Property Outline

I. Methods of Acquiring Property Rights

a. Capture
i. Rule of Capture - Capture on Public Land
 Can you have property interest by mortally wounding an animal?
 Pursuit is not enough
 Pierson v. Post - Fox hunting, you gain property rights when you
kill/capture
 Private Land
 Control + Possession = ownership of wild animals while they are
on your property
 Keeble v. Hickeringill - Scaring ducks away Case
 Keeble sued for damages after Hickeringill purposefully
frightened ducks away from decoy pond by firing a gun
 Appeals - defendant wins - malicious act to interfere with
profession of another
 With different facts, such as defendant having his own
pond, defendant wins
 Landowners are considered prior possessors of first possessors
of wild animals on their land
 Landowners are considered prior possessors of 1st
possessors of wild animals on their land
 One should not benefit from trespass
 If animal is outside natural habitat, then owner still has
ownership if it escapes from capture in foreign area
 Armory v. Delarmirie - Chimney sweep and finding diamond Case
 Finder prevails against all but the true owner and a prior
possessor prevails against a subsequent possessor.
 Anderson v. Goldberg - Woodcutters trespassing on land Case
 Concerns Relative Rights - woodcutters win because they are
the prior possessors even though they got the timber illegally by tort
b. Finders Keepers?
i. Finder Prevails against everyone but the true owner; a prior possessor doesn't
lose ownership to a subsequent possessor; losing something does not relinquish those
rights (applies to theft)
ii. Item found in public place - apply lost/mislaid doctrine
 Lost - Item accident parted with = goes with finder
 Mislaid - intentionally placed but unintentionally left behind = goes to
management of place
 Abandoned - goes to finder = finder is entitled to full ownership
because owner intentionally and voluntarily relinquished right; owner has the
full intention to leave the property
iii. Item found on private place/land - determine if there is a possessory interest of
the landowner
 Hannah v. Peel - Finding broach in a private soldiers' house Case
 Private property must have possessory interest - here he
doesn't
  Man (soldier) found a brooch while staying in house owned by
defendant
 Subsequently turned into police who handed it to defendant
after it went unclaimed by owner, defendant
 Plaintiff demanded return or value of broach/damages
 Because defendant was not physically present in the house at
any time (no seizen), P’s find was defensible against all parties except the
rightful owner
 Since Peel never was in physical possession of house, he
had no claim over the broach
 Without actual possession, there can be no
constructive possession
 Note 1: Never had possession of house, so he never had
possession of broach. Rule announced in this case determined he
had no prior possession
 Note 3: It would make all the difference had Peel
actually lived there (No Seizen)
 Bridges v. Hawkesworth - Lost/mislaid in public place. Wallet found on
floor of shop Case.
 The mere fact that the banknotes were found on the floor of
Defendant’s shop was not sufficient for the Defendant to retain
possession of the notes against the claim of P, the finder.
 Owner has much less control over public space verses private
land
 Degree of control - Shop (public space) vs. House (private space)
 McAvoy v. Medina - Barber shop and Wallet on counter Case.
 Plaintiff was a customer at Barber shop and finds wallet on the
counter which he left with Defendant barber shop to attempt to discover
the rightful owner
 When the rightful owner was not found, plaintiff demanded
return of the pocket-book, Which Defendant refused to give back
 When a customer leaves a wallet on the counter of a shop, the
item is not subject to historical rules regarding lost property – it is mislaid
property
 D shop owner had a duty to hold the wallet for the rightful
owner until the rightful owner came to retrieve the wallet
 Relationship between rival claims
 Defendant does not gain possession of wallet,
but instead must take reasonable care for the safekeeping
until the owner calls for it
 Finder of mislaid property has no rights to it
 Finder of lost property has rights as most recent
possessor
 Policy: if I misplace property, I will go to
where I misplaced it and owner has duty to keep it
 Mislaid property - finder is not entitled to ownership but the
owner has a reasonable duty
 Finder acquires no rights
  Duty to locate the true owner if he might know or have as
reasonable means of finding out the identity of the true owner
 "The finder of lost property has a valid claim to the same against
all the world except the true owner, and generally that the place in which
it is found creates no exception to this rule." - Rule from Hannah
 Owner of the real property where the property was
found has a duty to find the owner
 South Staffordshire Water Co. v. Sherman - Pool cleaning and found
rings Case.
 Private property must have possessory interest
 Sherman hired South Staffordshire Water to clean pool situated
on Sherman’s land, within which, during the cleaning, Staffordshire Water
found two gold rings and thereafter refused to give the rings to plaintiffs
 Holding: there is a presumption that whenever something is
found on a person’s land, possession of that object is maintained by the
landowner.
 Man possesses everything which is attached to or under his land
 Constructive possession – landowner prevails
 Agency law demands employee give to employer who
gives to land owner
 Elwes v. Briggs Gas Co. - Prehistoric Boat found on land during and oil
and gas lease Case
 Plaintiff leased his land to defendant oil company
 Prehistorical boat was embedded in soil, court found that the
landowner was entitled, not the lessee
 Under the lease, did the gas company have right to the boat?
No
 Plaintiff had lawful possession, good against all world
and property of boat
 The boat was not considered a mineral, and thus not a covered
under the lease.
 Ownership extends to items embedded in land - even if not
known about if it is attached to the ground then the landowner possesses,
if not attached, like a wallet, then finders keepers
b. Adverse Possession - Squatter's rights = SoL
 Cannot bring Adverse possession Case against the government
 Government owns public lands in trust for society
 Elements - C.O.A.H.
 Continuous Entry
a. For the statutory period
b. Not constant, but consistent (can be seasonal/ordinary for the
property)
c. Needs to be actual and exclusive - Exclusive right to excllude
others (basic property right)
d. Date of entry is whe4n SoL begins to run
 Open and Notorious
a. Objective test to ordinary person for Notorious entry
b. Puts owner on notice
 c. Can be constructive-should have known
 Actual
a. Actual physical entry to start SOL (letters don’t work)
b. Exclusive
 Hostile/Adverse under a claim of right
a. Don’t have permission to be there/intent to claim as own -
trespassory interest
b. Under claim of title NOT color of title
c. Claim of title: Simply one way of expressing the requirement of
hostility or claim of right on the part of an adverse possession
a. Hostility under claim of right, holding land as his own
b. Color of title: refers to a claim founded on a written instrument
or judgment or decree that is for some reason defective and invalid
a. Incorrect written instrument that is relied on (reliance),
courts are more deferential
b. The trespasser has to yield to efforts of the true owner to eject
them, then the trespasser can obtain legal rights to the property
 Van Valkenburgh v. Lutz - Shed/home on adjoining lot for disabled brother on
neighbors land and puts garden and other structures on it Case
 Lutz sues for interference of right of way and wins
 Van Valkenburgh sues to eject the Lutz from the property
a. Lutz argues adverse possession under statutory law
a. 15 years? 1912 - 1948
b. Exclusive? - Only Lutz was there
c. Adverse? - the cops and Van Valkenburghs tried to get
them out
b. Proof: protected by substantial enclosure, or usually cultivated
or improved
 Trial court - yes adverse possession.
 Appeals - no adverse possession (no claim of title)
a. Lot was not "improved" because the garden did not span all 4
lots and the chicken coop could be moved
b. Lutz's all but conceded ownership when they sought out
easement - Res Judicata dictated it was already decided in the easement
case that they didn't own it
 A party takes adverse possession of a property owned
by another when he takes actual possession of it, encloses it and/or makes
improvements to it, for statutory period of years.
 
 Howard v. Kunto - Mis-surveyed vacation home land Case
 A large group of families owns beach homes, but each deed is a little off - lots on
deeds are swapped
 Howards convey land they own to Moyer and Moyers convey title to the Kuntos
land to the Howards
 Now Howards own Kuntos land and Pursue quite title to get official deed
 Kuntos counterclaim - adverse possession
 Where you have several successive purchasers who believe they are
acquiring lot a, but are actually acquiring lot b, and lot b is
 contiguous with lot a, but lot b is occupied continuously for more
than ten years by successive owners, there is privity ( Tacking Rule)
 Holdings: Defendant wins – adverse possession
 Summer possession can constitute continuous possession if such
possession is similar to the conduct of surrounding owners.
 Tacking of adverse possession is permitted if the successive occupants are
in privity, if there is a reasonable connection between the predecessors
and the successive occupants
 Tacking - ability to connect record title holders over a period of time to
tack ownership to meet statutory requirement
 Tacking - usually used for expanding what you own, not to change the
entire lot that you own
 Privity - tight succession of interest, direct contractual relationship
between owners
 Taking -
 One adverse possessor can tack his time only the predecessors time to reach the
SOL. (see Howard v Kunto above)
 Ouster - person who kicks of the current adverse possessor and restarts the SOL
 Disabilities -
 If owner is not able to be capable of inserting rights then it extends the rights of
the property holder
 Sol will not run against an owner with a disability if they have a disability at the
time the person takes possession.
 Infancy, insanity, imprisonment
 Statutory Example:
 Not a blanket 5 year extension for people with disabilities
 If it applies in the first place, then upon death the disability goes away
 KS Disability Statute
 Minors, incapacitated persons, persons imprisoned for greater than
a life sentence
 Max extension of 23 years
 Heirs can bring action about for former owner
 
