Reparation Act

2. Carrow argues that cultural patrimony is void for vaugness, but court holdsthat the government must, and has, shown that the object

a. Was not owned by an individual Native Americanb. Could not be alientated, appropriated, or conveyed by an individual

native Americanc. Has ongoing historical, traditiona, or cultural importance that is

central to the groups culturei. This is the tribes call (battle of experts)

k. Criminal Laws Protecting Property Rights1. Intended to avoid negative impacts of self-help2. Cheaper/more effective than repeated civil actions3. Potential Social Stigma used as deterrent4. Backstops Civil Remedies

ii. People v. Olivo (NY 1981)1. Combined case regarding whether individuals can be charged with

shoplifting/petty larceny if youve yet to leave the premises2. Yes, so long as you have INTENT to steal and EXERCISE DOMINION that is

inconsistent with the continued rights/intention of the owneriii. State v. Shack(NJ 1971)

1. Gov. workers go to a farm to see migrant workers where the property ownerseeks to exclude them from the property, he calls trooper to remove them.

2. Under NJ law, the right to exclude is tempered by right to access migrantworkers, ie. a case-by-case right to exclude in order to defend workers?

3. Alternative: This could/should have been grounded in landlord tenant rights,and would not have intruded so severely on foundational property right.

VI. Civil Law Claimsa. Real Property

i. Trespassii. Ejectment

iii. Nuisanceb. Personal Property

i. Trespass (taking of goods)ii. Detinue (tort action for unlawful detention of goods)

iii. Trover (wrongful conversion)iv. Replevin (recovery of goods from a wrongful taking)v. Trespass to Chattel (injury or interference with goods)

1.

Intel Corporation v. Hamidi(2003)a. Hamidi is a former intel engineer who sends emails to intelemployees. Intel sues for trespass to chattel, claiming that his emailscause injury y draining employee resources.

b. Court holds that emails do not contsittue an injury or inteferancec. Might have been an injury if its hurt consumers as with Compuserv

or Hotmail.c. Self-Help

1. A landlord can use reasonable force to retake property from a delinquenttenant when:

a. Has the right to retake the leased property


9/24

b. Does so in a way that is unlikely to provoke violence2. Berg v. Wiley(1978)

a. Berg attempts to retake property after Wiley starts to renovate whichis a default on her lease. Legislation would have allowed Berg toretake via judicial action within 3-10 days.

b. Court holds that Berg used unlawful force in changing the locksbecause Wiley had not voluntarily surrendered her occupancy.

3. Williams v. Ford Motor Credit Company(1982)a. Ford retakes a car from Williams, who does not object vociferouslyb. Holding: a secured party has a default right to secure collateral

possessions without judicial process if it can be done without breachof the peace (securing party has more rights than an actual owner).

ii. Trespass1. Necessity

a. You have a right to trespass under circumstances where:i. No alternative

ii. Not doing so would cause some harm to oneself or onesproperty

iii. Imminent nature of the potential injuryb. Ploof v. Putnam (1908)

i. Ploof sails on lake Champlain when he is forced to take refugeon Putnams dock. Putnams servant unties him (commiting

trespass against the sloop) resulting in injury to Ploof, hisFamily, and his property.

ii. Entry upon land may be justified by necessity, which applieswith special force in the case of physical harm or deathly peril

c. McConico v. Singleton (1818)i. McConico brings an action for trespass against Singleton for

hunting on his land, even though it is not market.ii. American custom is allowing hunting on unimproved and

unenclosed land, this custom cannot be overturned by anindividual.

1. This shifts burden to landowner to use the land, orallow its use by others for sustenance.

2. Public Accommodationsa. There is a reduced right to exclude for common carriers and

innkeepersi. Likely due to a perception of a special duty and likely economic

monopolyii. Required to charge each person a reasonable charge

b.

Uston v. Resort international Hotels (1982)i. Uston prohibited from casino due to card counting. Casinoclaims it has a common law right to exclude

ii. Court holds that NJs comprehensive gambling regulationpreempts and limits right to exclude, ie. the regulation shouldbe amended to prohibit card counting.

iii. Like State v. Shack, this approach fails to establish a bright linerule, instead creating additional confusion.

