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									Property Outline, Prof Hernandez, Spring 2001                                                                                      last updated: 4/29/01                                   1

WHAT IS PROPERTY AND HOW IS IT ACQUIRED .................................................................................................... 2
    BY DISCOVERY .................................................................................................................................................................... 2
    BY CAPTURE [WILD ANIMALS] ............................................................................................................................................ 3
    BY CREATION....................................................................................................................................................................... 5
    BY FIND ............................................................................................................................................................................... 9
ADVERSE POSSESSION ................................................................................................................................................... 11
    THEORY AND ELEMENTS .................................................................................................................................................... 11
    MECHANICS OF AP ............................................................................................................................................................. 12
    ADVERSE POSSESSION OF CHATTELS (PERSONAL PROPERTY)............................................................................................ 14
    CRITICAL PERSPECTIVES ON AP ......................................................................................................................................... 15
ACQUISITION BY GIFTS ................................................................................................................................................. 16
    3 OPTIONS FOR DELIVERY .................................................................................................................................................. 16
    GIFTS OF PERSONAL PROPERTY.......................................................................................................................................... 16
    GIFTS OF REAL PROPERTY.................................................................................................................................................. 17
ESTATES IN LAND ............................................................................................................................................................ 19
    FEE SIMPLE AND FEE TAIL (PRESENT INTERESTS) .............................................................................................................. 19
    LIFE ESTATE AND DEFEASIBLE ESTATES ............................................................................................................................ 20
    FUTURE INTERESTS ............................................................................................................................................................ 21
    EXAMPLES:......................................................................................................................................................................... 22
    RULE AGAINST PERPETUITIES ........................................................................................................................................... 23
    CO-OWNERSHIP & MARITAL INTERESTS ............................................................................................................................ 24
LANDLORD & TENANT ................................................................................................................................................... 30
    TYPES OF LEASEHOLD ESTATES ......................................................................................................................................... 30
    SELECTION OF TENANTS..................................................................................................................................................... 31
    TENANT DEFAULT ISSUES .................................................................................................................................................. 32
    LANDLORD & TENANT DUTIES .......................................................................................................................................... 34
    AFFORDABLE HOUSING ...................................................................................................................................................... 37
    LOW-INCOME HOUSING DISCRIMINATION .......................................................................................................................... 38
NUISANCE ........................................................................................................................................................................... 40
    JUDICIAL LAND-USE CONTROLS: THE LAW OF NUISANCE ................................................................................................. 40
    REMEDIES........................................................................................................................................................................... 41
    RIGHT TO CONTROL THE USE OF OTHERS .......................................................................................................................... 43
SERVITUDES ...................................................................................................................................................................... 44
    TYPES OF SERVITUDES ....................................................................................................................................................... 44
    SCOPE OF COVENANTS ....................................................................................................................................................... 45
    SERVITUDES & RACIAL APARTHEID ................................................................................................................................... 46
ZONING................................................................................................................................................................................ 47
    LEGISLATIVE LAND-USE CONTROLS: ZONING INTRO......................................................................................................... 47
    NON-CONFORMING USE ..................................................................................................................................................... 48
    EXPANDING THE SCOPE OF ZONING CONTROL ................................................................................................................... 50
    HOUSEHOLD COMPOSITION CONTROL................................................................................................................................ 51
TAKINGS ............................................................................................................................................................................. 52
    EMINENT DOMAIN .............................................................................................................................................................. 52
    THE TAKINGS DILEMMA..................................................................................................................................................... 54
Property Outline, Prof Hernandez, Spring 2001                                             last updated: 4/29/01                 2

What is Property and How Is it Acquired

Property – sets up a certain classification scheme.
    Refers not to things, materials or otherwise, but to rights or relationships among people with respect to
        things. It consists of a bundle of rights:
            o The right to posess
            o The right to use
            o The right to exclude
            o The right to transfer
    Big theories in property:
            o First occupancy theory – ―first-in-time, first in right‖
            o Labor theory (Locke) – one is entitled to the fruits of his or her labor
            o Personality theory – property right helps fufill one‘s idea of self/personhood
            o Utilitarian theory – men adhere to laws of property b/c it is in their common interest to do so
            o Critical legal studies – skeptical of law b/c humans inevitably inject their own opinions.
    Singer, Reliance Interest in Property (Anth) – Property as social relations instead of free market
        model. Look at people involved in dispute over property and their relationship to one another. Property
        rights  sense of security in the community.
            o Be on the look-out for ways when Singer‘s proposal resurfaces thru-out course.
            o U.S. Steel Plant closing in Youngstown, Ohio, 1982. 3,500 jobs @ issue, plants open since
                 1901 & 18. Workers offer to buy plants, Judge (6th Cir.) held U.S. Steel had no legal obligation
                 to sell. Could do whatever it wanted with the property.
            o Do Workers have a Property Right arising out of relationship with the company?
                      Judge discussed issue but decided other way because he saw Steel‘s prop int. as law and
                          worker‘s as morality.
            o Singer argues for looking @ reliance interest in property:
                      Property rights should encourage desirable economic change without unnecessary
                          social misery
                      Corporation as FS owner is dated: should look to industrial relations betw. and among
                          all who put labor into business.
                      Q: ―who has a right to say something about the use or disposition of property‖ NOT
            o Proper question is how to allocate power among the persons with interests in property


First-in-Time Rule
A fundamental property rule is that the first person to take possession of a thing owns it. A corollary of this rule is that a
prior possessor prevails over a subsequent possessor. These rules implement important social policies relating to
rewarding labor, protecting investment in resources, and encouraging people to bargain with each other rather than fight. It
is important to apply the first-in-time rule in several factual contexts to see its reach and its limitations. The two contexts in
which this rule is usually tests in property courses are ―wild animals‖ and ―finders.‖

    1. Johnson v. M‘Intosh (CB 3) (1823) (C.J. Marshall) – Conquest has vested title in US that is superior to
       the Indians’ title. First in time does not always dictate. Possession is context specific.
           a. Facts: Johnson purchased from Indians in 1773. In 1888, McIntosh purchased by grant from
               US, who had obtained it from VA. Issue: Is title by grant from discovering nation superior to
               title obtained by purchase from those whom the nation conquered?
           b. Held: No. Ct upheld idea of Doctrine of Discovery  Custom dictates discovery vests title
               in the discovering nation against all other powers of Europe. Extended to Indians, although
               Indians were given the right of occupancy.
                     i. Discovery gave preemtive right to extinguish Indian right of occupancy by (1) purchase
                        or (2) conquest.
Property Outline, Prof Hernandez, Spring 2001                                         last updated: 4/29/01              3

                  ii. Absolute title – two pp cannot own exclusively the same thing at the same time. Title
                      excludes all others not compatible with it.
          c. Opinion only justifies what is already a fait accompli of pushing Indians off land. By 1794,
              Indians expelled from land by military force and later by treaties.
    2. Why should anyone be obliged to respect claim of the first possessor?
          a. Labor Theory  if you improve the land it is yours, you have worked on it. Everyone owns
              her own body and own labor and when you use that to improve the land you have made an
              investment. Indians left the land unmarked. No sign of labor.
    3. Useful Property Ideas from Johnson:
          a. FIT does not always win.
          b. Transfer of prop has to come from proper authority. (Here, chain of title traces back to US Govt
              from England who got it from Indians by conquest)
          c. FIT, though not dispositive, does have some influence if it‘s from proper authority. (Conquest)
          d. Possession is context specific.