c. Gifts - 3 requisite requirements
a. Intent - on behalf of donor to make gift in the present and property must also be
existing
 Must intend to make a permanent transfer
 Intent and mental capacity
 When the courts determine conditional intent, they look at factors
including the donor’s expressed intent and behavior, the type of property
being given, whether fraud has occurred, and whether conditions that
were attached to the gift were met
b. Delivery of possession to donee (by donor) with intention to make gift
 Delivery:
i. Actual/manual delivery - donee must take dominion and possession
over the property if possible
ii. Constructive delivery (color of title - owning part) – if it is not
feasible to deliver an item because its location or size would make
 physical delivery impossible, then the donor can instead surrender
control of the item
 Traditional rule does not recognize constructive delivery,
although, rule has been relaxed.
a. Example: giving keys to a car instead of actually giving
car
ii. Symbolic delivery – when actual physical delivery is impossible or
impractical, delivery may be symbolic, as by the donor giving some
object that is not the actual gift but is symbolic of it.
 Example - contract or note (not deed, but contract)
 Example - hand over a model of such
a. Acceptance of the gift by the done – presumed; refusal must be affirmative
 Acceptance is presumed by the court, especially if it is a pricy gift
Note – promises to make gifts in the future are not enforceable
o Acquisition by Gift
 Newman v. Bost -
 P nurse sues D administrator of deceased's estate claiming the administrator
converted the gifts the deceased had made to her by gift causes mortis
 Life insurance policy wasn't sufficient delivered - Because no manual
delivery
 Furniture that could be opened with keys was delivered - Keys were
constructively delivered
 Furniture not requiring keys - no delivery (not hers)
 Her living room quarters were hers because they were considered inter
vivos
 Piano - not hers, because it was in the common a rea
 Holding: To constitute a gift causa mortis, a gift made in contemplation or
immediate death, there must be an intention to make a gift and actual delivery
of that gift
 There must be clear intent
 actual manual delivery must occur when articles are present and capable of
manual delivery
 Constructive delivery may occur when the things intended to be given are not
present, or when present are incapable of manual delivery because of their
weight or size
 Gift Inter Vivos - gift made during a person's life - "between the living"
 Gift causa mortis - gift given in contemplation of death
 can be substitutes for wills; gifts given in contemplation of death
 Typically if a miracle occurs and a donor recovers, the gifts go back to
donor and is revoked
 Strictly construed because can fight a will
 Gruen v. Gruen - Klimt Painting Case
 Son (plaintiff) sued seeking declaration that he is the rightful owner of a painting
that his now deceased father had given to him, despite the fact the father
retained possession of the painting
 Father wished to retain a life estate in the painting but intended to gift
it to his son upon his death -- giving a future interest to his son
  A donor doesn't need to comply with will formalities to make a lifetime gift of a
remainder in tangible personal property while retaining a life estate. "To make
a valid inter vivos gift, the donor must intend to make a present transfer, either
actual or constructive delivery of the gift must occur, and the donee must
accept the gift." An inter vivos gift requires the donor intend to make an
irrevocable present transfer of ownership.
 Court found in favor of son – valid inter vivos gift was made as donor intended
to make a gift to his son, only constructive delivery was needed as actual
delivery of the painting to the plaintiff would have defeated the donor’s intent
to retain a life estate in the painting and acceptance is deemed presumed.
 Father has a life estate with the remainder to the son.
 You can have present interest without present possession
 Gifts Inter Vivos are irrevocable
 Lifetime Gift - takes effect immediately and is irrevocable. Requirements:
 Donative Intent - the donor must presently intend to forever part with
some interest in the property
 Yes - the letters showed intent.
 1st letter - no, should have been in will but it was
instructed to be destroyed
 2nd letter - destroy 1st letter
 3rd letter - I'm giving you the painting (valid)
 Delivery - the donor must relinquish the property to the donee. Usually
physical delivery but sometimes letters will symbolically suffice to fulfill
delivery
 Combat fraud
 Acceptance - the donee must accept the gift. If the gift is valuable to
the donee, the law presumes acceptance.
 Valuable gifts are assumed accepted
 Title and Possession are not mutual
 Wills do not transfer title
 Ownership = Title
 Estates in Land and Future Interests
o Possessory Estates - Future Interests

Freehold Estates      

Present Possessory Estate  Future Future Interest 

Interest  (3d party) 
(grantor) 
Fee Simple Absolute  None  None 
 “
O to A and his heirs”
 R
ule of Construction: FSA presumed  
 a
bsolute ownership of potentially
infinite duration, freely alienable, no
 accompanying future interest
 P
resent estate that does not terminate
Fee Simple Determinable Possibility of None 
 “ Reverter 
O to A [conveyance], so long as [term (automatically) 
limit of time] blackacre is used as a
school [special limitation]”
 T
erminates automatically once special
limitation is violated 
 W
ords of limitation are durational
(while, during, so long as, etc., OR
reversion clause) 
 N
o reversion language = presumed
FSA 
Fee Simple Subject to Condition Right of Re- None 
Subsequent  Entry 
 “ (at grantor’s
O to A, but if Blackacre is not used for option)
school purposes, O have the right to  
enter and retake Blackacre” Entry is not
 T physical, can
erminates at grantor’s option if be by O’s heirs 
condition is violated 
 W
ords of limitation are conditional
(upon condition that, but if, however,
so that, provided that) 
Fee Simple Subject to Executory None  Executory Interest 
Limitation   
 “ - divests to third party
O to A, but if blackacre is not used for - automatic
school purposes, then to B”  
 A Springing and Shifting
– possessory intent
 B
– future interest (executory interest)
 O
– no future interest – complete
conveyance of all of O’s interest
Fee Tail (lesser quantum)  Reversion  Remainder* 
 “
 to A and the heirs of his body”
 B
asically obsolete (replaced by life
estate)
 L
imits inheritance to blood, and limits
alienability
Life Estate (lesser quantum)  Reversion  Remainder* 
 L    
asts only for lifetime of person by “To A for life” “When A dies, property goes
whose life it is measured   to B”
 W “When A dies,  
ords of limitation = for life  property goes *Remainder Elements:
back to O” 
 T
  possessory immediately
ransferable during estate holders
- Reverts back upon termination of present
lifetime, but not at death (subsequent
to grantor possessory interest AND 
transferee can transfer at death, but
still either reverts to O or goes to 
remainder man)  (terminate only by death, not
 P by occurrence of a condition
resumption that estate will pass to other than death)  
future interest holder in original
condition 
 R
ights of possession not absolute (can’t
take action to harm future interest
holder – see waste below) 
 

o Future Interests
o Future Interests - confer rights to the enjoyment of property at a future time. Most
future interests are created in the context of a family wealth transfer transactions,
particularly those implemented through a trust.
o If it happens in the future it is a Future Interest and makes the property
alienable
o Interests retained by the transferor (O), known as:
 Things that come back to O:
 Reversion - what happens after life estate
 Possibility of Reverter - FSD
 Right of entry (also known as power of termination) - FSSCS
o Interests created in a transferee, known as:
 To transferee:
 Vested remainder
 No conditions
 Know holder is going to take
 Ex: O--> A for life, then to B and B's heirs
  A has a LE
 B has a vested remainder in FSA
 No conditions
 Contingent remainder
 Wants land to be used in certain ways and want people taking
land to behave in a certain way
 Wants future events to dictate who takes
 Executory Interest
 Remainder can't divest/shut out preceeding interest
 Ex: O-->A to use as a church, if no longer used as a church then
to B
 B divests A of interest if condition happens
 Whose interest would be divested?
o A future interest is always attached to some estate of the types considered in
this chapter
o A future interest gives legal rights to its owner
 Future Interests In the Transferor
o Reversion -
 A reversion is the interest remaining in the grantor, or in the successor
in interest of a testator, who transfers a vested estate of a lesser quantum
than that of the vested estate which he has
 Fee simple is a greater estate than a fee tail, which is a greater
estate than a life estate, which is a greater estate than a leasehold
estate-
 Possibility of Reverter - arises when an owner carves out of his estate a
determinable estate of the same quantum
 Right of Entry - when an owner transfers an estate subject to condition
subsequent and retains the power to cut short or terminate the estate,
the transferor has a right of entry
o Future Interests in Transferees
 Future Interests in Transferees - 3 types of future interests in
transferees: 1) vested remainders, 2) contingent remainders, and 3)
executory interests. A remainder or executory interest cannot be
retained by the transferor; these interests are created only in
transferees.
 Intro - The earliest form of a remainder was a future interest in
a transferee that is certain to become possessory upon the expiration of
the prior estate created.
 Ex: A for life, then to B and her heirs. B has a vested remainder
in fee simple. Upon A's death, B or B's successor in interest is
entitled to possession in fee simple.
 Remainders - 3 types: Vested and Contingent
 Vested remainders - Vested if
 Vested Remainders
 It is given to an ascertained person, and
 Contingent Remainders
  It is not subject to a condition
precedent/contingency (other than the natural
termination of the proceeding estates)
 It is given to an unascertained person, or
 It is made contingent upon some event
occurring other than the natural termination of the
preceding estates
 Subject to a condition precedent
 Becomes possessory upon the expiration of the
preceding estate
 Vested but subject to divestment
 A remainder is vested if it is created in an ascertained
person and is ready to become possessory whenever and
however all preceding estates expire
 Indefeasibly Vested - The remainder is certain of
becoming possessory in the future and cannot be divested
 Vested subject to open (Kids) or Vested subject to
partial divestment - if later born children are entitled to share
in the gift
 Kids not born and thus not named but still gets
a share
 TEST for Vested - Needs both to be vested:
  
i. Vested? AND -
i. Certain persons (ascertained) be able to
be named
i. Not subject to some
contingency/condition precedent
 Vested subject to Open
 Good as long as 1 person is
ascertained and not subject to a condition
prescient
 If no children --> no ascertained
person
 Under conveyance, each child
would take an equal share
o Executory Interests - is a future interest in a transferee that must, in order to
become possessory:
 Divest or cut short some interest in another transferee (this is known as
a shifting executory interest), or,
 Divest the transferor in the future (this is known as springing executory
interest.)
 Executory Interests -
 Divests preceding interest
 Shifting: If someone other than grantor had possession immediately
before became possessory
 “O to A, but if/so long as A does not use the land for farming,
then to B”
  A – Fee Simple Subject to Executory Limitation
 B – Shifting Executory Interest (O gets nothing)
 No shifting interest --> no transferring if transfer would
cut off a freehold estate
 
2. Springing: if grantor had possession of property immediately before
become possessory
 “O to A when she turns 21”
 O – fee simple subject to executory limitation
 B – springing executory interest
 No springing Interest - something that pops up in the
future
 Court of law dealt with property but becomes
court of chancery (Court of equity/fairness)
 White v. Brown - (Jessie Lide didn't want her house sold)
 Action to determine whether a hand-written will conveyed a fee simple in the
plaintiff White or merely a life estate in the plaintiff with the remainder to go to
defendant
 Rules of construction of an ambiguous will favors a conveyance of fee simple
absolute
 Court ruled in favor of Defendant, heirs - House was not to be sold does not
evidence a clear intent to pass only a life estate
 Court ordered sale of the house
 FSA was found - have to look at the whole instrument
 A will is presumed to pass the entire interest unless words and context clearly
reflect a contrary intent. If a will is ambiguous, the courts must apply specific
rules of construction to determine its meaning.
 Waste Doctrine -
 Affirmative waste - voluntary, active
 Intention destruction during your ownership of a life estate
 Exception: open minds doctrine - occurring at the time life estate occurs
and grantor is aware which can continue during the life estate
 Example - mining, oil drilling
 Not reasonable wear and tear
 Permissive Waste
 Allowing diminution of value
 More like negligence --> not keeping up land
 Has to be beyond reasonable use
 Ameliorative waste - increases the value of the property
 No longer works
 Mahrenholz v. County Board of Trustees - Confusion whether FSD or FSSCS Case.
 "This land to be used for school purposes only, otherwise to revert to Grantors"
 Whether the original deed conveyed a FSD with possibility of reverter or a FSSCS
with a right of re-entry
 Plaintiff argues: as soon as land wasn't used for school purposes it
reverted back to Hutton and he conveyed it to plaintiff
 Defendant argues: subject to condition subsequent - through the
disclaimer school owns because Hutton never re-entered
  FSD: temporal language but " only" should mean "so long as"
 Needs durational language
 Court: FSD- Only followed by for school purposes is a limited grant subject to a
condition, creating a FSD; therefore, automatic reversion
o
Types of Remainders     