3. State Action Doctrine and Anti-Discrimination Lawsa. Shelley v. Kraemer(1948)


10/24

i. White property owners agree to a covenant that they will onlysee them to other whites. Kraemer attempts to purchase ahome in the neighborhood and Shelley attempts to enjoin himfrom doing so.

ii. Court holds that the 14th amdt prohibits judicial action thatwould limit equal protection under the law.

b. Attorney General v. Desilets (1994)i. Landlord refuses to rent to unmarried couple because of his

faith as a catholic.ii. The state has the right to limit his exclusionary capability if it

can establish that it has a compelling interest in stoppinghousing discrimination outweighs the burden on his religiousbeliefs.

d. Licensesi. A waiver of an owners right to exclude

1. Not a lease, because its not exclusive2. No right against the owner other than to use pending his revocation3. Unlike an easement, it is not tied to the land.

ii. Marrone v. Washington Jockey Club (1913)1. Marrone is removed from and denied access to a club because of past doping

incidents, even though he has a ticket.2. Court holds that a ticket creates a license, not a right In Rem, and is revocable

for cost this is consistent with modern American doctrine.a. Real world exception is IP, but happens often in overbooking, etc.

iii. Hurst v. Pictures Theaters, Limited(1914)1. Hurst is thrown our of a theater after he was misidentified as not paying2. Court holds that the ticket was a grant by contract to see the picture, and

that the theater had an obligation to prove that he didnt have a ticket prior

to throwing him out else stand liable for assault.a. Issue here, would anyone be removed if potentially liable for assault?

iv. ProCD, Inc. v. Zeidenberg (1996)1. Z steals information from a directory ProCD has put together and sells with a

shrinkwrap license enclosed. Z updates his webpage with several versions(so he knew of the license)

2. Justice Easterbrook holds that Z knew of the license, could have returned theproduct, and is liable for damages (this is really a K issue).

e. Bailment: a temporary transfer of custody of property from the owner to another1. Transfer of property2. Actual possession and intent to control3. Duty of Care

a.

Mutual Benefit = reasonable careb. Benefit to Bailee = great care/extraordinary carec. Benefit of Bailor = slight care/recklessness

ii. Involuntary Bailment an absence of express agreement, but a non-owner ends upwith physical control over property

1. Minimal duty of care2. A finder is likely considered an involuntary bailee3. Fusion of In Personam and In Rem rights

iii. Allen v. Hyatt Regency-Nashville Hotel(1984)1. Car is stolen from a locked parking garage. Ticket includes a use at your

own risk clause on the back.


11/24

2. Court says there is definitely a bailment when keys transfer, when not, abalance of control test. Here, balance favors bailment because of lock,enclosure, attendant etc.

iv. Cowen v. Pressprich (1922) Misdelivery of Bailment1. Cs messenger delivers a negotiable bond to Ps clerk by mistake. Ps clerk

then gives to someone else by mistake. Was there a bailment?2. There was an involuntary bailment because the clerk voluntarily assumed

possession. Court applies absolute liability rather than a reasonable care

standard that would have resulted in a balancing test. N3. Dissent argues that this is an involuntary bailment here should have resulted

in a negligence standard due to how the messenger delivered.v. The Winkfield(1901)

1. W runs into the Mexico (a mail ship) and the Royal Mail sues the Ws ownerson behalf of its bailees (the mail that was lost). W argues that RM hassovereign immunity and should be able to sue it for a loss it will not sustain.

2. Court holds that against a wrongdoer, possession equates to title so a bailorhas a right to sue on behalf of its bailees.

f. Abandonment1. Intent to abandon2. An act of abandonment

ii. Pocono Springs Civic Assoc. v. MacKenzie (1995)1. MacKenzie tries to abandon worthless propert in a development2. PA law says cannot abandon real property (must be accountable)

iii. Eyerman v. Mercantile Trust Co. (1975)1. Deceaseds will calls for her home to razed but the homeowners association

claims this is a protected place and razing the grounds would be contrary

to public policy.2. (Holding here?)

VII. Estates in Land (Feudal Interests)a. Questions to ask

i. What language creates the particular estate?ii. Once identified, what are the estates distinguishing attributes?

1. Is the estate divisible? (Can it pass by will)2. Is the estate descendible? (Will it pass by the statutes of intestacy, if its

holder dies without a will)3. Is the estate alienable? (Is it transferable during its holders lifetime)

iii. Is there a future interest to accompany the estate?1. Under what conditions does A lose property?

a. Does the property go back to O or to C?b. Numerus Clausus

i.

Catalog of estates is finite and closed unless the legislature defines a new form ofestates in land1. This ensures that owners know what theyre getting (efficient avoidance of

externalities) ie.a. Measurement Costsb. Frustration Costsc. Restraints on Alienation

i. Void Restraints1. Total Restrains2. Sales requiring consent of another


12/24

3. Sale within a club with arbitrary power to denymembership

4. Racial restrainsii. Valid Restraints

1. Preemptive option (right of first refusal)2. Sales requiring consent of board of directors

(discretionary level is important)3. Restraints on use

iii. Mtn Brow Lodge No. 82 Indp. Ord. of Odd Fell. vs. Toscano1. Given lodge based on fee simple subject to condition

subsequent that it be used by the lodge and with arestriction on its sale.