Robert Williams, The American Indian in Western Legal Thought (Anth 40 – 48) – Ties ideas of conquest to Norman-
derive royal prerogative rights. Natural law ideas influential. Native Americans not part of social   they are not
respected so don‘t need to recognize their land rights.
3 Theories of Indian land rights during American Revolution:
1. British Crown had rights of conquest over Indian land.
2. Charter of the colony governed.
3. Natural Law gave Indians the right to control the land they occupied. [This idea was denied by all white men w/
    common sense!]
 Native Americans are not part of the social contract. American legal theory says Indians had no natural rights in the
    lands. Marshall‘s decision in Johnson v. McIntosh recognized the Doctrine of Discovery as governing the frontier
    land-acquisition in the US. It was NOT based on ―law‖ in the Western legal tradition.
 Constitutional Convention of 1787 Congress given exclusive authority to regulate trade and commerce and make
    treaties with Indian Tribes. Power over Indians was unlimited in scope.
 Dec of Ind says they want to throw off the tyranny of govts, then how can new govt settle the Indians‘ land with such
    tyranny? ―The discourse of Natural Rights, which had energized and legitimated their resistance to Norman tyranny,
    was compromised so as not to include the American Indians.‖
 Johnson decision merely formalized these ideas that had already been governing US decisions w/ Indians for 40 years.
    Doctrine of Discovery sought to absolve the SC of any injustices arising from the Founders‘ denial of natural rights to
    the Indians.
 Doctrine confirmed the superior rights of European-derived nations to the lands occupied by ―infidels, heathens, and
    savages.‖ It was now part of American legal doctrine and a legitimate weapon for further American conquest.

One of the goals of property law is to promote the efficient capture of wild animals.  idea of labor theory
becomes of central importance.
    Capture – if wild animals are captured, they belong to their captor. The captor must exercise dominion
        and control over the animal. Mere pursuit is not enough. BUT mortal wounding and continued pursuit
        can provide the requisite amount of dominion and control.
    Constructive possession – everything on the land belongs to the landowner, whether he is aware of
        them or not.
    Custom – the law will uphold a local custom of trappings and capture even if the custom does not
        strictly follow the rules of capture and possession. This exception exists to promote trade in the capture
        of wild animals. (see Ghen v. Rich)
    Rule of capture is the way you establish adverse possession over subterranean rights if they have been
        severed from surface rights. If they haven‘t, you adversely possess subterranean as well as surface when
        you adversely possess the surface.
      Property Outline, Prof Hernandez, Spring 2001                                            last updated: 4/29/01                4

               1. Pierson v. Post, S.Ct. of NY (1805) (CB 19) – Must kill or mortally wound beast to prove ownership,
                   pursuit is not sufficient. (FIT is adapted and custom does not prevail bc does not promote the death of
                   wild beasts.)
                         a. Facts: Post was hunting a fox on the beach and Pierson saw that. Pierson shot the fox and
Both majority and              carried it off. Post claims his pursuit was a sign of industry and labor which makes him owner.
dissent reflect          b. Held: Must kill or mortally wound to prove ownership. This helps promote killing noxious
labor theory – need
to put in work b/f             animals. Pursuit is not enough. It‘s ambiguous, it would crowd the cts, be confusing for society,
capture.                       and require lawyers to resolve dispute as opposed to the hunters themselves.  clear standards
                               benefit jud‘l system and society at large.
                         c. Ratione Soli: ―By reason of the soil.‖ –title owner to land owns everything on property, even
                               wild animals that cross on that parcel. But only when the animal is on the land. If it walks off,
                               it‘s free game again.  Qualified/constructive ownership
                                     i. In Pierson, court characterizes beach as wasteland to sidestep ratione soli issue.
                         d. Using custom to decide case allows ct to avoid having to find case law to support.
                         e. FIT matters, but it‘s first to kill/maim not first to pursue! FIT as a fluid concept – used
                               differently by majority and dissent.
                         f. Dissent:
                                     i. Post was on open, public land, in pursuit and was about to shoot. Pierson was well-
                                         aware of the situation. (FIT of pursuit)
                                    ii. Should have asked sportsman, not philosophers or judges. Should have asked Diana,
                                         goddess of sport.  This rule will make people less likely to hunt does not help
                                         problem of killing noxious beasts.
               2. Ghen v. Rich, USDC, MA, (1881) (CB26) ―Possession‖ adapted to custom of whaling industry. Like
                   Pierson, mortal wounding is essential factor. Immediate possession is not crucial.
                         a. Facts: P shot whale w/ marked lance. Custom—shoot whale, it sinks and resurfaces a few days
                               later. Person who finds it notifies the authorities and gets a small cut. In this case, 3rd party Ellis
                               found it 17 miles away and put it up for auction. D bought it, sold the blubber and oil. D did not
                               know it belonged to P specifically, but could have known that it was shot by a bomb-lance,
                               something that is used in the whaling business.
                         b. Precedents:
                                     i. Taber v. Jenny: it belongs to the ship that killed and anchored it, even if later found by
    Both cases decided upon
    ground that prop had been
                                         someone else.
    acquired by first taker by      ii. Bartlett v. Budd: P killed, anchored, and flagged whale. Found by D w/o anchor or flag,
    actual possession and                but still belonged to P. Not sufficient that P has to get there before D cuts into the
                                   iii. Swift v. Gifford: Arctic whalers. D harpooned whale but it detached from ship. P
                                         pursued and captured whale. D arrived and claimed it. Found for D. The first iron made
                                         claim to it, regardless of whether or not it stayed in the whale.
                         c. No worry that this was not a policy in accord with other industries. It‘s specific to whaling and
                               necessary b.c no one would do it if the risk of losing the capture was so great. Also, the first
                               party did all that it could realistically do to make the capture. It‘s the nature of whaling.
               3. Why is ct more at ease in applying custom in Ghen than in Pierson? When do we apply custom?
                         a. Bc it‘s an industry (Ghen – whaling), not a sport.
                         b. Bc custom was the most that could have been done in the situation.
                         c. Custom will truly only determine outcome to the particular community and people involved.
                               That is, it will only apply to whaling industry. So, it potentially affects fewer people. (3rd
                               party/society is not affected.)
               4. Keeble v. Hickeringill, England, (1707) (CB 30) – Cannot maliciously interfere with trade bc it’s
                   necessary to society and to the individual’s livelihood. (This is NOT to say that competition is bad, but
                   must be fair competition that benefits society.) Consider trade v. sport in making this decision.
                         a. Facts: P hunted on own duck pond with decoys, at his own costs and it was lawful. D would
                               hide in bushes and fire off gun to scare the ducks away, so they would not be killed.
                         b. Held for hunter (P).
Property Outline, Prof Hernandez, Spring 2001                                 last updated: 4/29/01            5

                    i. Every person should be able to enjoy use of her land as she sees fit, as long as it‘s
                   ii. Capture of fowl in pursuit of trade is profitable and promotes economic gain for society.
            c. Interference by noncompetitor – If a person is in the process of entrapping animals, a competitor
               who also wants to capture the animals can interfere with the other person‘s activity and try to
               capture the animals. But a person who does not want to capture the animal cannot interfere.
               (Remember: society wants the animal caught.)

   1. Cheney Brothers v. Doris Silk Corp, US Appeals (1930) (CB 60) – In the absence of some recognized
      right at common law, or under the statutes…a man’s property is limited to the chattels which embody
      his invention. Others may imitate these at their pleasure.
           a. Facts: P manufactures silks. Put out each season, not knowing which will be successful. Makes
               it hard to secure a patent for successful ones and cannot just patent all of them bc too many and
               may not have enough originality to support a design.  P often left without patent protection. D
               copied one of the popular designs and undercut P’s profit.
           b. Held: for D. Fashion designers can copy each other‘s work.
                      i. P seeks only compensation for loss during the season, but ct cannot limit it. Too
                         difficult to determine. Issue for legis.
                     ii. Property is limited to the chattels that embody inventions. (Chattels = ―the thing which
                         you can take and hold)
                              1. CL views – Only get protection in the chattel that embodies the idea—the
                                  tangible object that can be held, the actual piece of paper. The idea itself
                                  remains in the public domain. CL FAVORS COPYING.
                   iii. Justified under Locke‘s Labor Theory?  the usurper labors by finding a way to make
                         the product at lower cost. Usurper might also be in good position to improve the
                         product. (Innovation!)
                    iv. If only allowed originator to have access to idea, then only protecting expression of
                         idea, not society‘s interest in having company continue inventing and producing. (Idea
                         v. expression of Idea) Protecting against monopoly.
                     v. This is why even legis copyright is limited to 17 years. So what incentives drive
                         entrepreneurs to keep inventing?
                              1. Lead time to grab market (can profit greatly during 17 years of lead time.) 
                                  first in time in market.
                              2. Consumer‘s perception of ―original‖ as being the best.
   2. Intl News Service v. AP (1918) (CB 62) – Ct protected AP against other news people stealing their info,
      until after the value of news had passed. Otherwise, no news people could stay in business. Justified bc
      if not protected society would not have access to news. There is no lead in time with news. Unlike
      fashion where there is great profit in small lead in.
           a. Getting news requires lots of labor. If we don‘t protect such information, no one incentivized to
               get the scoop.
           b. BALANCE  Promote efficient use of property v. desire to protect society from monopolies.
   3. Smith v. Chanel, Inc. (1968) (CB 63) – P sued bc Smith made rip-off of their perfume and advertised it
      as Chanel No. 5 generic. Held for D because P had no copyright.
           a. Some say it was service to public because offered it at lower prices. Competition is better for
               the consumers.
           b. Copier can state ―my product is the equivalent of ___.‖ Creates incentives for potential copiers.
   4. Right to publicity is a property right  owning your identity, the labor that goes into your
      image/persona. Commercial viability of identity = commercial potential to make money.
           a. Assignable during life and descendible during death
           b. Includes names, likeness and other aspects of one‘s identity (Vanna White robot)
           c. Rooted in the right of privacy. Why wasn‘t this persuasive to court in Moore? Look to see how
               right to exclude is amplified in Moore.
Property Outline, Prof Hernandez, Spring 2001                                 last updated: 4/29/01            6