Type of Remainder  Explanation  Example 

Vested Remainder   Fut “O to A for life, then to
ure Interest that waits B and her heirs” 
and moves in regardless  A
 No = Life estate
t subject to condition  B
precedent = Vested Remainder in
 Ho FSA 
lders are ascertainable  O
or known persons = nothing 
Contingent Remainders  It  
is given to an
unascertained person,
or
 It
is made contingent
upon some even
occurring other than the
natural termination of
the preceding estate

precedent

upon the
expiration of the
preceding estate
Vested Remainder  Co  “
Subject to Open  nveyance to group/class  O to A for life, then to
  A’s children”  
 At (A has one child, B, at
least one class member time of conveyance) 
is ascertainable and not  A
subject to any = Life Estate 
conditions   B
 As =Vested Remainder
certained – one child Subject to Open 
must be alive  P
  otential future children
 Int = Contingent
 erest is vested but may Remainder (which
have to share if more becomes Vested
members are Remainder Subject to
subsequently added to Open at birth) 
class   O
 If = nothing 
later born children are “O to A for life, then to
entitled to share in the A’s children” (if no
gift (not necessarily children yet born at the
ascertained) conveyance) 
 A
=Life Estate 
 F
uture Children =
Contingent Remainder
 O
= reversion
Vested Remainder  Hy “O to A for life, then to
Subject to Divestment  brid Vested/Contingent B, but if B marries,
Remainder, but can be then to C” 
lost before it becomes (B isn’t married at time
possessory of conveyance, but if B
 W gets married[either
e don’t know the exact before or after A dies],
share because not vested then C’s interest
divests B’s interest; if
 Gi
B never marries, C’s
ves grantee vested title
interest is destroyed) 
to future interest, but
title may be divested if  A
condition occurs  = Life Estate 
 Co  B
ndition Subsequent: = Vested Remainder
placed either after  Subject to Divestment
words of conveyance or  C
in a separate clause  = Shifting Executory
 In Interest
defeasible Vested - the  O
remaineder is certain of = nothing 
becoming possessory in
the future and cannot be
divested
 
Contingent Remainder   It “O to A for life, then to
is given to an B and her heirs if B
unascertained person or survives A” 
 It  A
is made contingent = Life Estate 
 upon some event  B
occurring other than the = Contingent
natural termination of Remainder
preceding estate  O
 Co = Reversion  
ndition Precedent "O to A, then to B and
 Co her heirs if B survives
ndition placed either A, and if b does not
before words of survive A, then to C
conveyance or in same and his heirs”
clause   A
 Gr = Life Estate
antor retains reversion  B
interest if CR is last = Contingent
interest in conveyance  Remainder
 If  C
remainder doesn’t fit = Contingent
into another category, Remainder
then CR   O
= reversion
 
o TEST for Vested - Needs both to be vested:
  
 Vested? AND -
 Certain persons (ascertained) be able to be named
 Not subject to some contingency/condition precedent
 Vested subject to Open
 Good as long as 1 person is ascertained and not subject to a
condition prescient
 If no children --> no ascertained person
 Under conveyance, each child would take an equal share
o Differences:
 Vested remainder accelerates when preceding estate ends
 Vested - assignable (know they happen) contingent assignable
 Destructibility
 Rule against perpetuities (contingent)
 Waste - vested (has standing), contingent (no standing)
 Destructibility of Contingent Remainder (mostly abolished)
o Destructibility by Contingent Remainders - A legal remainder in land is destroyed if it
does not vest at or before the termination of the preceding freehold estate. If the
remainder is still subject to a condition precedent when the preceding estate
terminates, the remainder is wiped out, and the right of possession moves on to the
next vested interest
 Ex: "to A for life, then to B and her heirs if B reaches 21." If at A's death
B is under 21, B's remainder is destroyed and reverts back to O
 Contingent remainders can also be destroyed by forfeiture or merger
  Ex: "to A for life, then to B and her heirs if B survives A." A conveys his
life estate to O, the life estate merges into the reversion, destroying B's
contingent remainder
 The contingent remainder is destroyed if it does not vest at or before the
termination of the preceding freehold estate
 If the remainder is still subject to a condition precedent when the preceding
estate terminates, the remainder is wiped out and the right of possession moves on to
the next vested interest
 Example: “O to A for life, then to B and her heirs if B reaches 21”
 B may not reach 21 by the time A dies, so B’s remainder is wiped out
 Doctrine of Merger: (abolished in most states)
 if the life estate and the next vested estate in fee simple come into the hands of
one person, the lesser estate is merged into the larger
 “O to A for life, then to B and her heirs if B survives A”
 A’s life estate mergers to reversion
 Rule in Shelley's Case (abolished in most states)
 Merges a LE and a vested remainder in fee
 Ex: O-->A for life, then to A's heirs (Shelley's Case Conveyance) – instead
of A having a life estate, there is immediately a fee simple
 One instrument
 Creates a life estate in A
 Purports to create a remainder in persons described as A's heirs
 The life estate and remainder are both legal or both equitable
 Makes land more marketable and alienable from the start
 Doctrine of Worthier Title (abolished in KS)
 Where there is an inter vivos conveyance of land by granter, with a limitation
over to the grantor's own heirs, either by way of remainder or executory interest, no
future interest in the heirs is created: rather, a reversion is retained by the grantor
 Example: “O to A for life, then to O’s heirs” – Instead of giving a remainder in
O’s heirs, it gives O a reversion
 Furthers alienability
 Ex: O-->A for life, then to O's heirs (contingent remainder)
 Only applies to contingent remainders
 Gets rid of contingent remainders and replaces with a reversion
 A has a LE then back to grantor
 Difference between Shelley's and DWT -
 Shelley's - A's heirs
 DWT - LE in A and contingencies in O's heirs
 Hypo:
 Billy Bob to Jurgen for life, then to Angelina and her heirs; but if
Angelina marries Brad, then to Jennifer and her heirs
 Jurgen: life estate
 Angelina - vested remainder in fee simple subject to total divestment
 Jennifer - shifting executory interest in fee simple absolute
 Bill Bob - nothing because there is an executory interest
 Hypo:
  Tom to Nathan for life, then to Jackson for life, the to Malcom's heirs.
Nathan, Jackson, Malcome are all alive. Malcom, a widower, has two
sons -- Bob and Ted.
 Nathan - life estate
 Jackson - vested remainder in a life estate
 Malcom's heirs - contingent remainder in fee simple absolute
 Contingent because heirs are not ascertained
 Tom - reversion in fee simple absolute
 Restatement 3rd Changes:
 All future interests are "future interests"
 Reversions, right of entry, remainder, etc.
o Vested or contingent only
o Class subject to open
 Class, in existence, which can be increased
 Example: Children
o Trusts:
o Comes from the Statute of Uses and the basis for modern trust law
 Use = temporary form of possession
o Substantial use for trust
o Transferee holds legal title and manages (makes decisions) for benefit of beneficiaries
o Beneficiaries have equitable interest
o Trustee holds power to sell and manage assets for benefit of trust
o Allows settlors to arrange their assets in ways that maximize flexibility in property
management as well as transfer wealth to future generations
o Separation of legal and equitable title
o Trustee = fiduciary and subject to stringent duties in managing the property
o Use - temporary form of possession
o Trustee - legal fee simple absolute
o Beneficiaries - equitable fee simple interest
o Personal Conduct restraints:
 Common law no longer requires ex's to support wives
 Wives have an elective share in deceased husband's estate
 Note: contingent remainders cannot follow life estate, so must be a shift
executory interest 
 Rule Against Perpetuities
 All or nothing Rule
 Compromise where courts want marketability and property owners who want
to rule from the grave
 Courts rule - 21 years from time of conveyance
 RAP - Rule that strikes down contingent interest that are too remote
 No interest is good unless
 It must vest, if at all,
 Not later than 21 years after
o RAP -
 A future interest is valid if:
 It vests or fails (Don't care which, we just want certainty)
 Within 21 years after
  Some life in being at time of creation
 Rule of logical proof
o Does it satisfy?
 Is it even subject to RAP?
 Is it contingent?
 RAP only applies to FI that are not vested
 Contingent Remainders
 Executory Interests
 Class Gifts
 Will this contingent future interest vest for fail within the time period of
lives in being plus 21 years?
 If you can't prove it will vest or fail by 21 years after, its not good under
RAP
o The interest is void if there is any possibility that the interest will vest more than 21 yrs
after the measuring life.
o Step 1: Check if rule applies to the future interest.
 Applies to Contingent remainders, executory interests, and certain
subject to open
 Step 2: Identify conditions precedent to the vesting of the interest
 What has to happen before future interest holder can take?
 Step 3: Find a measuring life
 Whose life or death is relevant to the conditions occurrence
 Is it the life estate person or is it the grantor. (it can be both if subject to
open)
 Step 4: Do we know with certainty within 21 years of the death of measuring life
that the future interest hold CAN or CANNOT take? If YES=conveyance is good, if NO
and that condition precedent could or could not occur until after 21 yrs=void.
Rule of Convenience: A class will close as soon as one member of the class is entitled
to immediate possession or enjoyment when the possibility of births ends (death of
ancestor)
 As applied to class interests, the Rule requires that
1. The class must not remain open beyond the relevant 21-year period, and
2. The interests of each class member must vest, if at all, within the relevant 21-year
period. An open class is one to which new members can still be added, while a closed
class can no longer admit new members. If the Rule is violated as to even a single class
member, then the conveyance to the class as a whole is rendered void.
Hints:
3. gift to open class conditioned on members surviving to an age beyond 21-Bad/Void
4. Shifting executory interests ex. “to A so long as farm then if not to B” =Void bc there is
no certainty if A will or will not keep as a farm. A has FSA now
5. If void check was is stricken from the conveyance. “so long as” might get you fee
simple determinable possibility of reverter in O and “but if ceases to be farm” then
might get fee simple absolute bc the grammar doesn’t make sense and O gets
nothing.
6. If it is a will then it becomes effective at O’s death (measure from date of death not
creation of the will) Life in beings are those that are alive at the time of O’s death.
7. “widower” “to A for life, then widow for life, and on the death of A’s widow to such as
As descendants then living” widow has contingent remainder bc we don’t know who
 she is. And if have children later=bad “to a for life, then widow for life, on death of
widow to a’s children.=Good bc children have vested remainder compared to above
contingent remainder.
 Example 29: “O transfer in trust to A for life, then to A’s first child to reach 21”
 A = validating life - any children or person period, will reach 21 within 21 years
after death
 Life begins at conception
 Child is in being if it is born alive
 Satisfies RAP - knows it will vest or fail within 21 year
 Example 30: O transfers in trust to A for life, then to A’s first child to reach 25”
 A = Can't prove any child will take within 21 years of death
 Can't use A's life to prove A's child will take
 Violates RAP
 A has a LE
 O has reversion
o Littler - 2019 KS Case
 O-->A (640 acres) O retains a defeasible term mineral interest (DTMI), "for so long
thereafter as oil and gas may be produced there from."
 A has a FI held by the grantee that will or will not vest after DTMI
 Has to be a Springing EI when there is no longer oil and gas produced
 Subject to RAP
 Can't prove it will vest within 21 years so the court struck the language
 O wants RAP
 A wants RAP to not be applied
o Perpetuity Reform Movement
 Cy Pres: Immediate Reformation
 Avoids bad things that may happen in the future
 courts can fix before the problem arises
 Focus on intent of grantor
 Can they reform the conveyance so it doesn't break RAP
 Wait and see: Wait until there is a contingent interest that vests
 Evaluate under common law = valid? If not:
 Can interest be valid if it vested/failed within 21 years
 If future interest would fail under RAP, it could still be good under wait and see
 USRAP: Uniform statutory
 If the conveyance hasn't vested within 90 years, it is invalid
 This is the most you can do
 90 year vesting period
 KS combines Wait & See and USRAP
 Restatement 3rd
 Two generations limit
 Focuses on termination, not vesting
 Getting rid of remainders
 Focuses on time to termination instead of vesting
 No more than 2 generations younger than grantor
 Qualified Abolition of the Rule and Rise of the Perpetual Trust
 Perpetual trust - banks were able to keep money in state
 Solution to RAP = Trusts (Perpetual Trust)
o Class Gifts -
 Can be vested as a Future Interest but not necessarily under RAP
 RAP - all or nothing rule
 Under RAP -
 a class gift is not vested in any member until the interests of all
members have vested
 Class must be closed - every member identified and in existence and
 All conditions satisfied within perpetuities period
 Class Closing Rule (aka Rule of Convenience)
 The possibility that more members may be added to a class at a remote
point in the future creates a potential violation of RAP for some class
gifts
 Class will close as soon as one member of the class is entitled to
immediate possession
 Can close before it naturally closes
 If closes before natural end, no person born after the closing can share
in the gift
 Can close before parents die
 Does not terminate existing class members
 