2. Court strikes restriction on sale (void restraint) butmaintains conditionality of use.

a. Here, this could result in use as something otherthan a lodge couldnt it?

d. Fragmentationii. Johnson v. Whiton (1893)

1. Grandfather attempts to pass his 5 grandchildren varying shares in hisestate, one limited to the children on her fathers side.

2. Justice Holmes concludes that this is an attempt to create an abolished feetail, and that the grandfather cannot devise a new form of property right.

iii. Gamer v. Gerrish (1984)1. Lease to Gerrish grants him the right to terminate his lease at any time,

creating a life tenancy.2. Court holds that a lease for life is acceptable, even though it doesnt fit one of

the three categories of leases ie. At-Will, Periodic, or Fixed Period.c. Fee Simple Absolute

i. Created by writing, To A and his heirs (and his heirs not required)d. Defeasible Fees

i. Words of mere desire/hope/intention are insufficient to create a defeasible fee1. Clear durational language is required

ii. Absolute restraints on alienation are VOID (an absolute ban on the power to sell ortransfer)

iii. Fee Simple Determinable Possibility of Reverter1. Created by writing To A, so long as or To A during or To A until

a. Must use clear, durational language2. If the stated condition is violated, forfeiture is automatic3. Distinguishing characteristics

a. It is divisible, descendable and alienable4.

Yes, there is a future determinable interest the possibility of reverter(exists in the grantor)

iv. Fee Simple Subject to Condition Subsequent1. Created by writing To A, but if X event occurs grantor reserves the right to

reenter and retake.a. Grantor must use clear, durational languageb. Grantor must carve out the right to reenter

2. Distinguishing characteristicsa. It is divisible, descendable and alienable

3. This estate is NOT automatically terminateda. Terminated at the grantors option


13/24

4. Yes, there is a future interest the right of entry synonymous with the powerof termination (exists in the grantor)

v. Fee Simple Subject to Executory Limitationa. Created by writing To A, but if X event occurs then to B. (outcome

determinative)b. If the condition is broken the estate is automatically forfeited in favor

of someone other than grantor (goes to B instead)c. Characteristics are the same as a fee simple determinabled. Yes, future interest the shifting executory interest

2. City of Klamanth Falls v. Bell(1971)a. Corp passes land to the city to use so long as it is a library in 1927, in

1969 city stops using it as a library and seeks declaratory judgmentb. While Corps. RAP should be 21 years, here, the Court pierces the

corporate vale (it was a tiny company) to return to the land to theheirs of the two individuals who had incorporated and dissolved.

e. Life Estatei. Measured in terms of explicit life time, NEVER in terms of years

ii. Created by writing, To A for life1. A life estate can be measured by the life of someone other than the grantree,

life estate pour autre vieTo A, for the life of Biii. Distinguishing characteristics

1. WASTE applies whenever more than one other party has an interest in theproperty

a. Voluntary (Affirmative) Waste actual, overt conduct that causes adecrease in value

b. Permissive Waste neglect that causes a decrease in property valuei. Life tenant must simply maintain the property in reasonably

good repairc. Ameliorative Waste must not engage in acts that will enhance the

propertys value unless all future interest holders consenti. Brokaw v. Fairchild(1929)

1. B inherits alife estate to his fathers manhattan mansion,but it costs him more than he can rent it for. He wantsto tear the building down but his Family (executorinterest in reverter) wont agree.

2. A life tenant may do whatever is required to ensure theenjoyment of the estate, but may not exercise an act ofownership that would change the condition in whichthe property was intended to pass (unless agreed)

2. Open Mines Doctrinea.

Life Holder may make use of mines to remove minerals, but only thosemines already in existence when he takes possession

i. Cannot build extra minesiv. How remainder holders defend interest

1. Damages sue for cost to put land back to the way it was2. Wait until lifeholder dies and sue his estate3. Injunctive Relief Force LH to comply4. Accelerate the Remainder (Expel LH)

a. Applies only in instances where doing substantive harm that will losethe property otherwise


14/24

VIII. Future Estatesa. Who has the present interest?b. Who has the remainder interest?

i. Is that a definite interest or contingent upon some other event?ii. Are the number of successors known or yet to be born (subject to open)

1. The moment the first successor becomes of age to take possession, the classcloses and all unborn members are closed out

c. If the present interest holder violates the condition, does it automatically go to B or does Bhave to take action first?