    5. Intellectual property – catchall label for property created by exercising the mind. The term includes
       copyrights, patents, and trademarks, but it may also cover property in ideas or in a persona.
    6. Rights in body products – some body products have long been sold on the market. But recent advances
       in medical sicence have created an unprecedented dd for body products or body parts of other types.
    7. Moore v. Regents of the Univ of CA, S.Ct. of CA (1990) (CB 66) – Body parts cannot be converted.
           a. Facts: P had leukemia and was told it was life-threatening. Had to remove spleen and do
               follow-up. 7 years of testing and treatment. told it was necessary. P‘s cells were valuable and Ds
               made patent worth billions. P learned of it in a medical book. D sues claiming conversion
               (wrongful exercise of ownership rights over personal prop of another) and many other things.
           b. Held:
                     i. Breach of Fiduciary Duty and Lack of Informed Consent Doc had fiduciary duty to
                        inform patient.
                    ii. Conversion: P claims cells were his and taking them for research w/o permission was
                        theft.  body parts cannot be converted, P does not have cause of action.
           c. Reasons:
                     i. P had no interest in keeping his own cells. Did not expect to have prop rts in his cells.
                    ii. Public health issues. Human tissue, etc must be buried, pursuant to CA law.
                   iii. Patent was product of docs‘ ingenuity, not P‘s cells. Ds labored over it, not P. P could
                        not have made it. (Labor Theory)
                   iv. Three reasons why conversion liability should NOT be extended:
                             1. Against public policy (promote research and public health—can‘t allow people
                                 to keep their parts.)
                             2. Solution is up to legis
                             3. Tort of conversion is not necessary to protect patients‘ rights (that‘s what
                                 informed consent, etc is for.)
           d. Dissent:
                     i. P had right to do with his own tissue, whatever the Ds did with it.
                    ii. Ds exploited P for their own econ benefit. We hold the body to be sacred and Ds abused
                        it. Analogy to slavery, etc.
                   iii. Uniform Anatomical Gift Act – Very limited  can only prohibit sale of transport and
                        therapy organs. Gives P right to sell property and Ds capable of converting it.
                   iv. Non-disclosure Act is not sufficient to protect patients. Barriers to recovery—have to
                        show would have declined if had all info and that any reasonable person would have.
                        Also limits it to the treating physician, not others in attendance.
    8. Acquisition by creation  encourage entrepreneurship v. encourage innovation
           a. Patents – generally for 17 years
           b. Copyrights – author‘s lifetime + 50 years for your estate. EXCEPTION: Fair Use Doctrine, can
               quote book for academic reasons and good of public domain.
           c. Trademarks – words or labels that ID some tangible object (Golden Arches for McDonalds). If
               it becomes blurred or generic then McD could lose protection.
    9. Property Rights = Bundle of Sticks – one being absolute right to exclude. But to define ownership
       around right to exclude can be problematic.
           a. Jacque v. Steenberg Homes (1997) (CB 86) – Punitive damages may be imposed to deter
               intentional trespassers.
                     i. Facts: P was landowner; did not want D to cut across his land to deliver mobile home.
                        D did it anyway.
                    ii. Held: P must have remedy bc important for landowners to have faith in legal system or
                        they will take their own action. Also, great importance placed on one‘s private land.
                        Series of trespasses can even threaten ownership. Award of $1 in compensatory
                        damages and $100, 000 in punitive is affirmed.
           b. State v. Shack, S.Ct. NJ (1971) (CB 87) – Right to exclude must be balanced against the needs
               of the workers. Prop rights are relative.
Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01               7

                              i. Facts: Shack (D) entered Tedesco‘s property to give legal aid to migrant farm worker.
                                 D refused to depart upon Tedesco‘s demand and is prosecuted for trespass. D argues:
                                     1. First Amend allows entry to distribute info. In Marsh v. Alabama, ct held that
       Ct does not decide on
       either Constnal claim             the town was just like any other, even though it was privately owned.
       but still holds for D.        2. Supremacy Clause—state law of trespass conflicts with fed law that promotes
                                         aid to migrant workers.
                            ii. Held: for D. Property rights may not be exercised so as to endanger the well-being of
                                 others. Cong authorized aid to migrant workers, so private owner cannot interfere with
                                 those goals.
                           iii. Worker’s right to organize – under federal law, workers have a right to organize a
                                 union and unions have a right to communicate with workers on the employer‘s premises
                                 seeking their votes. To secure these rights, an employer housing migrant farm workers
                                 cannot exclude union organizer from coming on the property.

Margaret Jane Radin, Market-Inaleinability, (Anth) – whether People should be able to alienate their body parts. If not, why
market inalienability should be, can be justified. Why inalienability enhances individual‘s freedom.
    1. Market inalienability will protect all things important to personhood.
             1) Personhood has three aspects: freedom, identity and contextuality.
                  a. freedom: the power to choose for oneself.
                  b. Identity: integrity , continuity of the self-required for individuals.
                  c. Contextuality: self-constitution in relation to the environment of things and other people. relation to
                       the society. (the author focuses on the views that connections between the person and her
                       environment are integral to personhood)
             2) Problem of Universal commodification
                  a. Undermine personal identity by conceiving of personal attributes, relationships, and philosophical
                       and moral commitments as monetizable and alienable from the self.
                  b. Better view of personhood should understand many kinds of particulars-one‘s politics, work,
                       religion, family, love, sexuality…
             3) Protecting personhood.
                  a. to conceive of something personal as fungible assumes that the person and the attribute, right, or
                       thing, are separate. But there should not be dichotomy btn subject/object things.
                  b. To conceive of something personal as fungible assumes that persons cannot freely give of themselves
                       to others. But it is better view to conceive gift as expressions of the interrelationships between the
                       self and others. Should give up dichotomy and rely on our moral judgment.
    2. Then, how can you justify market inalienability?
             1) Prophylactic argument.
                  a. The risk of harm to the seller‘s personhood in cases in which coerced transactions are permitted
                       outweigh the harm that a ban would impose on would be sellers who are in fact uncoerced. It is better
                       to presume inalienability to prevent the risk.
                  b. it may be used to prevent poor people from selling their children, sexual service, or body parts.
             2) Assimilation to prohibition
                  a. Commodification of things is bad in itself, or because these things are not the same things that would
                       be available to people in nonmarket relationships leads to universal noncommodification.
             3) Domino theory(slippery slope)
                  a. For some things, the noncommodified version is morally preferable.
                  b. Commodified and noncommodified versions of some interactgions cannot coexist. So existence of
                       some commodifed sexual interactions will contaminate or infiltrate everyone‘s sexuality so that all
                       sexual relationships will become commodified.
             4) Counter argument of these theories.
                  a. Often Commodification is used to empower the poor b/c commodification of personhood will enable
                       needy group(mainly poor woman) to improve their powerless, oppressed condition, and improved
                       condition would benefit personhood.
             5) Counter to Counter: commodification will harm personhood by powerfully symbolizing, legitimating,
                  and enforcing class division and gender oppression.
             6) Dilema of arguments regarding commodification of personhood.
                  a. if we permit commodification, we may exacerbate the oppression for the poor(suppliers).
Property Outline, Prof Hernandez, Spring 2001                                           last updated: 4/29/01                8