o Co-ownership
1.Joint Tenancy (JT)
 "O -->A and B in joint tenancy"
 If conveyance is not clear, courts will read as tenants in common
 Regarded as a single owner - Undivided separate interests
 Most common among spouses and children
 Joint tenants have equal shares
 Creditors can go after assets of joint tenancy
 Before death: either tenant
 After death: decedents interest gone, can't go after other
tenant
 Mortgage doesn’t always cause severance unless they all signed. Harms
v. Sprague
 Title theory Jurisdiction-severs JT bank get title as soon as mortgage
executed
 Lien theory Jurisdiction-doesn’t sever JT, title only passes if/when
mortgager defaults.
 Do have right of survivorship
 Survivor takes over the whole share upon death of on JT
 When you die, your interest is extinguished
 Cant convey your interest through a will
 Unities must have all 4 to be a joint tenancy:
 Time: it must be acquired or vest at the same time
 Title: Must acquire title by same conveyance or by adverse possession
 Can never arise by intestate succession
 Time and Title usually go hand in hand
 Interest: can't have different interest
  Equal, undivided shares (depending on jurisdiction --> many
moving away from concept)
 Quantity
 Possession: All tenants have a right to possess as a whole
 Any 1 tenant can unilaterally grant interest to a third party,
severing interest and converting to a TIC (termination)
 Judicial partition - if tenants cannot solve issues then land will
be physically portioned or sold and proceeds split between JTs
 Avoids Probate
 Termination example: where part joint tenancy and part tenants in common
 Ex 1: O --> A, B, and C
 A -->X
 When A conveys her share to X it severs JT because it
breaks time and title
 But not between B & C (necessarily)
 X = TIC; BC = 2/3 JT
 B & C remains 2/3 rights of survivorship
 Ex 2: O --> A, B, and C as JT
 A-->B; B-->A - to create a TIC
 C - is converted to TIC because you cannot be a JT by itself
 Riddle v. Harmon - joint tenant can sever JT by conveying to
themselves)
 Wife learns that if she dies, everything goes to husband because property is
owned in joint tenancy, Wife makes deed, wife to wife (tenancy in common),
Wife makes will to dispose of property
 Husband sues the estate (defendant is wife's estate)
 Holding: Wife’s estate wins - A joint tenant can unilaterally sever the joint
tenancy and create a tenancy in common by conveying his/her interest in the
property to herself as a tenant in common
 Did away with necessity of a Straw person - a JT should be able to
accomplish directly what he or she could otherwise achieve indirectly by
use of legal fictions
 Interest is then alienable
 Murder severs JT and automatically converts to a TIC with the murderer
losing his share
 Die intestate - Heirs get property as TIC
 Harms v. Sprague - cant sever by a lien on the property
 Brothers owned in joint tenancy, one brother unaware the other brother
mortgages property
 Sprague (mortgage owner) counterclaims - JT was broken by mortgage -
converted to tenants in common
 A mortgage on the JT property was not a lien after the death of the JT and did
not sever the four unities of JT, thus the surviving tenant became the sole owner
of the property
 Other brother has right of survivorship
 A lien placed on one joint tenant’s interest in jointly held property does not
destroy a joint tenancy. While a joint tenancy may be destroyed when one of
the tenants conveys his interest in the property to another.
 Tenancy by the Entirety (TbtE)
 can only be created by husband and wife (and conveyed between
husband and wife)
 All four unities as JT + marriage
 Neither souse can destroy other spouse's interest
 No unilateral partition
 Creditors can only go after if debt is both spouses-usually
 Interests not divisible
 Joint/Equal shares are a pillar of TbtE
 Courts have honored unequal shares though in jurisdictions with TbtE
still
 Right of Survivorship-one spouse dies and it goes to the other
 Divorce terminates marriage, thus don't have all 5 unities and
automatically converts to a TIC
 Tenancy in Common
 Ex - “O --> A and B”
 Separate interests but those interests are undivided-can transfer by will
or intestate succession
 Co-equal right to enjoy property
 Do not have to be equal
 No right of survivorship - property interest can be conveyed via Will
 You can convey these separately so heirs can inherit
 If tenants in common cannot work out problems alone, you can bring an
action for a partition
 Court can divide the property how it chooses and split proceeds
 Rights and duties of Co-tenants in Common
 Each tenant can possess and enjoy as a whole
 Co-tenant does not owe rent to other if the other is not enjoying it
voluntarily - May have to pay if ousted (Spiller v. Mackereth)
 Rent from a 3rd party is divided into fair share to owners based on %
owned.
 Adverse possession will not work unless one tenant is an ouster
 Each tenant is responsible for taxes, mortgage, etc
 Each tenant is responsible for repars based on % share owned
 No affirmative right for improvements.
 Co-tenant must not commit waste
 One party may not be able to recover from other parties responsible for
maintenance such as (lawn care, utilities, insurance-get these from
estate?)
 Spiller v. Mackreth -
 Co-owners as TIC have property they lease, then one co-owner moves in
and the other co-owner requests rent
 Absent an agreement (contract) there is no duty to pay
 Ouster necessitating the payment of rent to non-occupying tenants
requires that the occupying tenant take action that prevents the use and
enjoyment of the property by the non-occupying cotenants
 Contracts can negate property law
  A cotenant in common, having an undivided right to the entire property,
does not owe rent to his cotenant unless he agrees to, or unless he has
effected the ouster of his cotenant.
 Right to exclude is a fundamental property right including co-owners
right to exclude
 Landlord-Tenant Law
o 4 Leasehold Interests:
1. Term of Years -
a. An estate that lasts for a fixed period, just have to know the termination
date (ie. 6 months from now, 1 year from now, if longer than a year check
statute of frauds)
a. Almost always in writing
b. CL - no limit on number of years
c. State Statutes - limit time limits sometimes
d. Sometimes adjustments in rent
e. Can terminate by clause in the agreement
f. Must be for a fixed number of years
 Or terminate upon some earlier condition or event
 Ex: Timber lease in ME
g. No notice of termination is necessary to bring the estate to an end
because it is clear when the lease is going to end
h. Commercial leases - most prevalent
2. Periodic Tenancy -
a. Is a lease for a period of some fixed duration that continues for
succeeding periods until either the landlord or tenant gives notice of
termination
 If no notice the law assumes the lease extends for another
period
b. Generally all of our leases - almost always governed by written leases
c. Can be created by implication
d. Continues generally until notice of termination
e. If you don't give notice of termination, re-ups for a period (usually a
month)
f. CL - for a yearly lease, must give 6 months' notice
 General rule for non-yearlong leases - period of time of reup is
the notice required
 Ex: Month to month - a full months' notice is required
 Not most only give a full month's notice
b. Death of landlord/tenant has no effect on the duration
c. Notice benefits the landlord so he can find new tenant
 Tenancy at Will - least formal
a. no fixed period and endures so long as both landlord and tenant desire
a. Not always in writing
b. Ends when one party terminates it; or
c. Terminates when someone dies
d. Less common than it used to be
e. Requires a period of notice of termination - usually 30 days
 Tenancy at sufferance - Holdovers
 a. When a tenant remains in possession (holds over) after termination of
tenancy
b. Holdover tenant not treated as a trespasser
 Depending on jurisdiction - term of years/periodic tenancy
 Policy in favor of tenant
 Two Options
 Eviction - have to follow rules
 Consent (creation of a new tenancy)
 Ex: Accepting Rent
b. Many jurisdictions have legislation dealing with Holdovers but that
legislation widely varies
 Duties, Rights and Remedies (Especially Regarding the Condition of the
Leased Premises)
 The LL has an incentive to neglect everyday repairs because the
costs of neglect are borne primarily by tenants
 Tenants have an incentive to neglect maintenance, especially
towards the end of the term, because the costs of neglect will soon shift to the LL
 LLs Duties; Tenant's Rights and Remedies -
a. Tenant took premises "as is" and LL were under no obligation to warrant
their fitness
b. Two different disputes arise between LL and Tenants
 The tenant might wish to vacate, or to stay but pay less rent (or
no rent)
 The tenant might be injured by allegedly defective premises and
claim damages against the LL in tort action
 Tenant duties
1. Tenant duty to repair-keep premises in reasonable good repair
2. Must not commit waste
3. Don’t remove fixtures/kind of like waste
4. Duty to pay rent
a. If failed to pay rent and still in possession landlord can (Berg v. Wiley)
 Move to evict through judicial proceeding
 Continue relationship and sue for back rent
 Landlord must not engage in self-help/change locks
b. If failed to pay rent and is NOT in possession landlord can: (Summer v
Kridel)
 Treat vacating premises as surrender and give up lease (get in
writing for SOF)
 Ignore the vacating - remember must attempt to litigate so bad
idea
 Relet the premises and hold old tenant liable for gap in rent
(Summer v. Kridel)
o Landlord Duties
1. Deliver possession of the premises (Hannan v Dusch)
2. Satisfy the covenant of quiet enjoyment (Village Commons v. Marion County
Prosecutor's Office)
a. Two ways landlord breaches covenant of quiet enjoyment
 Actually and wrongfully excluding tenant from premises
  Committing constructive conviction (3 elements to this)
 Substantial interference = not necessarily permanent
interference
 Notice - tenant must give landlord notice so he can
correct
 Goodbye or get out - tenant must vacate premises
within reasonable time
 Is landlord liable for bothersome conduct of
neighbors? (yes in 2 exceptions
i. Landlord has duty not to permit
nuisance on premises
ii. Landlord has duty to control common
areas
2. Satisfy the implied warranty of habitability (IWH) (only for residential not
commercial leases) (Hilder v St Peter)
a. Cannot waive this right in contract
b. If this is breached tenant has 4 options
 Move out/terminate lease
 Repair and deduct expenses from future rent
 Reduce rent equal to fair share (must hold extra rent in escrow
to show good faith)
 Remain and sue landlord for damages
2. Has duty to refrain from breaching the doctrine of retaliatory eviction.
a. If tenant reports landlord for reporting, landlord cannot punish tenant.
This is so tenants will be whistleblowers on bad landlords and not get evicted
a. Inapplicable if default on rent
b. Court going to presume retaliatory eviction
 LL punishing T
 LL can rebut it
 Delivery of Possession
 Hannan v. Dusch
a. Lessee brought suit to recover damages from lessor. After signing a
lease, the lessee discovered former tenants, which the lessor refused to evict,
occupied the property -
 Holdover tenants not leaving and LL not evicting
b. American rule - the lessee has a right to possession, but absent an
explicit covenant, the lessor has no duty to deliver possession
 Puts burden on T
 LL friendly rule
c. Holding: Landlord wins, the holdover tenant is liable
d. An implied covenant to deliver actual possession of a premises does not
exist in real estate leases.
e. English Rule - Tenant Friendly (majority rule)[fix this issue w/ express
language]
 Implied covenant to give new tenant possession
 Lasts for only one day
 Puts heavy burden on the landlord
 Tenant has right to possession, but not landlords duty
  Landlord - give legal title, no rule for landlord's duty
 Landlord not responsible for wrongdoer, new tenant has
remedies against old tenant
f. LL is under no obligation to kick out holdover
 PUT IT IN THE LEASE
 Don't make/let courts decide
 Liquidated damages
 Subleases and Assignments:
 Sublease: tenant transfers part of her lease to another (Ex - 3
months of a year-long lease)
 Assignment: tenant transfers ALL of her lease to
another (remainder of lease)
 Ernst v. Conditt - Sublease of go-kart track Case
a. LL approved modification to a lease that allowed T to sublease the
premises and left the lessee personally liable
b. T ceased paying rent and LL sued to determine whether the instrument
was a sublease or assignment
c. The words used in an instrument are not conclusive, rather it is the
intentions of the parties that government whether the instrument is a sublease
or assignment
d. One who takes an assignment of a leasehold interest is responsible to
the lessor under the terms of the lease.
 If conveyance transfer < remainder of lease term = sublease
 If conveyance transfers the rest of the lease = assignment
 Under old and new rule everything was conveyed and thus =
assignment
 R intended to give all, thus assignment
e. Holding – Assignment because no rights of re-entry by the old tenant
 Common Law: If document transfers lease for the entire
remainder of his term - assignment, regardless of form/intention
 Modern Law: look to the intent of the parties and the
circumstances
b. Assignment or Sublease?
 Jaber - Old Rule
 If there is an instruction that transfers estate for
remainder of term, then there is an assignment
 If only for a period, not the rest of the
remaining term, then it is a sub-lease
 City of Nashville - New Rule
 Follow intention of party
b. Rule: If a lease is silent as to a tenant’s ability to transfer its leasehold
interest, then the tenant may freely assign or sublease its interest and obtain all
profits from the assignment or sublease.
 The Tenant who Defaults:
 Berg v. Wiley - Restaurant renovation Case
a. Tenant has a restaurant, landlord wants it closed to do renovations
 b. Plaintiff sues for wrongful eviction and asks for damages because
landlord changed the locks when the T was out (under the idea it was