WHO WHEN INTEREST BECOMES POSESSORY HOW LONG WHAT CUT'S ITSHORT

Grantor

(Is the grantor taking possession?) Reversion Possibility of reverter Right of Interest

Fee Simple Life Estates

Lease Hold(measured by afixed # years)

(If cut short, doesit go back tograntor?)

Determinable Subject to

ConditionsSubsequent

Grantee

(Is the grantee taking possession?) Remainder

o Contingento Vested

Absolute Subject to Open (know some but

possibly not all of the heirs that theproperty will be divided between)

(If cut short, doesit go to thirdparty?)

Subject toExecutoryLimitation

IX. Concurrent Estatesa. All joint tenants have full and absolute right to use of entire propertyb. Main Obligation not to oust the otheri. Only obligated to pay for essential maintenancec. When only 1 tenant in possession

i. May only recover expenses to maintain property when they exceed profit gainedfrom property

ii. Tenant B cannot claim rent for unused portion1. UNLESS ousted

d. Partition division of jointly owned property (can be done at any time by either party)e. Ousting

i. Ousted Tenant (B) must formally demand entrance and A refuse/deny1. EXCEPTION for constructive ouster when nature of property is that both

cannot occupya. Only recognized in some states

ii. At time of partition:1. A is entitled to expenses incurred for maintenance + improvements to value

of property2. B can differ those costs with the value of rent for his half

a. Only up to the value owed to Aiii. Gilmor v. Gilmor(1984)

1. Two brothers pass their joint land to two sons and a daughter. The brothersreguse to allow daughter to use her share of the property.


15/24

2. Court holds that there has been ouster ie. an act of exclusion or utilizationthat prevents another from doing so.

3. She can seek compensation for the months she has been excluded, orpartition and sale.

f. Types of Concurrent Tenantsi. Tenancy in Common

1. Each side has full rights to property and can transfer at willii. Tenancy in Common with Survivorship (Joint Tenancy)

1. When Tenant A dies, his rights transfer to B automatically2. Requirements:

a. Unity in Time survivorship established at same time for both partiesb. Title title explicitly conveyed at the time of establishing survivorshipc. Interest - intent by all parties to enter into survivorshipd. Possession must always possess the property at the same time

3. Presumption against survivorship, must be stated explicitly in contract4. When Party A transfers his interest, survivorship terminated -> Joint

Tenancy in Common5. Harms v. Sprague (1984)

a. Two brothers own a joint tenancy. One brother morgages his interestin the property.

b. Court holds that mortgage given by one joint tenant does not sever thejoint tenancy, and survivorship flows to the brothers.

i. Lien theory would remain vested in joint tenantsii. Title theory would flow to joint tenancy

iii. Modern view: intention of parties governs.iii. Community Propertyiv. Tenancy in the Entirety (Marriage only)

1. Marriage owns property and cannot be dissolved2. Creditors cannot attach3. OBrien v. OBrien (1985)

a. Husband and wife are teachers, she pays for him to get through medschool. When he finishes, he divorces her.

b. Court considers her level of support of him, expectation of hisadditional income potential, and grants her damages to that effect ie.treating his license as a piece of divisible property.

g. Partition in Kind v. Partition by Salei. In-Kind is the breakup of the property in its current form

ii. By-sale sells the entirety and divides the proceeds back to the parties1. This has negative soft-value implications

iii. Delfino v. Vealencis Trash vs. Development case1.

Court defaults to an in-kind partition of land (though in this case withsignificant disadvantages to one party)

X. Entity Propertya. A governance strategy that permits non-possessory interests in property.

i. Classic case here is Trusts -> beneficiaries and managers are distinctii. Bifrication because it allows more effective management of common spaces/access etc.

b. Leasehold:i. Efficient and professional management

ii. Reduced transacting costs in movement of individuals.iii. Financing device - ie. a form of loaniv. Risk Spreading


16/24

1. Landlord is able to move elsewhere/etc.2. Tenant is able to ensure that they're not investing in a property they may seek to

leave over time.

c. Types of Leases:i. Term of Years: Fixed time at which it ends

ii. Periodic Tenancy: Automatically rolls over (for us, its periodic even if term, so long as itcontinues after term is up)

1. Reduced transaction costs2. Expectation not to have to move or raise costs

iii. Tenancy at Will: Tenancy that ends at any time given notice (generally notice precedesby one rental period to another ie. 30 days, etc.)

1. Mutual decision regarding continuationiv. Tenancy at Suffrage: Tenant remains until after lease is up, but landlord has yet to

demand that you leave.