                  b.   If we don‘t permit commodification, we force the poor to remain in circumstances that are worse
                       than becoming personhood commodity suppliers.
    3.   Application in specific circumstances.: Problems of sexuality and reproductive capacity.
            1) Market inalienability is justified for baby selling
                  a. b/c babies are not choosing for themselves that they are better off as commodities (unlike
                  b. Clear and simple. the baby selling is morally bad.
            2) Surrogate Mother:
                  a. demand of surrogate mother expresses a limited view of parent-child bonding.
                  b. Adoption is non-ideal, but better choice for now.
    4.   Conclusion:
            1) To the extent that we must not assimilate out conception of personhood to the market, market-
                  inalienability are justified.
            2) Market inalienability rests on the conception of human flourishing, which must evolve as we continue to
                  learn and debate.
            3) Market inalienability also must evolve as we continue to learn and debate

Barrad: Genetic Information and Property Theory,(Anth 599) – Ct should protect property interest in genetic information.
Argument for recognizing a property right in genetic information from theories of property justification.
     Natural Rights Theory.
        a. preposition: every person has property in his own body and the person‘s individuality, created by nature, is
            innate and cannot be separated from the person.
        b. Property is an extension of the concept of personal identity to relations between persons with respect to
        c. Thus, justifies the recognition of a property interest in an individual‘s genetic profile b/c such information is
            necessary for an individual‘s self-realization and self-identity.
        d. If the right of control over one‘s body or parts of it are fundamental right, then the natural law theory
            recognized a property right in the human body, including the body‘s genetic material.
        e. The courts have used natural rights theory in judicial analysis:
                   The justification of property from a natural right perspective rests on the expressed individuality of
                      the person. In turn, individuality requires that the person be able to control its expression, through
                      autonomy and self determination.
                   The individual autonomy and self-determination leads to two legal concept.
                           i.       Informed consent.
                                        (Moor v. Regents of the University of California: even though the court refused
                                            to find property right in an individual‘s body party, it found ―quasi-property ―
                                            right by upholding individual autonomy under informed consent doctrine)
                           ii. Propriety interest in identity(mainly discussed under privacy, publicity and property: Think
                               about Human Cannon Ball case)
                                        Propriety interest recognize the individual‘s property interest in his identity,
                                            name, voice and likeness.
                                        This notion provides a model for analyzing appropriation of genetic material as
                                            infringing on an attribute of identity.
                                        Characteristics of identity, such as one‘s voice or face, are protected elements of
                                            personality b/c there are distinctive, personal, and a palpable manifestation of
                                            identity. Thus, the appropriation of information encoded in one‘s DNA is more
                                            significant infringement of one‘s identity. The individual‘s genetic profile is
                                            even more innately an attribute of his identity than is his likeness of his voice.
 Labor Theory.
        a. strict Lockean theory suggest that the individual could not have a property interest in his genome because he
            did not create it.
        b. But. Under Labor theory, the property is an extension of individuality to the products of one‘s physical and
            mental labor.
        c. The individuality of the person also exists in the information encoded in his DNA. Genetic material provides
            the biological warehouse for storing the elements of individual identity.
        d. In Sum, labor theory does not justify property interest in genetic material as a consequence of an individual‘s
            labor, but rather as a necessary result of the initial theoretical assumption of property in the person.
 Social Utility Theory – Justify property right b/c property promotes the maximum fulfillment of human happiness.
Property Outline, Prof Hernandez, Spring 2001                                            last updated: 4/29/01                9

         a.  Protection of property interest maximizes social welfare, the individual‘s claim to the created object must be
             protected against all others who also may assert a claim to the object. Protects the property right only to the
             extent that the interests promote total social welfare.
                   Traditional Utility Theory: maximization of human happiness should govern the outcome of all
                       individual and societal choices. This view was reflected in Moore dissent: (denying protection of
                       property right in human body)
                   Economic Utility Theory:
                            i. justifies the protection of property interest as a means of creating incentives for the efficient
                                 use of resources. The goal of efficient is not to maximize social welfare, but the satisfaction
                                 of individual wants and desires as expressed by choices made in a voluntary market.
                            ii. Restraints on alienation may be desirable in order to keep certain resources from being
                                 controlled by people whose conduct cannot be effectively monitored. (ex. Gun Control,
                                 Genetic information)
                            iii. Thus it opposes unauthorized use of genetic information(Permission to cur hair does not
                                 automatically mean permission to have a genetic profile delineated)
   Conclusion: the court should respect individual autonomy and self-determination by encompassing the exclusive right
    of control over the use of genetic information.
   Only the person whose cells contain the genetic information should have the right to determine how that information
    will be used and to whom it should be disclosed.

Title of the finder is good against the whole world, but the true owner and prior possessors. Relativity of title 
rights that a person has to property compared to others.

Ultimate goal of finder‘s cases: (for the most part, finders win)
     benefit to society – create incentives for finder to return the stuff in case true owner shows up. Finder
       does not have to hide item.  chances that true owner is matched with lost item.

    1. Armory v. Delamirie, England (1722) (CB 100) – Finder has status second only to true owner.
          a. Facts: P is chimney sweeper‘s boy. Found jewel took it to D for appraisal and hock. P‘s
             apprentice removed stones, replaced with fakes and offered 3 and ½ pence. P refused and wtd
             jewels returned. D refused to return stones. P sues.
          b. Held: for P.
                   i. Finder does not have absolute rights against orig owner, but has prop rights against
                      everyone else.
                  ii. Master is responsible for apprentice‘s actions.
                 iii. Penalty is cost of the value of the fines jewel that will fit in the sockets, unless D returns
                      the orig stones.
                 iv. Finding is a status in itself! P had possession of stone b/f D  in relation to D, P was
                      first in time (altho not true owner.)
          c. Bailor – ―owner;‖ relinquishes possession but expects it back. Ex. chimney sweeper  leaves
             their item in someone else‘s possession, but does not intent to hand over title
          d. Bailee – has limited possession; must give back to bailor (owner). Ex. Jeweler – receives
             bailor‘s itemvalet parking, dry cleaner, etc

Object found in private home
Objects found inside a private home are usually awarded to the owner of the home. The homeowner has an intent to
exclude everyone and to admit persons only for specific limited purposes that do no include finding property. Also, the
homeowner ahs strong expectations that all objects inside the home – including those of which he is unaware – are ―his.‖

Owner not in possession
If the owner of the house has not moved into the house (has not made it his ―personal space‖), it has been held that the
owner of the house is not in constructive possession of articles therein of which he is unaware.
Property Outline, Prof Hernandez, Spring 2001                                           last updated: 4/29/01               10