'peaceably')
c. The only lawful means to dispossess a tenant who has not abandoned
or voluntarily surrendered, but who claims possession and rights adverse to
those claimed by landlord is by resort to judicial process
 Wrongful eviction:
 Common law: Allows self help
 Tenant has to be in wrongful possession
i. Landlord must be entitled to possession
 Landlords means must be peaceable
 Modern Rule: only way to evict T is
through a judicial process - no self-help is allowed, use courts
 Resort to judicial process
 The Tenant who as Abandoned Possession
  Sommer v. Kridel - Kid signing 2 year lease and not being able
to pay to move in Case.
a. Two year lease, student has lease, ends engagement but can't afford the
lease and never moves in
 Landlord doesn't try to find anyone else to live in apartment -
other tenants even inquired (No mitigation)
b. Landlord sues for all 2 years-worth of rent
c. Holding: mitigation would have been easy because there were
perspective tenants
 Landlord has duty to mitigate damages when he seeks to
recover rents due from a defaulting tenant.
 Mitigation - App Court
 Old view (Property law)
 No duty to mitigate from old cases
 Primarily a property relationship
 T steps into position of LL --> LL conveyed rights
to property for 2 years
i. LL giving up right to control property for
2 years
 New View (Contract Law)
 Duty to Mitigate
 Use contract as a weapon (against bad actions)
 Initial burden on LL that they exercised
reasonable diligence to re-let premises
 Implied Duties and Covenants
 Court reading into LL/T relationships because of power differentials
 LL less incentive to upkeep premises
 T as lease term approaches is less inclined to upkeep
 Covenant = promise
 Implied covenant is not expressly stated
 Included by courts because part of structure of relationship
 Intended without saying it
 Court can look at two different ways
 a. Implied in Facts
 What do parties intend
b. Implied in Law
 In resolving disputes - look at duties LL owes T
 Court start to see Implied Covenant of Habitability
o Landlord's Remedies and Security Devices -
A. Back Rent
B. Collect on damages not covered by security deposit
C. Terminate lease and evict
D. Remaining Rent
A. Rent and Damages -
 Landlord may terminate and lease and recover possession
 Anticipatory Breach - remedy available via statute
 In the case of abandonment repudiation is clear cut, and anticipatory breach will
apply if the jurisdiction extends that contract doctrine to leases
B. Security Devices -
 LLs protecting themselves in the event of a tenant's default
 Security Deposits - to protect the LL in the event a tenant defaults on rent,
damages the premises, or otherwise breaches the lease
 Reformed heavily via statutes - heavy contract implications
 Typical provisions:
 Limit s on the amount of deposit (ex: two months' rent)
 One or two months' worth of rent
 If in violation of law --> T does not have to
comply
 Deposits create a trust relationship
 Must be placed in a trust or escrow account
 Not to be comingled with other funds
 Tenant's claim comes before that of other creditors
 Must pay interest on deposit to T
 Must submit an itemized list of deductions
 Other Techniques -
 Payment might be characterized as "consideration" or a "bonus" for
executing the lease
 So long as there is no provision for return of the payment upon
termination of lease
 Designating payment as "advance rent" has been more successful
 "Liquidated damages" - unenforceable penalty
 Rent Acceleration 0 a provision that upon tenant's default, rent for the
entire term becomes payable
 Accepted in most jurisdictions
 If rent is accelerated, the LL cannot also take possession as well
A. Implied Covenant of Quiet Enjoyment:
 Village Commons v. Marion County Prosecutor's Office - Water/Mold in office
space and not cleaning it up Case
 Office space leased by MCPO was inundated with water and ended up
causing mold and left them unable to use part of their leased office space
  Commercial Lease - landlord must maintain the premises and if he
doesn’t the only option is to sue.
 One sided remedies within lease terms
 Half way through the lease, tenants vacate “wrongful eviction”
 Landlord breached implied covenant of quiet enjoyment – right to use,
possession, occupancy
 Tenant doesn’t have to pay rent
 Actual Eviction - tenant is deprived of occupancy
 Constructive Eviction - landlord doesn't intend to oust, but deprives of
beneficial enjoyment
 A tenant who has been wrongfully evicted may abandon the premises
and stop paying rent, even if the exclusive-remedy provision provides that the
tenant may not terminate the lease or withhold rent if the landlord breached.
 Did LL evict T?
 Constructive by not remedying water/mold
 Implied eviction because place is unusable
 Constructive Eviction -
 Conditions are so bad to breach covenant of quiet enjoyment (interferes
with tenant)
 Justify tenant vacating
 Leaves reasonable amount of time (tenant)
 After constructive eviction: tenant can terminate and stop paying
 Can be risk for tenant to pursue, especially without notice
 Actual Eviction -
 T unable to occupy space
 Implied covenant - not expressly in lease but still red into contract
 If LL deprives T of rights --> blocked from use and thus no rents
 Implied Warranty of Habitability
 Hilder v. St. Peter - 1984
 Apartment owned by St. Peters was in such bad shape it was
endangering the Ts living there. St. Peters argued that the Hilders knew of the
premises conditions before they moved in so they are not liable.
 Oral month-to-month lease
 Violation of implied warrant of habitability (IWOH)
 LL answers
 Constructive Eviction (CE)
 Conditions so bad breaching covenant
 Constructive Eviction - No longer exists
 T does not have to vacate to justify withholding
rent
 Conditions so bad it justifies leaving
 T has to leave
 Doctrine of Habitability -
 Just because T knew of risks is duty to make premises habitable and T
cannot waive implied warranty
 All residential rentals include an implied warranty of habitability, which
cannot be waived or disclaimed.
 Nuisance
1. Substantial Invasion of Property Rights; and
2. _
A. Intentional and Unreasonable, that is knowledgeable of consequences
B. Unintentional result of negligent/dangerous actively/reckless
1. One should use one's own property in such a way as not to injure the property of
another
2. Public Nuisance - "is an unreasonable interference with right common to the general
public."
A. Extends private enjoyment of land
B. Unreasonableness - concept of standing
C. Private nuisance - must have a property interest
D. Public nuisance - standing is more expansive
 Common law - anyone could sue with special injury (special injury has to
effect that group differently than the general public)
E. Must be substantial harm caused by intentional and unreasonable conduct or by
conduct that is negligent, reckless, or abnormally dangerous
F. "Coming to the Nuisance" - Moving into the vicinity does not completely bar
damages or injunctive relief, but it is a "relevant factor" in determining damages
 Need knowledge
 Can get creative on the injunction- judge can grant injunction to make
company move but at the expense of P
 Generally, the CA RE developer could bring a case, the Court can
consider it as a factor but it is not dispositive
 Spur - Outlier
 AZ statute saying need to mitigate flies and manure
 Feed lot grew a little bit, but the suburb grew a lot towards the
feedlot
 Court -
1. Injection - feedlot has to move on P's dime
 Has to indemnify for move
 More common remedy - force compliance with statute
 Options for recovery:
 Injunctive relief (abatement)
 Damages by defendant continue activity
 Neither
 Injunctive relief at cost of plaintiff
 Private Nuisance
A. Elements: To be actionable, nuisance must be interference with use and
enjoyment of land that is
 Substantial; and
 Intentional and unreasonable knowledge of the consequences,
or
 Unintentional result of negligence, reckless, ultra-hazardous or
abnormally dangerous
B. Morgan v. High Penn Oil Co.
 Plaintiff - owner of a lovely trailer park
 Defendant - oil refinery that was releasing noxious gas
 Private nuisance - invasion of quiet enjoyment of land
  Reasonable under the circumstances
 Rule: a person who intentionally creates or maintains a private nuisance
is liable for the resulting injury to others regardless of the degree of care or skill
exercised by him to avoid such injury
 Intentional - purpose or knowledge with substantial circumstances even
if prevention attempts
 Must show actual damages to property values (not just the stigma)
 Lateral and subjacent support - must maintain the natural support to
neighboring land
 A party who intentionally and unreasonably commits a non-trespassory
invasion of another’s land can be held liable for private nuisance, even if the
party was not negligent.
C. Smith v. KS Gas Service -
 Pumping gas into salt caverns
 Need to show actual damages
 Light and Air - Ampathearers Case
 Needs to be an actual, physical invasion
 Plain old ugly - Junkyards
 Not a nuisance but if it is burning tires, maybe a nuisance
 Lateral and Subjacent Support -
 Lateral support - refers to that provided to one piece of land by the
parcels of land surrounding it
 Under natural conditions - so no right to support structures on
land
 No liability, absent negligence, if subsidence of improved or
unimproved land is shown to have been caused by withdrawal of fluids
 Can be waived or expressly expanded
 Subjacent Support - refers to support from underneath as opposed to
the sides
 Issues arise when one person owns surface rights and another
owns mineral rights
 Tracks similarly to that of Lateral support
 Boomer v Atlantic cement - Cement factory that had to pay permanent
damages to neighboring landowners Case
 P looking for injunction to stop the cement factory from spewing dust
and cement onto property
 Where a nuisance has been found and where there has been
any substantial damage shown by the party complaining an injunction will
be granted. Permanent damages, rather than an injunction, are
appropriate when the damages resulting from a nuisance are significantly
less than the economic benefit derived from the party causing the harm.
1. Permanent Damages - better than injections
 Can enjoin D until perm damages are paid
 Effectively a servitude on property imposed by
nuisance
 Future owners give u right to bring
action
  Permanent damagers = price of
servitude
o Private Land Restrictions
 Servitudes -
 Usually binding on successors
 Easements -
 Affirmative - Right to do something on someone's land
 Negative
 Appurtenant (negative and affirmative)
 In Gross - Doesn't bind successors (Negative and affirmative)
B. Covenants - Promises
 Real Covenants -
 Equitable Servitudes
2. Easements
A. Steps:
A. Determine if it is affirmative or negative easement
B. Determine what type of easement it is/how it was created. (express, necessity,
implied, prescription/adverse possession, created by relying on words (estoppel))
C. Determine if it is transferrable by defining if appurtenant to land, held in gross,
seller reserves access (reservation), grant
D. Determine if the easement was terminated.
 Step 1:
 Affirmative easement - owner of easement has power
to do something on someone else's land
 Negative easement - give owner the right to prevent
someone else from doing something on the land (must be in writing)
(usually involving light, air, support, and streamwater)
 Servient Tenement – serving the land (burden)
 Dominant Tenement – one who owns the easement
(benefit)
 Step 2:
 Types of Easements:
 Express easements – affirmatively created in writing in
compliance with the statute of frauds
 Easement by Necessity – created when property is
virtually useless without the benefit of an easement across neighboring
property; favors nonuse; policy- if you sell something you must sell
necessary parts; construe against drafter; endures as long as necessary;
limited to nature and extend of necessity
1. Necessity
 Majority Rule: Strict Necessity
 Minority Rule: Reasonable Necessity
2. Both the dominant and servient estates must have been
under common ownership in the past
3. Necessity must have arisen at the time that the
property was severed and the two estates were created
 Easement by Implication – implying an easement from prior
existing use on the servient estate by the earlier owner
 1. Land must be undivided (merger destroys easement)
(unity of ownership)
2. With apparent (open and obvious), existing, and
continuing use
3. Severance of title
4. Reasonable necessity for use at time of severance for
dominant’s use and enjoyment (lack of alternatives)
 Implied reservation (strict Necessity)
 Implied Grant (Reasonable Necessity)
1. an easement holder is entitled to expand or modify the
easement when doing so is reasonably necessary to the normal use
and development of the dominant tenement.
 Easement by Prescription - limited to exact use that
created the easement (no expansion)
1. Adverse Possession
 Actual
 Not necessary to be exclusive - public
beach access
 Open
 Continuous for the statutory period
 Hostile
 To prevent: give permission or block
use
1. Prescriptive or permissive use?
 Similar to adverse possession
2. Interrupting the prescriptive period
 The owner of land is presumed to consent or
acquiesce in the use (if he allows someone to continue to use
for 20+ years)
3. Exclusivity of use
 Exclusivity for a prescriptive easement is not as
strictly construed as for adverse possession
 The user can acquire a prescriptive easement
even though the easement is also used by the servient owner
4. Public prescriptive easements
 The landowner must be put on notice, by the
kind and extent of use, that an adverse right is being claimed
by the general public, not by individuals
 Can trespassing ripen into easement?
 Yes -
 Need actual notice of use by public
 Often sought by public recreation groups
 Beach access
 Martins Beach I, LLC v. Surfrider
Foundation - 2018
 CA --> public has access to the low
tidal coastline
 Khosla puts lock o road to beach
  Khosla loses in CA and SCOTUS
refused cert.
 