1. Landlord can evict at any time2. Not Adverse because originally took possession with landlords consent

XI. Landlord-Tenant Dutiesa. Tenants Duties

i. Duty to Repair1. T is responsible for keeping the premises in reasonably good repair

a. T must not commit waste (voluntary, permissive or ameliorative)2. Law of Fixtures When T moves a fixture, he commits voluntary waste

a. A fixture is a once movable thing that because its attached to realty, itobjectively shows the intent to improve the realty

i. Parties private agreement on the matter controlsii. In absence of agreement, T may remove installation so long as

removal does not cause substantial harm to premisesb. T must not remove a fixture, even if T installed it (Fixtures pass with

ownership of the land)ii. Duty to Pay Rent

1. If T breaches and remains on premises, landlord maya. evict through the courts and sue for rent owed ORb. continue the relationship with T and sue for rent owedc. Landlord MUST NOT engage in self-help

2. If T breaches and vacates the premises, landlord maya. Surrender treat Ts breach as an implicit offer of surrender and L

can accepti. T demonstrates intent to surrender via words or conduct

b. Ignore the abandonment and hold T responsible for rentc. Reletthe premises on Ts behalf and hold T liable for any deficiency

i. Majority holds that L reasonably try and find a substitute (Dutyto Mitigate)

3. Paradine v. Jane (1647)a. foreign troops take land that Paradine is renting from Janeb. Paradine still has duty to pay, as he would have had the benefit of a

windfall, so he has the negative of an invasioni. This is indicative of an approach where rights to land and

covenant to pay rent were separate legal issues.iii. Forfeiture Clause

1. Turns an independent covenant into dependent covents2. As a result, conduct of parties determines right to rent vs. quiet enjoyment


17/24

iv. Eviction1. Landlord must go through summary process, cannot forcibly eject2. In some jurisdictions, there is strong presumption of renewal unless

Landlord can show good reason (Anti-Eviction Statute)3. Constructive Eviction

a. Breach of Covenant to Quiet Enjoymentb. Where landlord has the ability to control a nuisance but does not, a

tenant can be constructively eviceted

c. Blacket v. Olanoffi. Blacket (landlord) seeks back rent from Olanoff, who has

moved out of his apartment due to the noise from a loungeproperty owned by his landlord.

ii. Here, because landlord had an obligation and ability to controlthe lounge noise, he is responsible for his tenants lack of quietenjoyment (otherwise tenant would have to sue in Tort).

4. In Re Kerr- Surrendera. Tenant goes bankrupt after a divorce and landlord relets his

apartment, initially at a lower rate, and sues for back rent and thedifference between the new tenant and Kerrs lease amount.

b. Court holds that because new lease is longer than the old, landlord isonly eligible for damages up until the lease is relet

i. This creates a negative incentive to lease only for the timeremaining in the old tenants leaseor not at all.

b. Landlords Dutiesi. Duty to Deliver Possession

1. Majority requires that L put T in actual, physical possession of premisesa. If at start of Ts lease, another T is in possession, then L is liable to T

ii. Duty to Mitigate (different than from in K)1. Sommer v. Kridel(1977)

a. Landlord has an duty to attempt to mitigate damages by relleting thespace.

b. Landlord may otherwise be barred from damages due to "dirty hands."c. Landlord must show attempt to mitigate by showing unit, listing it,

advertising it as available, etc.

iii. Implied Covenant of Quiet Enjoyment(Applies to both residential andcommercial)

1. An implicit promise that T has a right to quiet use and enjoyment of premiseswithout interference from L

2. Occurs through actual, wrongful eviction3. Breach by Constructive Eviction

a. Substantial Interference attributable to Ls actions or failure to act

i. Doesnt have to be permanent, just chronic problem (i.e. -every time it rains, the apartment is flooded)

b. Notice T must give L notice of the problem and L must fail torespond meaningfully

c. Get Out T must vacate within a reasonable time after L fails tocorrect the problem

4. L is not responsible for bothersome conduct of other tenantsa. EXCEPT L has a duty not to permit a nuisance on the premisesb. EXCEPT L must control common areas


18/24

5. In response to breach, T may leave and breach lease -> use CQE as shieldagainst breach.

a. In partial eviction, can remain but sue for partial reclaim of rentiv. Implied Warranty of Habitability (Applies only to residential leases)

1. Premises must be fit for basic human habitation (must meet bare livingrequirements)

a. Appropriate standard set by housing code or by independent judicialconclusion (court decides what is habitable on a case by case basis)

b. Examples: Failure to provide heat in winter, lack of plumbing, lack ofrunning water

2. When L breaches, T may:a. Move Out and terminate the leaseb. Repair and deductc. Reduce rent (or withhold all rent until court determines fair value)d. Remain in possession and pay rent + affirmatively sue for money

damages3. Javins v. First National Realty Corp (1970)

a. Tenants refuse to pay rent after 1500 housing code violations arediscovered and they demand they be fixed.