    2. Hannah v. Peel, England (1945) (CB103) – If owner of property has never occupied his land, finder of
       property on this land has a superior title against landowner.
           a. Facts: Peel (D) bought Gwernhaylod in 1938, remained unoccupied until 10/39, when it was
                requisitioned to quarter soldiers for a few months. Again requisitioned in 7/40. D was paid 250
                £/year. P was soldier there. Found brooch and turned it over to police. No one claimed it and it
                was given to D (owner of house.) D sold it for 66£ and it was resold for 88£. No evidence that
                D knew brooch was in house. D offered P a reward, but P refused claiming property rights.
                       i. P – I am owner, apart from true owner.
                      ii. D – I am owner b/c on my property, even if I did not know it was there.
           b. Held: for P (finder).
                       i. no doubt brooch was lost in ordinary sense and probably for long time.
                      ii. D never occupied house and clearly did not know of its existence.
                     iii. P did the commendable thing by turning it over to police.
                     iv. P found it and is the owner, aside from orig owner.
    3. Bridges v. Hawkesworth (CB 105-106) – Finder, not owner of location, prevails if property is lost in a
       public place. P entered shop for business. When leaving, found parcel on floor. Opened it there; full of
       $. Ads to find owner, nothing. 3 years pass and P wants the $. D is owner of shop.
           a. Held: for P (finder.) Consider public v. private. It‘s agreed that it‘s lost, but major pt is
                WHERE it was lost.
                       i. P could have just as easily found money outside.
                      ii. They were not entrusted to D by the orig owner. They were merely left with D by P, for
                          if and when orig owner showed.
                     iii. Orig owner would not have had claim against D for the items.
                     iv. Public shop.
    4. South Staffordshire Water Co v. Sharman (1896) (CB 107) – Master-servant. Possessor of land is
       generally entitled, against the finder, to chattels found on the land. Sherman (employee) was cleaning
       pool on P‘s land and found 2 rings in mud at bottom. Did not give them to P & did not find orig owner.
           a. Held: for landowner (who is also employer here.) Employee is invited to conduct work, not to
                walk away with what he finds on the land.
                       i. Owner of private locus has possession of house and everything attached to it, even if he
                          doesn‘t know about it.  unconscious, constructive possession.
    5. Elwes v. Briggs Gas Co. (CB 108) – Object found under or imbedded in soil is awarded to owner of
       premises, not to finder. Land lease to gas go for 99 yrs w/ reservation to lessor of all mines and
       minerals. Lessees found prehistoric boat when digging. Lessor did not know about it when land was
       leased. If it was mineral then it belonged to Gas Co (D), but if chattel then it was P‘s (just as hse would).
           a. Held: for P/owner even though he was not aware of it. Boat was imbedded in land. Therefore,
                belongs to owner of land. (Also, since prehistoric boat, unlikely to ever find true owner.)
                       i. Found silver, gold, or money intentionally buried or concealed in the soil w/ the intent
                          of returning to claim it. English law gave it to crown. US generally rejects giving it to
                          state. Some give it to finder, others to land owner.
                      ii. Note: Treasure trove does not include objects buried with the dead, which do not belong
                          to finder.

Objects found in public places
In dealing with objects found in a public place, courts have generally resolved the issues by resorting to the ―lost-mislaid‖
Lost – property that the owner accidentally and causally lost. Goes to the finder.
Mislaid – property intentionally placed somewhere and then forgotten. Goes to the owner of the premises.
This distinction allows mislaid property to be retuned to the true owner. Since it is assumed that object was intentionally
placed where it is found, it is likely that the true owner will remember where she place it and will return to the shop to
claim it.
Property Outline, Prof Hernandez, Spring 2001                                               last updated: 4/29/01               11

    6. McAvoy v. Medina, MA (1866) (CB 110) – Finder only gains property rights if the item was LOST,
       not if merely misplaced. P found $ in D‘s barber shop. P found pocketbook on table, money inside. Told
       D to keep it and advertise for owner. D agreed. Subsequently, P made 3 demands for the $ and D only
       made claim on money on the 3rd time. Lower ct—for D/owner. Appealed. Parties agreed that item was
       mislaid, not lost.
           a. Held: for D (owner.) Purse placed on table by customer in D‘s shop, not lost. If never lost then
                P could not find and gain prop rights. Diff from Bridges case where $ was dropped on floor.
                     i. Distinction btw mislaid v. lost.
                            1. mislaid – give property to shopowner to return to true owner.
                            2. lost – can be entitled to finder if true owner never shows up.
                            3. problem would be to determine what is mislaid and what is lost. Might
                                 encourage people to make things that are mislaid, look lost. We don‘t want to
                                 tempt people that way.
    7. Modern law (by statute) has eliminated distinction btw mislaid/lost and public/private. By doing so,
       finder has better chance bc not confined to the two restrictions. Mod stats usually also req finder to go to
       police, lost and found, etc and turn in item and if true owner doesn‘t show then it belongs to finder. This
       promotes uniformity in that true owner knows where to look for item.
           a. CL requires finder to be in both public space and lost item for finder to win.

Adverse Possession

Adverse Possession: (1) As suit to quiet title, or (2) As defense to ejectment.
    Open and hostile possession lf land, under a claim of title, to the exclusion of the true owner, which if
       continued for statutory period, ripens to actual title.
    AP doesn‘t get true title until true owner tries to eject AP.
    Rewards active users of land. Protects interest of thid parties who relied upon appearance of ownership.

Rewarding those who act like owners.
If within a number of years specified in a statute of limitations, the owner of land does not take legal action to eject a
possessor who claims adversely to the owner, the owner is barred from bringing action.

     Definition: method of transferring property interests without the consent of the prior owner
     Effect: means of acquiring title to property by possessing in claim against owner until the statute of limitations runs
      until a new title is created in the adverse possessor; note that statute of limitations will not begin until the conditions of
      adverse possession have been met
 Use: typically used to litigate mistaken boundaries, quiet title action, or as an affirmative defense (note cases below are
      an aberration of the usual use of the rule)
 Rewards those who use land productively
 Honors expectations of long-time possessors
 Bars stale claims (i.e. claims arising after memory, witnesses can offer reliable testimony re: ownership)
The basic theory of adverse possession is simple: If, within the numbers of years specified in the state statue of limitations,
the owner of land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter
barred from bringing an action in ejectment. Once the owner is barred from suing in ejectment, the adverse possessor has
title to the land.
Effect of Adverse Possession
Adverse possession is a means of acquiring title to property by long, uninterrupted possession. The running of the statute
of limitations on the owner‘s action in ejectment not only bars the owner‘s claim to possession, it also extinguished the old
title of the owner and creates a new title by operation of law in the adverse possessor. The adverse possessor‘s right to
possession, heretofore good against all the world except the rightful owner, is now good against the rightful owner as well.
Once the adverse possessor has title, it can be transferred in the same manner as any other title to land. However, title
acquired by adverse possession cannot be recorded in the courthouse because it does not arise form a recordable document
but rather from operation of law. If the adverse possessor wishes to have his title and name as owner recorded in the
courthouse, he must file a quiet title action against the former owner barred by the statue of limitations.
   Property Outline, Prof Hernandez, Spring 2001                                     last updated: 4/29/01            12


   Test for Adverse Possession
   1. Possession must be actual. (Be on premises.)
   2. Possession must be exclusive, (including exclusion of true owner.)
   3. Adverse or hostile. (You‘re there with actions that assert yourself as sole owner. Not there with any intent
       or actions that might seem subservient to true owner.) Sort of like acquisition by conquest. Claim of
       title/claim of right. Consider ME (subjective) v. CT (objective) DOCTRINES!!!!!
   4. Continuous. (Doesn‘t mean you can never leave. Simply must use prop as true owner would. If it‘s summer
       home, then only have to possess it during the summer. Look at context.) TO INTERUPT, MUST FILE FOR
   5. Possession must be open and notorious. Can‘t be secretive. Way of putting true owner on notice. Does not
       require that there be actual notice, JUST CONSTRUCTIVE NOTICE. Forces people to be diligent about
       their property.
   Burden of proof lies on the person asserting adverse possione. Once OCEANA is proved, burden is shifted to
   true owner to disprove. Take a snapshot of the time possession takes place. Note: can get AP even if possession
   was taken by mistake.

   Prescriptive—gives right to use land but title remains in hands of owner.
   Adverse Possession—one acquires title or ownership, and exclusive possession of land formerly belonging to
   someone else.

   Van Valkenburgh v. Lutz, NY Appeals, 1952 (CB 120) – Difficult to obtain land by AP: Possessor must
   actually be on land, must believe it is his, and must enclose it or substantially improve it.
        Facts: 1912 Lutz buys two lots and clears a nearby lot to use as a traveled way. Build a structure on land
           for brother Charlie. Used part of land for veg garden. 1937 VVs arrive. 1947 VVs buy the vacant lot at
           auction, Lutz not given opportunity to purchase. Lutz asks for prescriptive right to use land, admits he
           knew property was not his.
        Held: For VV. Lutz was not adverse possessor bc there was no clear proof of occupation, (despite the
           garden, shed and use of land for nearly 30 years.)
        Dissent: Does not matter that Lutz knew prop was not his. He improved and relied on land. Claim was
           his intention to acquire and use prop as his own. (labor!)