 
e. Easement by Estoppel – good faith, reasonable detrimental reliance on
permission by servient estate holder may create an easement by estoppel
to prevent unjust enrichment
 To prove easement by estoppel:
 Permission to use the property
 Detrimental reliance on that permission
f. Negative Easement – aka, restrictive covenant - Right of dominant owner
of stopping a servient owner from doing something on the serviant's land
 Must be in writing
 Typically only when:
 Blocking windows
 Interfering with air flow
 Removing building support
 Interfering with artificial stream flow
 Note also,
 Blocking views
 Solar easements
 Right of dominant owner to stop the servient owner from doing
something on servient land
 Blocking windows
 Interfering with Air flow
 Subjacent support
 Interfering with flow of water
 View easements - not really a thing
 Solar Easements -
 It depends
 CA --> requires solar panels on new construction
 A negative easement is the right of the dominant owner to stop the
servient owner from doing something on the servient land
 4 types of negative easements - the right to stop your neighbor
from:
 Blocking your windows
 Interfering with air flowing to your land in a defined channel
 Removing the support of your building (usually by excavating
or removing supporting wall)
 Interfering with the flow of water in an artificial stream
 Negative easements were not as easy to discover as affirmative
easements
 Whether negative obligations should be analyzed as easements or
as covenants
 Cannot be conceptualized as the subject of a grant
 American courts often refer to equitable servitudes as negative
easements
 