b. DC Court finds implied warranty of habitabilityi. Significantly increases landlord responsibilities (and rents)

while reducing leaseholders possessory rights and bargainingpower. (cannot be negotiated away)

v. Breach of Explicit Covenantsa. Intent of Partiesb. Vital to Agreementc. Actual knowledged. Motivation of Partiese. Implicit in all of these factors is the interdependent conduct of the

parties ie. pharmacy wanted but will only come if exclusive2. Medico-Dental Bulding Co. of LA v. Horton and Converse (1942)

a. HC rents in building for 16 years with exlcusive right to sell as adrugstore, explicit ryder to lease to this effect. New tenant startsselling drugs as well.

b. HC doesnt have to pay back-rent because the explicit covenant wassubstantially breached.

c. Retaliatory Eviction if T lawfully reports L for a housing code violation, L is barred frompenalizing T

XII. Assignments and Subleasesa. Unless the lease says otherwise, the law allows T to transfer his interest.

i.

When T transfers in whole, T has accomplished an assignmentii. When T transfers only portion of his interest, T has accomplished a subleaseb. Assignment

i. L and T(2) are:1. In privity of estate

a. Privity of Estate L and T(2) are responsible for all promises in theoriginal lease that run with the land

2. NOT in privity of contract unless T(2) expressly assumed all promises of theoriginal contract

ii. L and T(1) are:1. NO LONGER in privity of estate


19/24

2. Are in privity of contracta. T(1) is secondarily liable to L if T(3) defaults, T(1) can still be sued

but once T(2) assigned to T(3), L cannot sue T(2)c. Sublease Chain of Gatekeepers

i. L and Subleasee are:1. NOT in privity of estate2. NOT in privity of contract

ii. T and Subleasee are responsible to each otherd. Covenants "run with the land" ie. "Touch and Concern the land":

i. Covenants to act in a certain way: imposes a duty on landlord and the tenant.ii. Obligations to pay money (owner paying taxes)

iii. Termination clauses carry overiv. "Runs with the land" if:

1. Parties intended them to flow/carry on and2. Touches and concerns" the land ie.

a. Benefits or burdens either the landlord and/or the tenant or vice versab. "so related to the land so to enhance its value and confer a benefit upon it

v. Mullendore Theaters Inc. v. Growth Realty Investors Co. (1984)1. Mullendore provides original deposit, subsequent new owners are indemnified

against the security deposit via the city. Growth argues that an obligation to repaya security deposit does not run with the land.

2. Court holds that City (previous owner to Growth) is not required to pay deposit (itdoesnt run with the land) so Growth has no liability via indemnification.

e. Assumption : when 2nd assignee expressly binds themselves in contractual terms to the lease(creates Privity of contract). Binds assignee to the original lease. (does NOT novate tenant's

obligations).

i. Ie. When 2nd assignee fully accepts terms of original lease, agreeing to be bound in bothPrivity of contract and Privity of estate.

f. Novation: When parties agree to erase any privity of contract liability on the part of the primetenant.

i. These principals operate separately. So you could have assumption without novation orvice versa (so careful drafting is necessary ensure privity of estate and contract aremaintained with tenants).

XIII. Law of Servitudesa. Easement the grant of a non-possessory property interest that entitles its holder to some

form of use or enjoyment of anothers land (servient tennemant)i. Requirements

1. Statute of Frauds2. Notice (applies to burdened property only)

a. Burdened party must have known when she purchased the propertythat it was burdened

i. Constructive notice can apply3. Intent

a. Did the parties contemplate the burden running with the land whenthey signed the contract?

b. Scope What was intended to be granted? (Intending a right of way ora paved, double-lane road)

c. Transfer/Divide Can the person holding the easement transfer ordivide it?

i. Right to transfer/divide is assumed unless explicitly statedotherwise


20/24

ii. Exceptions1. Easement by Estoppel (converts license into easement)

a. Reasonable relianceb. Foreseeablec. Inducedd. Detrimental

2. Easement Implied from Prior Usea. Previous use must have been apparent prior to dividing propertyb. Parties expected that the use would survive division because it is

reasonably necessary to the dominants lands use and enjoymenti. i.e. - A owns 2 lots. Lot1 is hooked up to a sewer drain on Lot2.

If A sells Lot1 to B, easement to use sewer drain is implied.3. Necessity the landlocked setting

a. Grantor conveys a piece of land that includes no way out exceptthrough grantors remaining land.