         1. Manillo v. Gorski, SCNJ (1969) (CB 138) – (1) NOTORIOUS FACTOR Shift from constructive to
             actual notice. Tolling begins when owner has actual knowledge that encroachment has begun. (2)
             HOSTILITY  In accepting the CT doctrine ct says AP does not have to be hostile. (intent irrelevant)
                   a. Facts: 1946 D puts addition on house and it extends 15‖ onto P‘s property. P seeks to evict D
                        from the propety and D seeks title of land under as AP who has used land for >20 years. Two
                        issues  (1) State of mind for AP—look to CT. (2) Definition of open & notorious.
                   b. State of Mind – A FACTOR THAT SPEAKS TO HOSTILITY
                             i. French v. Pearce (Connecticut) Majority View – Objective (intent does not matter!!!)
                                    1. Act of possessing is assertion of title, regardless of state of mind.
State of mind:
 Objective – intent does           2. Criticism for awarding mistake. It‘s not done anywhere else. Why should it be
  NOT matter (CT, maj)                  rewarded here?
 Subjective – intent does          3. Pub pol – productive use of land
  matter (ME, min)                  4. Essentially, just look at action of encroacher; intent does not matter; still have
                                        to go thru AP test.
                            ii. Preble v. ME Cent. R. Co (Maine) Minority View – Subjective (intent matters!!!)
                                    1. Must intend to claim all land within boundary.
                                    2. Must take land not by mis info that its yours, but w/ intention to take & keep it.
Property Outline, Prof Hernandez, Spring 2001                                           last updated: 4/29/01              13

                           3. Criticism – rewards person who enters w/ premeditation & predesigned
                                hostility. Positions adverse possessor to lie.
          c. Open & Notorious  Only where true owner has knowledge is possession actually obvious.
          d. Remand to decide whether or not true owner had actual knowledge.
    2. Howard v. Kunto (1970) (CB 143) – Tacking allowed if successive AND occupants are in privity.
       Conceptual link btw your time on sol clock and prior trespassers‘ time.
          a. Facts: Kuntos in house for one year and learn that several neighbors have adjacent neighbor‘s
              deed. Howard seeks to get Kunto‘s deed. Kuntos, themselves, cannot say they are adverse
              possessors bc only on land for 1 year. Looks like Howard is trying to get Kunto‘s prop bc Kunto
              had beachfront and Howard did not.
          b. Held: for Kuntos (adverse possessors)
                   i. claim of AP is NOT defeated simply bc physical use of premise is limited to summer
                       occupancy AND
                  ii. (2) tacking of AP is permitted if the successive occupants are in privity, (voluntary
                       transfer with legal connection). Where deed does not describe any of the land which
                       was occupied, the actual transfer of possession is insufficient to establish privity.

Tacking – an AP may transfer rights/years of possession as AP to a subsequent AP. Same is true of true
owners. It exists to help those who come into land by purchase. Have to show good line of title. AP now used to
 Tacking by successive adverse possessors – To establish continuous possession for the statutory period, an adverse
    possessor can tack onto her own period of adverse possession any period of adverse possession by predecessors in
    interest. Thus, separate period of actual possession by those holding hostilely to the owner can be tacked together,
    provided there is privity of estate between the adverse possessors
   To tack onto a preceding possession, there must be privity of estate between the two possessors. Privity of estate in
    this context means that a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical

Color of Title---adverse possessor comes onto land and has some form of paper title. Later turns out it‘s
defective. Still have to prove elements of AP BUT if prove AP they may be able to lay claim to something more
than what she actually possesses. Can possess the entire piece of land.
Claim of Title---No paper claim and only gives AP to the amount that was actually possessed.

Claim of title:                                                Color of title:
You are only entitled                                          You are entitled to the entire
to the part of the land                                        land described in the defective
which you actually occupy.                                     writing even if you only occupy part.

Constructive Adverse Possession – Actual possession under color of title (in writing) of only a part of the land covered by
the defective writing (deed) is constructive possession of all that the writing describes. Activities relied upon to establish
AP reach not only to the part of the premises actually occupied, but the entire premises described in deed to the claimant.

Disabilities – must be true at time of A.Per‘s entry. Does not matter if new disability comes into play. Look to
time of entry. Often times give 10 yr buffer after disability is removed, or # of years for stat, whichever longer.
     When true owner is under age at time of entry of A.Per, then disability. If someone comes into
        possession as minor, guardian can be rep.
     Example: 21 year sol or 10 yr from rmval disability (at time of entry)  minority, unsound mind,
        imprisoned. O is owner, A enters 5/1/1972.
             o O insane 1972 – 1995. Dies 1995.  sol starts when AP enters so under traditional rule, AP is
                owner in 1972 + 21 yrs = 1993. But here, O is insane until 1995 so heir gets 10 years from 1995
                to kick AP off.  AP won‘t get title till 2005.
             o O dies intestate (w/o will) in 1990. H is 2 years old in 1990)
                      First moment A can get title is 1993 (H being 2 years old is irrelevant.)
                      Btw 1990 – 1993, H (thru guardian) has three years to try to kick A off property.
Property Outline, Prof Hernandez, Spring 2001                                           last updated: 4/29/01               14

Interest Not Affected by Adverse Possession
If a person has no cause of action, he is not barred by any statue of limitations running.
     a) Future interests: A future interest is a right to possession of the property in the future. The most common
          example is where O transfers land to B for life, and on B‘s death to C. B has a life estate, and C has a future
          interest called a remainder. Only the life tenant, B, has the right to possession while B is alive. Until B dies, C
          has no right to possession. Hence, the statute of limitations does not run against a remainder existing at the time
          of entry by the adverse possessor, A, because C, the holder of the remainder, has no right to eject A from
               a. Entry prior to O’s transfer: If A had entered before O created the remainder, the statute would begin
                    to run against O and his successors in interest, and A would acquire title after the statue of limitations.
                    Although C never had a change to evict A, C is barred because he is a successor in interest to O in whom
                    the cause of action originally arose.
     b) Future interests.
     O A for life, then to B. If entry occurs during A‘s possession, it does not affect B. BUT if entry occurred during O‘s
     possession it will affect B (and A).
Liens, easements, equitable servitudes.
 If the land is subject to outstanding liens, easements, or equitable servitude when the adverse possessor enters, any title
     acquired by the adverse possessor remains subject to such interests.
 The owner of the interests is not affected by adverse possession until she has a cause of action against the possessor.
Government land
 Except where statute provides otherwise, govt entity is exempt from operations of statutes of limitations.

Chattels make it difficult to be open & notorious  owner may not eve know immediately that it‘s gone.
   1. O‘Keeffe v. Snyder (1980) (CB 153) – Due Diligence Rule  sol does not run if true owner uses
        diligence to discover possessor of her property. Under CL  sol started at time of theft.
             a. Facts: 1976 – P claims D has her paintings that were stolen from NY Gallery in 1946. D claims
                he bought (from Frank) them and P‘s claims are past the 6 yr stat of limit. 1972 – Registered
                them stolen w/ Art Dealers Assn of Amer.1975 told traced them to Snyder (thru others).
             b. Discovery Rule – A cause of action will not accrue until the injured party discovers, or by
                exercise of reasonable diligence and intelligence should have discovered, facts which form the
                basis of a cause of action, (knew or should have known the A.Per had it.)
                      i. Shifts emphasis from conduct of possessor to conduct of owner. Did owner use due
   2. NY Rule (Demand and Refusal) – Statute of limitations does not begin to run on the owner of stolen
        goods until the owner knows who has the goods AND makes a demand for return of the goods that is
        rejected. If A.Per refuses then the stat of limitations begins to run. Done to deter theft.
             a. Puts burden of loss on the merchant – forces them to ask where painting comes from and to be
                more careful in acquiring only legitimate chattel.
             b. Accounts for difficulty in tracking down ownership changes.