  Step 3:
 Easement by grant – affirmative easement gives another the right to use
the land for a specific purposes
 Easement by Reservation – creates when a grantor conveys land but
reserves an easement right in that land for his own use and benefit
i. Reservation - creation of new servitude not previously existing as
independent
ii. Exception - excludes some pre-existing servitude on the land
 Easements appurtenant – tied to that land (involves more than 1 parcel of
land); Automatically transferrable if: (Willard v. First Christ)
i. Parties so intended - but does not have to be mentioned in the
transfer
ii. Burdened Party Has notice
 Easements in gross – (usually only 1 parcel of land) grants to benefit a
particular person, not tied with the land
i. Not necessarily transferrable, IS transferrable if use for commercial
purposes
ii. Ex: person can swim in pond, company can use land for billboard
 Step 4:
 Ways to terminate an Easement:
 Estoppel - look to reasonable reliance and representation of parties. If
dominant allows servient to build something, then servient reasonably
relied on that consent to build.
 Necessity - easement expires as soon as necessity ends, unless express
grant
 Destruction of servient tenement
 Condemnation of servient tenement by govt eminent domain power
 
e. Release - in writing given by easement holder (most used). Expires at a
certain date or
f. Abandonment - must show physical action that they will not use the
easement again (ex build barrier, stopped maintaining road they were
supposed to)
g. Merger doctrine - one person owns both properties
h. Prescription - servient tenant adversely possess the easement (ex can
build fence so can’t cross which can terminate the easement)
v. Scope and effect
 Scope -
 If holder is only one using easement, they make the repairs, if both use
can split costs
 If owner later subdivides parcel-can keep easement is doesn’t overly
burden servient estate
 Change in use is ok if reasonable, can widen for cars
 If no location specified, then servient tenant selects location
 Brown v. Voss - 1986. Building a new house on the middle of the parcel line
and messing with easement Case.
 Facts:
 1952 - Easement
  B against V from blocking easement
 V doesn't want/have easement with lot C
 B's not being unreasonable
 Would be landlocked if injunction is granted
 No real hardship to the Vs
 Scope -
 CL Rule - Can't extend easement (misuse of easement) and
entitled to injection
 Wash Supreme Court --> reinstate easement
 If an easement is appurtenant to a particular parcel of land, any
extension thereof to other parcels is a misuse of the easement.
 Cases -
 Willard v. First Church of Christ - Church parking lot easement Case
 McGuigan --> Peterson with an easement
 Easement that the lot must be used for church parking
 Peterson --> Willard without the easement before Peterson had actual
title
 Willard brings quiet title, no burden for property because it wasn’t in the
deed
 Appurtenant - transferrable (church wants - if they sell, still have
easement)
 In gross - not transferrable (willard wants - doesn't go with sell)
 Court: Can McGuigan reserve easement to third party who is a stranger to
the title?
 McGuigan reserves interest, conveys easement to church
 The court's primary objective in construing a conveyance is to try to
give effect to the intent of the grantor. In general, therefore, grants
are to be interpreted in the same way as other contracts and not
according to rigid feudal standards. A grantor may reserve an
interest in the land to be granted, for use by a third party.
 Reservation vs. Exception
 Reservation creates a new servitude
 Exception does not create a new servitude
 Excludes from the grant some servitude
 Don't focus on
 If appertinate Easement - runs with the land
 If church ever sells or folds easement goes with the property
 If in Gross - FSD lanugage
 Probably what it is
 Van Sandt v. Royster - Sewage in basement Case
 Plaintiff discovered his basement was flooded with sewage and brought
an action to enjoin the defendant from using and maintaining the
underground sewer that ran across the lots.
 Deed expressly says "no easements" (*based on prior existence)
 An easement is implied to protect the probable expectations of the
grantor and grantee that a prior existing use will continue after the
transfer. Thus, where the grantee is aware of a reasonably necessary use
 of the grantee’s property for the comfortable enjoyment of the grantor’s
property and easement by implication is created
 Implied easement – strict necessity (plumbing) [apparently the sewer was
apparent too..]
 Undivided land with Apparent, Existing, & Continuous Use
 Severance of land with prior use
 Reasonable necessity at the time of severance
 Van Sandt arguing that it was not apparent
 Othen v. Rosier - Levy takes out roadway to neighboring land Case.
 P claims a roadway easement across two tracts of land owned by D
 The D constructed a levy which made the lane so muddy that is was
impassable and deprived P of access to and from his farm
 O - easement by necessity through R1 & R2 owned by R
 Trial court - orders R to make land passable
 App court - reverses
 Supreme Court - Is there some sort of easement created by some
other implication of law?
 Easement by necessity (EBN) - 3 elements
 Unity of ownership at some point of time in the past
 Necessity - means what it says - private property
 Necessity at the time of severance
 EBN - R & O
 Hill owned it all at one point
 No unity because they were divided at different times
 Necessity --> O didn't have EBN because that access wasn't
there in 1986
 Hill in 1896 could have found some other way to Belt
Line Road
 No easement by necessity -
 Strict necessity - really need it
 Justification - courts don't like crating property interests
and taking away property interests
 Endures only so long as it is necessary
 Easement by Prescription
 R gave permission, thus license
 No Easement by prescription
 O's options
 Purchase easement
 Convince City to condemn private property for road
 In order to find an implied easement, you must look back to the time of
the common owner and determine whether the easement was a necessity
and not a mere convenience at the time of the severance of the dominant
and servient estate
o Licenses -
 Licenses: is an oral or written permission given by the occupant of land allowing the
licensee to do some act that otherwise would be a trespass
  Licenses – freely revocable unless coupled with an interest (remainder – enter
and inspect for waste) or detrimental reliance (money spent in furtherance of
licenses – ticket)
 Granting permission for a duration of time
 Permission to enter someone else's property (express or implied)
 May be created without consideration or a writing
a. A license is created when there is an oral attempt to create an easement
or written attempt fails
b. Are not generally assignable/transferrable if its real property
c. Sale of property terminates the license
d. Usually ends upon death of licensor
 REVOCABLE
 Giving permission for a duration of time
 Implied License -
a. Ex: Plumbers and other people who work on houses
 Exceptions to Licenses Revocability -
a. License coupled with Interest (more than just license)
 Ex: Timber Ex:
 If it is more than just tickets (license)
b. Estoppel - Reliance on license
 Prohibition based on things done in past
 If person who is granting license, or parties, both understand
license to be irrevocable
 Revocable, as opposed to easements which are not, except:
a. License coupled with an interest
 Irrevocable for length of the profit (reliance + investment)
b. License irrevocable due to estoppel
 Estoppel: prohibition on taking a legal position contrary to what
you have made in past
 Forces consistency
 Holbrook v. Taylor - Steel cable over road to prevent passage Case.
 Holbrook sued to enforce a license by estoppel regarding a road he used for
ingress/egress.
 He also constructed a house at considerable expense and made repairs to the
road in question
 Defendant gave permission, plus got a royalty for road uses
 Trial - finds for defendant - irrevocable license
a. Easement by prescription (yes)
 Very similar to adverse possession
b. Irrevocable by estoppel (yes)
 Defendant invested in property by making improvements
 Plaintiff acquiesced and gave permission
 If you have a license, and licensee has made improvements and relied on
improvements, and licensor has express or tacit knowledge the license is
irrevocable
 Termination
 Release
a. Written release- parties agree to get rid of the land
 b. Must be in writing
 Own Terms (expiration)
a. Ends upon the expiration of a stated period
b. Example: after 3 years, goes away
 Defeasible Easements
a. An easement created to end upon the occurrence or some event expires
automatically if and when that stated event occurs.
 Merger
 Estoppel
a. If someone who owns an easement states or represents that he is going
to give up on the easement, and the servient owner relies on that
statement --> the easement can go away
 Abandon
 Lose by Condemnation
a. Assume you have an easement on your property. The government can
come in and condemn It for the public interest
b. Government owes you money
c. If the condemnation is not inconsistent with the easement's original
purpose, the easement may still remain
 Necessity
a. If the necessity of the easement goes away then the easement goes
away
 Prescription
 tenement of Prescription - Adverse Possession
a. If servient tenement prevents easement use, after a statutory period
the easement goes away.
 Marvin M. Brandt Revocable Trust v. United States - Railroad
abandoning easement Case
a. If a party abandons a right-of-way easement, the interest in the land
reverts to the party that owns the land underlying the right-of-way.
a. Convents and Servitudes
i. Covenants:
 Two Types:
 Real Covenants (Law recognized) -
 Antiquated
 Covenants in Equity (equitable servitudes)
 A promise made way back in time that becomes binding on the
owners now.
 After Tulk they are the equivalent of real covenants
 The remedy for violation is typically an injunction requiring the
defendant to comply with the terms of the promise.
 Elements:
 Intent - Is it clear?
 Notice - Actual or Constructive
 Touch and Concern - Does this promise to use or not use in a certain
way actually relate to the land
 Vertical Privity?
 Are they successors in title
  Benefit is the right to enforce
 Not required:
 Horizontal privity - only in real covenants
 Horizontal Privity
 Relationship between Tanner and Griggs
 The burden (easement/right/condition) is being promised by B to A to place a
burden on B for A's benefit
 Privity of Estate
 Later down the chain of title (Vertical Privity)
 C has vertical privity with B (traditional Promisor)
 D has a vertical privity with A
 Under the Common Law
 There must be vertical burden side and benefit side for the covenant
to run with the land (to be enforceable against later owners)
 If you have vertical privity
 D can enforce that benefit against C and vice versa
 It has to be the same estate
 If the estate varies from one conveyance to the next , you
would most likely lose the covenant
 How does the privity requirement varies?
 It depends on whether we're dealing with the burden side (servient side)
 The covenant is only enforceable if
 Privity of estate with original promissory
 Relationship between B & C
 Will not work with adverse possession
 The vertical side - A or D or after D
 Can be enforceable in 2 situations
 Either - it is the same estate or in an lesser
interest of that estate
 BA - cannot subdivide
 In writing (statute of frauds)
 Parties must intend covenant to run and bind successors (look at wording of
document)
 Subsequent purchasers must have notice
 Actual or constructive
 Covenant has to touch and concern the land-must affect parties legal relations as land
owners
 Privity
 Horizontal privity - privity between two original covenanting parties
 Some states require for covenants running with the land (generally no)
 Vertical privity - privity of estate
 Between one covenanting party and successor in interest (adverse
possessor is not vertical privity)
 Person after MUST acquire whole estate from person before him (prob
in fee simple)
 Servitudes -
  Equitable servitude (equity - injunctions) (benefits one party and burdens the
other)
Requirement for the Servitude to Run:
1. Parties must intend covenant to run
 Can be implied through mutual promises
2. Subsequent purchasers must have notice
 Actual or constructive
3. Covenant has to touch and concern the land
Not required:
1. Horizontal privity
a. Burdens land itself, not the estate
2. Writing is good but not always necessary
 Tulk v. Moxhy - Park being sold with covenant to not build on it Case.
 Park being sold with a covenant on it to prevent building on it.
 One who purchases property with knowledge of restrictive covenants
burdening the land must honor the covenant.
 Neponsit
 A covenant contained in a deed requiring the payment of money “touches
and concerns” the land if it substantially affects the rights of the parties as
landowners.
 Privity of estate will exist in substance if not in form between property
owners and an owners’ association when the association is acting as a
medium through which enjoyment of a common right is preserved.
 We have an exchange of promises
 Mutual promises
 The promisor (the homeowner) pays a fee to the promisee
(HO Ass'n) to enjoy the benefit of using the property
 It is intended to be binding
 Because there is horizontal privity ≠ vertical privity - HO association not an
owner
 Easements do not arise from promises
 Covenants are promises that are enforceable
 Reciprocal Negative Easements
 A restriction typically arising in subdivision development that enables its holder
to prevent an otherwise permissible use of another’s land, created when the
owner of related lots conveys portions of his land with restrictions intended to
benefit all of the lots as a whole. This is typically done in the context of
developing multiple similar lots in a subdivision with a common plan of
development, in which the developer may impose implied restrictions on the
properties even if the restrictive covenant is not explicitly recorded in the chain
of title. Also known as an implied restrictive negative easement or implied
reciprocal negative easement.
 Sanborn v. McLean - Building a gas station in a residential area Case.
 Want to build a gas station in a residential area but the initial conveyance
restricted it to residential purposes only.
 Need to have privity
 There is horizontal privity
  The covenant states that the right to enforce the benefit shall run to the
successors of the grantor
 Court finds an Implied Reciprocal Negative Easement (Or Implied
Easement)
 It runs with the land, is binding and there is notice
 McLean's need to tear down the gas station
 They are subject to an implied RNE
 Majority view
 The duty is on the buyer to find out about any restrictions
 Court is really concerned in McLean with people and notice
 McQuade v. Wilcox
 Should have looked at other deeds
 Deeds have been recorded with restrictions --> then this is
constructive notice
 The deeds supply the constructive notice
 Therefore a deed from another lot can supply constructive
notice
 Termination of Covenants -
 Similar to Easements
 Merge, Release, Sit on the right to enforce (Acquiescence), abandon,
condemnation, prescription
 But also has contract elements
 Unclean Hands
 Unclean hands - in which the court will refuse to enjoin a violation
of servitude that the plaintiff previously violated.
 Example: Homeowner Association in Denver - got to have the
garage door on all the houses to be the same color beige. Some guy
in the development paints his door Branco Orange with John
Elway's number on it resulting in him getting sued. He argues that
other people were violating during the holiday season and that the
homeowner association violated the covenant.
 If one party is violating the covenant and try to sue the other side
for the same thing, then you have unclean hands and the covenant
might go away
 Laches
 Which involves an unreasonable delay by the plaintiff to enforce a
servitude against the defendant causing prejudice to the defendant
 Laches does not extinguish the servitude, but only bars
enforcement
Abandonment
 These have to be inside the division (or restricted areas)
 SO what about outside the restricted areas?
 Western Land CO. v. Truskolaski
 Company builds a subdivision and puts a covenant limiting to residential
houses. After the town population explodes, they want to take the
covenant off to build commercial shops.
 Just because there is development that is not inside the restricted area
does not make the restrictive covenant unenforceable
  As long as the restrictive covenant still have value, then it is still
enforceable
 A zoning ordnance cannot override private restrictions
 (There is an exception but don't worry about this)
 Just because it has more commercial value, it does not override the
value in the homes
 Change Condition Doctrine
 Strictly enforced
 Must be within the restricted area
 For Easements - Change Conditions
 Same rule for easements as for covenants
 How long do covenants last?
 If there is no language to suggest or intent known by either party
 Then the duration is indeterminate
 It goes as long as the parties intend for it to go
II. Public Land Use Restrictions
a. Eminent Domain
 Governments 5th amendment right, binding by the 14th amend on the states.
Can take private property for public use in exchange for compensation.
 Explicit taking: govt gives notice and opportunity to be heard then permissible
and they pay you for it.
 Implicit/regulatory taking: landowner claims that a govt regulation has been a
taking. Here the regulation has compromised the property owners reasonable
investment.
 Test - to determine if it’s a taking:
1. Categorical taking
 Occurs when a regulation works on economic wipe out of
landowners investment
 Ex you buy ocean front land to develop, then govt says no
development (Lucas)
 You are in a category of ocean front landowners so will win
2. The reasonable return test
 If landowner left with reasonable return on investment then NO
taking-how full is the glass?
 Ex grand central case, place still has value and can still make
money
3. The diminution in value test
 Is opposite of reasonable return-how empty is the glass?
 Ex govt says no subsurface coal mining, coal co says too far cant
make money. Might win.
 Categorical Rules:
1. Permanent physical occupation of property is always a taking. Loretto
2. Regulation that is necessary to abate nuisance is never a taking.
Hadacheck
3. Regulations that wipe out all economic value are takings. Lucas
 Exception - unless such regulation "inhere in the title itself" --
that is, in the restrictions that "background principles" of the State's law
of property ad nuisance already place upon property ownership
 Remedies -
1. Compensation to land owner
2. Terminate the regulation and pay owner damages that occurred while
reg in place
3. Exaction-in exchange to build you have to provide something to the
govt.
 Ex. Can build condos if you provide new street lights and wider
roads
 Exactions must be reasonably related to the development
 Stages of Eminent Domain/Condemnation Proceedings -
1. Condemnor is the P (state of Ks)
2. Condemnee is the D (property owner)
 Deals with necessity and authority
 Valuation=appraise the property and agree to price
2. Inverse condemnation
3. P is the property owner
4. D is the govt
5. Remedies: If P wins-injunction or compensation
1. Typically try to buy property before condemnation proceedings begin
 Kelo v. City of New London - Little pink house & Pfizer company taking
Case.
1. A state’s use of eminent domain to condemn property from private
individuals and redistribute it to other private individuals constitutes a “public
use” under the Fifth Amendment if it is rationally related to a conceivable
public purpose.
2. There's no way the government can transfer private property, to a
private owner, for a private benefit (unconstitutional)
3. Public use - public purpose, no bright line rules, but includes for
common carriers
4. A taking by eminent domain will be upheld as long as it is “rationally
related to a conceivable public purpose” and “just compensation” is paid to
the owner. A valid public purpose can be found in a plan for economic
rejuvenation of an overall condemned community, even though some
individual properties within that community may not be blighted.
5. Kelo held that "public use" should be expansively read to include
"public benefit" from economic re-development. Kelo, however, merely sets
the federal Constitutional floor for takings.
6. The office park taking may be valid under a Kelo-type approach which
allows public economic benefit to suffice as evidence of "public use" through
additional tax revenue
7. A state’s use of eminent domain to condemn property from private
individuals and redistribute it to other private individuals constitutes a “public
use” under the Fifth Amendment if it is rationally related to a conceivable
public purpose.
 Public use now expanded to include economic benefits as part
of 'Public Use'
 Public use not evolved into "public purpose"
8. Actually the minority for most states
  Majority concurs with the dissent
 Many of the states passed acts or statutes that
effectively removed Kelo's ruling or narrowed the power of Kelo
 Kansas is one such state
b. Zoning -
 Nuisances action not an option
1. Property rights have more heft
 Zoning ordinances came into being
1. Keeping cities beautiful while keeping stockyards and factories and such
grouped together
2. What are you suing property for(zoning - type of use?)
 Industrial, commercial, residential, etc.
 Planning commission with some voting body (citizen vote)
 Remedies -
 Money remedies/ damages
 Inverse Condemnation Action --> P subject of government action, D =
government
 The claimant rather than the government institutes suit, alleging that a
taking has occurred and seeking recompense for it
1. Forced Purchase - rather than forced sale
 Claimant's objective
 Not commonplace until English in 1987.
 Held that if the government action results in a taking, then the
government must pay just compensation from the time the action first
worked the taking until the time the government rescinds or changes the
action in such a way that no taking occurs.
 Village of Euclid v. Ambler Realty - Zoning out a company's plan to use lots for a
factory Case.
 Municipal zoning regulations are constitutional, unless they are clearly
arbitrary and unreasonable, having no substantial relation to the public health,
safety, morals, or general welfare.
 Used zoning levels, restricted village owner
 zoning in general is constitutional unless arbitrary or unreasonable
 Ordinance violates property rights of plaintiff? Nope, prevents nuisance
 Zoning ordinances = appropriate use of police power
 Difference between zoning and taking
 Zoning= govt regulates use of the property but does not take
title
 Takings= govt takes property for a public use
 Zoning can prevent nuisance
 Zoning vs. Takings
 Zoning --> Government telling with you can do with property
 Regulatory Takings -->
 Zoning okay (not a taking)
 Where does the regulation become so burdensome
where the government goes too far and effectively takes property?
 Taking --> government taking title of property
 Eminent Domain --> Government taking
  Loretto v. Teleprompter Cable - Permanent Physical Occupation always a taking
Case
 A permanent physical occupation authorized by government is a taking
requiring the payment of just compensation without regard to the public
interests that it may serve or the fact that it only has a minimal economic
impact on the property owner.
 Law requiring a landlord to permit cable TV line to be run through
property
 Trespass is the first claim
 Taking is the second claim because it restricts property rights
 A permanent physical occupation requires payment of just
compensation because it destroys the property owner’s opportunity to exercise
three basic property rights:
1. the owner may no longer fully possess the property or exclude others
from possessing it;
2. the owner can no longer exclude others from using his or her property,
and cannot make any personal non-possessory uses of it; and
3. the owner cannot properly dispose of the property because a
permanent physical occupation typically strips the property of most or all of its
economic value.
 Penn Central Test:
 Economic Impact of Regulation
 Does it mess with the Investment Backed Expectations
(IBE) of the property?
 What is the character of the governmental action?
 Where there is interference in the form of a physical
invasion --> probably a taking
 If there is interference that arises from a public program
(I.e. a statute) that adjusts the economic burden and promoting the
public good
 A permanent physical occupation authorized by government is a taking
requiring the payment of just compensation without regard to the public
interests that it may serve or the fact that it only has a minimal economic
impact on the property owner. When the "character of the governmental
action," is a permanent physical occupation of property, the United States
Supreme Court has uniformly found a taking to the extent of the occupation,
without regard to whether the action achieves an important public benefit or
has only minimal economic impact on the owner.
 A permanent physical occupation is always a taking
  