4. Prescription adverse possessiona. Continuous Use for the given statutory period

i. Weaker than general APb. Open and Notorious Usec. Actual Used. Hostile Use (w/o servient owners permission)

iii. Negative Easement entitles its holder to compel the servient owner to refrain fromdoing something that would otherwise be permissible

1. Can ONLY be created expressly in assigned writing2. Only 4 Categories

a. Lightb. Airc. Supportd. Stream Water from an artificial flow

iv. An easement is either appurtenant or in gross1. Appurtenant benefits its holder in his physical use or enjoyment of his prop

a. Requires two parcels of land to be involved (dominant and servient)b. Transfers automatically with the land

2. In Gross gives its holder only a personal or commercial gain that is notrelated the use/enjoyment of his land

a. NOT transferrable, unless for commercial purposesi. Exclusive Can divide/apportion the exclusive easement

ii. Non-Exclusivev. Termination

1. By agreement in writing2.

By their own terms (stated that easement expires in 10 years)3. By merger (servient state purchases dominant state)

4. Abandonment (dominant estate by its own actions demonstrates intent toabandon)

a. Must show both intent and actual conduct5. Adverse Possession (servient estate and reclaim easement)6. Overuse7. Marketable Title Acts some states require that easements be recording

every 10 years to remain validb. Licensea mere privilege to enter anothers land for some delineated purpose

i. Not subject to statute of frauds


21/24

ii. Licenses are freely revocable at the will of the licensor1. UNLESS estoppel applies to bar revocation

iii. General scenarios1. Tickets create freely revocable licenses2. An oral easement (neighbors talking by the fence), ONLY creates a freely

revocable licenseiv. Estoppel

1. Bars revocation, but only when the licensee has invested substantial money,labor or BOTH in reasonable reliance on the licenses continuation

c. Covenant A promise to do or not to do something related to land (contractual limitation)i. Requirements

1. Writing2. Intent

a. Was the burden intended to run with the land?b. Was the benefit intended to run with the land?

3. Touch and Concerna. Does covenant confer an actual benefit to the intended land?b. Does it confer an actual and substantial burden on the land?

4. Notice must have notice of burden when purchasing property5. Privity

a. Horizontal ONLY enforced if created in context of conveying landi. Mutual (Massachusetts only) also enforce covenants amongst

parties that have easements between each otherii. Instananeous only enforces covenants formed at the time of

the sale of property1. Those that accept instantaneous also accept mutual and

general horizontal privityb. Vertical (relationship between A and her successor to the property)

i. Requires subsequent owner to succeed one of the originalowners interest, in a non-hostile manner through contract,devise or dissent

ii. Vertical privity does NOT exist if property acquired throughadverse possession

ii. Distinction between covenant and equitable servitude:1. Covenant when P seeks monetary damages (remedy at law)2. Equitable servitude when P ONLY seeks injunctive relief (equitable relief)

iii. Equitable Servitudes a promise that equity will enforce against successors:1. Requirements:

a. Written (generally, but not always the promise is in writing)b. Intentc.

Touch and Concernd. Notice (only to the burden)

2. Privity is NOT REQUIRED to bind successorsiv. Implied Reciprocal Negative Servitudes (in Residential Subdivisions)

1. When privity does not exist, but other homeowners were the intendedbeneficiary of covenant then court enforces common plan/covenants

2. Requires common plan for subdivisiona. If plan can be discerned than even plots without covenant are implied

i. Requires that when the sales began, subdivider had a generalscheme of residential developmentthat included Ds property


22/24

ii. D had notice of the promise of the promise contained in theprior deeds (Actual, Inquiry and Record Notice)

3. MUST determine if there is a common schemea. Road splitting properties can break commonalityb. Look to see if advertisements or statements were made at time

developer sold subplotsi. Ads or false statements may lead to fraud or estoppels claims

4. Massachusetts does not recognize implied negative servitudesv. Defenses to covenants (assumption is that covenant enforceable)

1. Changed circumstancesa. Conditions changed so dramatically in the restricted neighborhood

that enforcement would be of no substantial benefit to the dominantestates

2. For reasons of public policya. Total restraints on alienation are ALWAYS rejectedb. Partial restraints determined based on how narrowly restricted

3. Cant be required to give up required rights4. Acquiescence Beneficiary tolerated a breach and failed to object in a timely

manner5. Abandonment Demonstrated a clear intent to abandon the benefit6. Unclean Hands Party seeking to enforce, violated covenant as well7. Estoppel8. Laches covenant was unenforced for a substantial amount of time and lack

of enforcement was unjustified (usually entails unclean hands)9. Marketable Title Acts Failure to re-record the covenant10.Merger Beneficiary and burdened properties are merged11.Release Benefitted party expressly releases burdened land12.Prescription

d. Covenants and Homeowners Associationsi. Developer files a declaration with certain procedures, limits & rights

1. Procedure lays out structure of governing board and how elected2. Limits lists certain restrictions imposed on buyers that association enforces3. Rights set of rights that association uses to enforce

ii. Must be created at time of inceptioniii. Examples include homeowner assoc., condominium and co-opiv. Added rules must be reasonable. (Presumption is that rule is reasonable)

1. Who made the decision? (Was association controlled entirely by developer)2. What was the purpose of the new rule? (Benefit all owners or just developer)3. Rule must be rationally related to achieving a reasonable purpose4. What were the means of enforcing the rule?

a.