Voidable v. Void Title
    General rule – seller can transfer no better title than he has. If seller does not own the objeect or does
       not lawfully represent the owern, buyer does not get the title. Rule has been mitigated to some extent by
       exceptions in favor of a bona fide purchaser in a few situations.
           o Voidable title – (UCC) seller w/ voidable title can transfer good title to a BFP. Rationale  true
               owner, rather than BFP, better able to prevent loss to BFP. Don‘t want to punish innocent/good-
               faith third party. (see Gilbert, p. 50)
                     Voidable title is one where the owner intends to pass the title but can void the
                        transaction b/c of fraud, misrepresentation, or durress.
    Void title – owner does not intend to pass title or has no capacity to do so.
           o Ex. title acquired by theft. A BFP from a thief takes no title. (CL)
Property Outline, Prof Hernandez, Spring 2001                                    last updated: 4/29/01           15

            o   UCC – BFP can acquire good title from thief (change from CL), if BFP has no knowledge of
                theft and thought thief could transfer good title, and paid for the good title.
                     To be a BFP, purchaser must have no actual notice of the seller‘s wrongful title nor any
                        inquiry notice.
                     Keeps chattel productive. Excludes pp who receive stuff as gifts.
                     Modifies CL but maintains threshold of CL that thief can‘t transfer good title.
                     BFP can also get good title from merchant, if it‘s smthg merchant would usually sell.
                     Thief can only get good title if satisfies all elements. BUT difficult to be open &
                        notorious when you‘re hiding a stolen object. Five factor AP test designed to discourage
                        thief from becoming AP.

Latches – defense for BFP. If you sit on your rights for an unexcused period of time and cause injury to BFP,
you can no longer exercise those rights. Similar to stat of limitations, but there is no specific time period.
Justifiable reliance by a BFP in the fact that a suit has not been brought.


Native American Graves Protection and Repatriation Act of 1990 (CB 167) –
    Obligates musem to return sacred objects to Native American tribes upon a request (like dd and
       refusal!) from some direct lineal descendant of person who owned the object OR from tribe that owned
       or controlled object.
    Very constrained ability to trigger the demand.
    Relationship to AP:
           o Only way musem can block the return upon dd and refusal is if it had voluntary consent from
                person of group with authority to sell. Then museum can say had consent/proper authority to
                alienate the object.

Helmholz, Adverse Possession and Subjective Intent (Anthology)
Thesis: Although the adverse possession is a simple test that only inquires about the possessor‘s physical
relationship to the land over a sufficient length of time, concerns about the subjective intent of the possessor has
played a significant role in determining whether or not the possessor may validly acquire title by the passage of
the statutory period.
     Cases show that a trespasser who knows that he is trespassing stands lower in the eyes of the law and is
         less likely to acquire title by adverse possession
     Judges have played a significant role in the development of a possessor‘s subjective intent
     Judges often mention a possessor‘s ―good faith‖ in successful adverse possession cases
     There is a common feeling that it is wrong to allow someone who has acted in bad faith to profit
     Judges and juries decide these cases and do take ―subjective factors‖ into account when these can be
         proved or inferred from the evidence

Sprankling, The Antiwilderness Bias in American Property Law (Anthology)
Examines the relationship between the privately owned wilderness land and American property law. A
nineteenth-century antiwilderness bias still influences modern property law, and the property law system tends
to resolve disputes by preferring wilderness destruction to wilderness preservation.
Thesis: Common law of property inherited English doctrines with an inherent antiwilderness bias. The law
tended to resolve use and title disputes in favor of the wilderness exploiter and against the wilderness nonuser.
      America wanted to stimulate the creation of productive land through the destruction of wilderness
      America also provided that good faith settler whose ownership claims proved unsuccessful could still
         recover compensation from the true owner for any improvements (this rationale went to the productive
         use of the land)
      Goal: to shift from wilderness destruction to wilderness preservation – law should tend to resolve
         disputes concerning wilderness land by favoring the preserver over the exploiter
Property Outline, Prof Hernandez, Spring 2001                                     last updated: 4/29/01            16

       Can do this by:
             o Creating a separate category of real property for wilderness land as opposed to developed land
             o Get Cts to favor preservation over destruction, apply doctrine that would compensate for bias
       Over time, judicial implementation would create a common law of wilderness preservation. The
        underlying orientation of the property law system would tend to favor preservation in resolving use and
        title disputes.  the law would take to the environmental realities of the 21st century.

Acquisition by Gifts

gift = intention (on part of donor) + delivery (reinforces intent) + acceptance (often assumed)

Donee can refuse to accept the gift. But acceptance is presumed if beneficial to donee.

A gift is a PRESENT voluntary transfer of property. If the transfer is to take place place in the future, then it is
unenforceable without consideration. There may be a present transfer of a FUTURE interest (Gruen painting
case). There is no requirement that the gift be of the entire interest in the property.

3 Options for Delivery
(a) actual
(b) constructive – item is too big to deliver so done by delivering means of access to object—keys to car, or
    some other way to relinquish dominion and control over the property. Very fact-specific.
(c) Symbolically – no means to access the object but represents the object—writing to convey gift

General rule – if object can be handed over, it must be. (so symbolic delivery and constructive delivery are not
permissible where ACTUAL delivery IS possible.)
    Reasons for Delivery Requirement:
            o Makes vivid and concrete to donor the significance of act. Tells donor it‘s irrevocable.
            o Act is evidence of a gift to the witnesses.
            o Delivery gives donee prima facie evidence of gift.
    Delivery is the most often litigated element.
    Alternative methods of delivery – donor must do an act that evinces an intent to be immediately bound.
        Several types of act are acceptable as substitutes for handing over.


Gift Inter Vivos – made during donor‘s life when donor is not under any threat of impending death.
     Transfer is irrevocable.
     If transfer is conditional, it cannot be revoked unless that condition is not met.

Gift Causa Mortis – Gift made in comtemplation of immediately approaching death.
     Revocable by donor anytime prior to death.
     AUTOMATICALLY revoked if donor does not die from the specific illness or condition that prompted
       the gifting.
     Revoked if donee dies before the donor.
     Can be substitute for a will.
     Greater danger in fraudulent claims since donor is dead and cannot speak.

Gift testamentary (given in will) – inherently revocable, i.e. person writing will can change gift at any time
while alive.
     Doesn‘t take effect until you are dead.
     Must follow statutory formalities  2 witnesses; must be in writing; person who writes will must sign
             o Designed to protect donor from fraud/coercion.
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Newman v. Bost, Supreme of NC, (1898) (CB 170) – Issue of dominion and control. Symbolic delivery is not
allowed. Constructive delivery is allowed ONLY when impractical to deliver actual possession.
    1. Facts: Plaintiff (Newman) is intestate‘s girlfriend/caregiver. On deathbed, in front of witness (Houston)
       Van Pelt told P that he wanted to give her everything in the house. Gave her keys to dresser, etc.
       Decedents are claiming rights. Insurance policy was in drawer of one of the bureaus. He always kept
       important papers there.
    2. Held: P gets the piano and furniture in her room bc they were given as inter vivos gifts. DOES NOT get
       insurance policy bc VP could have delivered that to her and did not.
            a.   Court makes it more difficult to give gifts: symbolic delivery of a gift is not effective. Constructive
                 delivery is allowed only when it is impractical to deliver actual possession. Decedent gave keys to much
                 of the furniture in the house to housekeeper/lover. In one of the pieces of furniture was an insurance
                 policy. Decedent was capable of manually delivering policy to housekeeper. Since neither actual or
                 constructive delivery, no gift of the insurance policy.

2 Competing Policy goals:            Modern Approach              land                           Traditional       land
1. Protect owners from being defrauded.
2. Promote free alienability of property.

                                                 owner                People                            Owner

Gruen v. Gruen, Appeals of NY (1986) (CB 178) – Party may give future interest in chattels as a gift, while
reserving life estate in himself.
    1. Facts: P‘s father told him he wanted to give him painting for 21st B-day, but was to hold onto it until he
        died. D is stepmother, she contends that the transfer of painting did not satisfy reqs of will. Trial held for
        P for $2,500,000 (value of painting and interest). Father was trying to avoid inheritance tax.
    2. Held: Held for P (son). Life estate = father. He keeps it til his death. Remainder = P had an interest that
        would come to be upon father‘s death.
             a. Donative Intent  Letters = intention to give painting. Fact that father kept it does not mean
                 that he did not intend for son to have it.
             b. As long as the evidence establishes an intent to make a present and irrevocable transfer of title
                 or the right of ownership, there is a present transfer of some interest and the gift is effective
             c. Delivery  Must be sufficient to divest donor of dominion and control over property.
                 Sufficient to avoid mistake by donors and fraudulent claims by donees. Delivery of the letters =
                 sufficient instruments of the gifts.
             d. Acceptanceconsidering the high value of the gift, we assume P accepts.