c. Police Power Regulation
 Hadacheck v. Sebastian - Brick making factory in LA Case
 Hadacheck was convicted of violating ordinance banning brick
manufacturers within city limits
 Rule: under police power, a state may validly declare a particular
business to be a nuisance
 Although the police power of a state cannot be arbitrarily exercised, it
is to be remembered that it is one of the most essential powers of
 government, one that is the least limitable. It may, indeed, seem harsh in its
exercise, and usually is harsh on some individual. But the imperative necessity
for its existence precludes any limitation upon it when not exerted arbitrarily.
A vested interest cannot be asserted against it because of conditions once
obtaining. To so hold would preclude development and fix a city forever in its
primitive conditions.
 The state police power includes the power to regulate land use, and
must not be arbitrarily exercised.
 Court zoning ordinance is not a taking
 Even though value of property decreased, because of plaintiffs
long standing business
 Nuisance controls are never a taking [Curing a public
bad]
 Pennsylvania Coal Co v. Mahon (Diminution of Value) – conceptual severance
 Property owner brought suit to prevent Pennsylvania Coal Company
from mining under their property so as to remove supports and cause a
subsidence of the surface and their houses.
 The deeds conveyed only surface rights to the homeowners and
expressly reserved the right to remove the coal underneath as a separate
estate.
 The Kohler Act prohibited companies in Pennsylvania from mining of
coal in such a way as to cause the subsidence of homes and surfaces near
improved properties.
 Rule: Limitations on the use of land through the police power have
limits and will be considered a taking under the eminent domain power when
the diminution in value of the property reaches a certain magnitude, which
depends upon the particular facts.
 Whether a regulation goes too far will depend on the extent of
diminution
 If a regulation diminishes value so much, then eminent domain
and there must be a compensation (balancing test)
 Damage to coal company - balancing test
 Balancing test - homeowner with knowledge versus company
no longer profiting from coal
 Therefore, Kohler Act is unconstitutional
 If government is acting like an owner there is a taking
 Government went too far here - acted like an owner
 The general rule at least is, that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking. The
Pennsylvania Kohler Act cannot be sustained as an exercise of the police
power, so far as it affects the mining of coal under streets or cities in places
where the right to mine such coal has been reserved.
 While the use of property may be regulated, overregulation will be
considered a taking.
 Conceptual severance - effect of regulation looks better if you have
mineral estate, surface estate, or air estate because you are using 100% of the
estate
 Without severance, the taking is only of half the property
  Increases the diminution of value
 Helps review general property Examples
 Unsevered estate
 Kohler Act --> only effected mineral estate so when
thinking of Homes Diminution of Value test have to think of as
Conceptual Severance (instead of actually severed in PA coal case.)
 Homes --> 8/8 --> wind illegal 1/8--> 0/8 = 0
 Brandeis --> 1/1--> wind illegal 1/1--> 7/8
 Holmes:
 Considers the extent of the diminution of value in the property
as a result of the regulation
 Conducts a balancing test between the interests of the parties
 Recognizes the severed estate
 Considers "reiprocity of advantage" --where the regulation,
while limiting rights, also confers benefits. If there is ROA, then the
regulation likely does not "go too far"
 Brandeis (dissent)
 Consider the boundary between nuisance/harm to be abated
and property interests (just as Holmes does)
 More sensitive to public interest than Holmes
 Looks to the "parcel as a whole"
 Less patient with "reciprocity of advantage" because this is a
public issue
 
 Penn Central Transportation v. New York - interfering with distinct, investment back
expectations and building over Grand Central Station Case.
 Developers leasing Grand Central Station sought to build office building above
the station but the zoning ordinance for preservation of landmarks prevented
construction a landmark
 Economic impact of the regulation on the landowner
 Extent regulation interferes with distinct, investment - backed expectations
 Character of the government action (Loretto)
a. Physical taking
b. Adjusting benefits/burdens takings
 Holding - no conceptual severance (not allowed in New York)
a. Zoning is not discriminatory or unfair [spot zoning is unconstitutional]
b. The new regulation did not interfere with previous use as grand central
station
c. Still transfer airspace/set back as un-maximized expansion
 An ordinance restricting a landmark owner from exploitation of certain property
interests was not invalid for failure to provide just compensation, where an
existing and reasonably profitable use of the building remained unaffected.
 Penn Central Test (factors):
a. Economic Impact of Regulation
 Does it mess with the Investment Backed Expectations (IBE) of the
property?
b. What is the character of the governmental action?
  Where there is interference in the form of a physical invasion -->
probably a taking
 If there is interference that arises from a public program (I.e. a
statute) that adjusts the economic burden and promoting the public
good
 Lucas v. South Carolina Costal Council (economic value – inhere in the title)
 Lucas purchases 2 lots to build beach homes; South Carolina enacts law barring
Lucas from building
 While property may be regulated to a certain extent, if regulation goes too far it
will be a taking
 Supreme Court Scalia –
a. “If you have a regulation that effectively knocks out all economic value,
there is a taking”
b. Hadacheck – Regulated to prevent a nuisance not regulating to further a
public benefit
c. The regulation is okay, not going to effect a taking, if the regulation limits
the use of the property in a way that the government could before
d. Before regulation if there was a limiting common law principal?
 If yes, regulation is okay, if no, regulation is not okay (must
Inhere in the title itself)
e. The first encompasses regulations that compel the property owner to
suffer a physical invasion of his property. In general (at least with regard
to permanent invasions), no matter how minute the intrusion, and no
matter how weighty the public purpose behind it, the Supreme Court of
the United States has required compensation. The second situation in
which the Supreme Court of the United States has found categorical
treatment appropriate is where regulation denies all economically
beneficial or productive use of land. 
 Dissent:
a. Still have important property rights even if you can't build
 I.E. The right to exclude or sell it to neighbors
 Other cases show that total wipe out does not always equal a taking
 Regulation done in the name of public good = good enough
 Channeling Brandeis and his idea of the public good
 Takings Recap:
 PA Coal - Diminution in value Rule - 1st Decision
 If regulation goes too far it will be recognized as a taking
 Hadacheck -
 Regulation claims to control a nuisance - is never a taking
 Penn Central -
 Investment backed expectations
 Lorretto -
 Permanent Physical Occupation = always a taking
 Lucas v. South Carolina Coastal Council -
 Regulations that wipe out all economic value = takings