Was it reasonably tailored to achieve the stated purpose?


23/24

XIV. Adverse Possession

a. Elements:i. Continuous and uninterrupted possession during the given statutory period

ii. Open and notorious1. The sort of possession that a usual owner would make under the particular

circumstancesiii. Actual

1. Entry cannot be hypothetical or fictious. Dont allow symbolic entryiv. Hostile possessor can NOT have true possessors permission to be there

1. Possessors state of mind does not matter (doesnt matter if he thought it wasactually his land. The claim is judged based upon an objective standard)

b. Tackingi. One adverse possessor may tack on his time, his predecessors time so long as there

is privity1. Privity is satisfied by any non-hostile nexus (blood, contract, deed )

ii. Not allowed when previous owner was ousted from landc. Disabilities

i. Statute of limitations does not run against a true owner that is afflicted by adisability at the inception of the adverse possession

ii. Common disabilities include infancy, insanity, imprisonmentd. Exceptions

i. No AP of government landii. Color of Title if you get a defective deed and act/believe you have possession, the

statute of limitations is shortened AND you can gain possession of the entire land indeed

XV. Recording Systema. O sells property to A and then turns around and sells the same property to B.

i. If B is a bonafide purchaser and in a notice jurisdiction, B wins. Regardless if sherecords before A does.

ii. If B is a bonafide purchaser and we are in a race-notice jurisdiction, B wins IF sherecords properly before A does.

b. Bonafide Purchaser a) one who purchases property for value AND b) without notice thatanyone else got there first

i. Purchase for value substantial pecuniary consideration1. Does not protect donees, heir or devisee

ii. Without notice that anyone else purchased1. Actual Notice prior to Bs closing, B was advised of As existence2. Inquiry Notice B is obligated to whatever an inspection of the land would

reveal (regardless of whether B actually inspects)

3.

Record Notice At the time B takes, As ownership is already recordedproperly within the chain of titlec. Estoppel by Deed one who conveys land, in which he has no interest, is estopped from

denying the validity of that transfer if he subsequently acquires the land that he hadpreviously transferred (improperly)


24/24

XVI. Possessors Rightsa. First in time is First in Right (Tapscott v. Cobbs)

i. Between 2 parties, neither of whom have good claim. The winner is the party thatlast held possession of the property through peaceful possession.

b. Has right to be free of trespass and nuisancec. Trespass invasion of land by tangible, physical object

i. To remove a trespasser, you bring an action of ejectmentii. Types of Property

1. Total Private do not need a reason to excludea. Exceptions: Necessity, Consent and Public Policy

2. Private Where Some Access Allowed (Doctors office, Food Lion)a. Question of would this person have been allowed in this place

normally?3. Private with Public Characteristics (mall)

a. NJ requires good reason to exclude someoneb. For the rest, No BAD reason

i. Cannot exclude a person from a covered place that is a memberof the covered class.

4. Public/Government Spacea. Requires a higher justification

iii. Anti-Discrimination Law cannot be excluded from public places (lodging, home,restaurant, common carrier)for a bad reason

1. The more the property is open to the public, the more restrictediv. Damages for Trespass

1. Value of diminution in value from trespassd. Nuisance substantial, intentional and unreasonable interference with anothers use and

enjoyment of lande. Right to Oil

i. Four options for dealing with oil rights1. Tenancy in Common (shared, joint ownership) each party has right to 50%

of oil2. Capture each party has the right to all of the oil, whomever gets it first,

owns it3. Reasonable Conduct as long as you act in reasonable manner, allowed to

have as much as you can getf. Finders Law Status of lost (and found) property

i. Lostii. Mislaid

iii. Abandoned owner forms intent to abandon all rights to his property and then,whoever finds it next can claim full rights

1.

Buried artifacts are not abandoned, they are placed there for a reasong. Stolen Property Claimi. Give goods to merchant for repair, M sells it to B. I cannot recover goods from B.

h. Competing Claims to Propertyi. Pierson v. Post (fox case) the person who captures the fox, possesses the fox

property law outline - emerson

Documents