No way of actually delivering real property. Deed becomes of central importance. So focus is upon delivery of
the deed.

Functions of Recording System
1. Establishes system of public recording of land titles.
2. Preserves in a secure place important documents.
3. Protects purchaser from value and lien creditors against prior unrecorded interests.

**Under recording acts—subsequent bona fide purchaser is protected against prior unrecorded interests.
Property Outline, Prof Hernandez, Spring 2001                                 last updated: 4/29/01          18

Luthi v. Evans, SCKS, 1978 (CB 658) Mother Hubbard clause upheld as btw parties to the instrument that
contains it, but insufficient to give constructive notice to subsequent purchasers w/o actual notice of it.
   1. Facts: Owens sold interests in oil and gas leases located in Coffey County to Tours, Inc. Assignment
        listed a bunch of areas in the first paragraph. In second paragraph there was Mother Hubbard—gave
        general idea of land. Said all the land it owned in Coffey County, this would include Kufahl land.
        Owens then sold Kufahl land to Burris. Burris checked records and found nothing.
   2. Held: For Burris (Second Buyer). Mother Hubbards are allowed. Usually bc time is of the essence and
        specific info is not available. The assignment was a legal transfer, but if Mother Hubbard is used,
        subsequent purchaser must have actual knowledge of assignment.
   3. Legis intended that recorded instruments of conveyance should describe land with specificity so as to
        impart constructive notice to subsequent purchaser.

Four Kinds of Statutes for Recording:
1. Notice Jxsubsequent bona fide purchaser prevails over prior grantee who fails to record. (Even if
   subsequent does not record herself.) Subsequent purchaser wins if she has no actual or constructive notice of
   prior claim at the time of the conveyance. (BFP)
2. Period of Grace Jx---notice statute that gives the purchaser a certain time frame within which to go to
   recording office. So subsequent bona fide purchaser will only be able to prevail against earlier purchaser if
   the first person did not file within the grace period.
3. Race Jx – Does not care about question of notice, whether actual or constructive. Key: Who is the first
   person to record wins! DOES NOT HAVE TO BE BONA FIDE PURCHASER!!!
4. Race Notice Jx – in order to prevail subsequent bona fide purchaser must have (1) no notice (actual,
   constructive or symbolic) of prior conveyance of that parcel AND (2) must be the first to record.

**Difference btw Race Jx and Race Notice Jx is that the latter might have actual notice where subsequent buyer
would not prevail. (BFP)
**Under Race when nobody records, go to FIT.
**first person does not have to be a BFP, but if you‘re going to oust someone you have to be a BFP.
** For notice, grace, and race notice, purchaser must be a BFP!
Property Outline, Prof Hernandez, Spring 2001                                    last updated: 4/29/01           19

Estates in Land

Estatean interest in land that is or may become possessory. The interest is measured by some period of time.

                      Present (Freehold)                                         Future (Freehold)
1. Fee Simple ―To A and her heirs.‖                             1. Reversionfuture interest that remains in
(a) Absolute                                                        grantor when he grants a lesser estate than he
(b) Defeasiblepotential to last forever, but destroyed if          has.
    specified event occurs. Noteany freehold can be            2. Possibility of Reverterfuture interest that
    defeasible.                                                     remains in a grantor when he grants a fee
    (i)      fee simple determinable [possibility of                simple determinable. (Happens automatically)
             reverter]                                              ***Think fee simple/tail determinable.
    (ii)     fee simple on condition subsequent [right of       3. Right of Re-Entryfuture interest that remains
             re-entry]                                              in a grantor when he grants a fee simple subject
2. Fee tail ―To A and heirs of her body/issue.‖                     to condition subsequent. (Optional)
    NOTEThis is obsolete and should be regarded as                 *** Think fee simple/tail on condition
    a life estate if followed by subsequent parties in a            subsequent.
    problem.                                                    4. Remainder future interest created in a
(a) Endures so long as the descendants of the original              grantee that may become possessory upon the
    grantor are alive.                                              expiration of some preceding estate.
(b) Inheritable only by descendants of orig grantor.            (a) Vestedremainder not subject to a condition
(c) Tenant in fee tail cannot defeat the rights of her lineal       precedent. May be defeased by 3rd party.
    descendants.                                                (b) Contingent remainder subject to a condition
(d) Can be inherited only by the issue of the original              precedent.
    grantee.                                                    5. Executory Interestfuture interest in a grantee
3. Life estate                                                  (a) Springingdivests a future transferor of
(a) For life of granteeends upon grantee‘s death.                  interest.
(b) Pur autre vieendures for life of 3rd party.                (b) Shifting divests a preceding grantee of

Freeholdownership has possession attached to it. What kind of ownership depends on what kind of estate.
Nonfreeholdonly possession, no true ownership interest. (Rentor)



Fee Simple — potential of enduring foreverNo limitsmost complete extent of time. Desire to pass on
ability to own land for indefinite time. Absolute ownership interest in time. Death allows to pass on thru will
or intestate rules. At CLA and his heirs.

Inheritance of a Fee Simple
        Heirs—persons who survive the decedent and are designated as intestate successor under the state‘s
        statute of descent.
        Issue—(descendants) They take to the exclusion of all other kindred.
        Ancestors—by statute, parents usually take as heirs if the decedent leaves no issue.
         Collaterals—all persons related by blood to the decedent who are neither descendants nor ancestors.
        Escheat—person dies intestate w/o any heirs, real property went to overlord. (now to the state).

Fee Tail — estate that has potential of enduring forever, but will necessarily cease if and when the first fee
tail tenant has no lineal descendants to succeed him in possession.
Property Outline, Prof Hernandez, Spring 2001                                   last updated: 4/29/01           20

    Oto D and the heirs of her body.
   Life Estate----D is given rights to own land for her lifetime, but once she dies her ownership interests end.
    cannot pass prop to anyone else. At CL could not pass on property rights. D can sell life estate interests. P
    can only purchase what D has to sell. Lasts only for D‘s lifetime. (pur autre vie—thru the life of another.)
   Fee tail envisions continuation of life estates. (Sequence of life estates.) For the most part they have been
    abolished. Potentially indefinite bc passes on to lineal descendants. Ends with no more descendants. Then
    have reversion to O or someone in O‘s estate.
   Laughing Heirsthose who are so far related that they would not mourn your death. Typically cutoff from
    inheritance and it goes to the state.
   Escheatno heirs and goes to the state.
   Electway of fighting disinheritance. Available to spouses in US.


Defeasible---any estate can be created to be defeasible upon the happening of future event. Refer to termination
pt that is only preordained based on some stated event. Two examples (using fee simple) include the following:
1. Fee Simple/Tail Determinablefee simple estate ends automatically upon the occurrence of some
     specified event and reverts to original grantor of the estate. {durational languageso long as, while,
     during, until, unless} Think possibility of reverter.
2. Fee Simple on Condition Subsequentfee simple estate may end upon the occurrence of some specified
     event if the grantor elects to terminate and retake the estate. Provided that, on condition that, if, but if,
     however, provided, these words thought to communicate not automatic but rather the option that this might
     happen. {Conditional languageprovided that, on condition, but if, coupled w/ grantor‘s express right of
     re-entry} Think right of re-entry.

   Different from condition precedent which is viewed as preventing ownership in property until the
    condition is satisfied.
   K promises are similar but differ in the remedy.
   Personal use restrictionIt says you can have prop but you are the only person who can ever live there.
    But you can sell it, although it would be difficult bc who would want to buy it? For most part, they are void
    bc it makes land useless.

Life estate—natural termination point. Upon death, can either: (1) Remainder to some transferee or (2)
reversion to grantor.

Waste Laws Life tenant and remainder both have immediate prop interest in land. Remainder may not have
right to step onto land, but has say in how it‘s treated. Remainder has more than hope it‘s expectation that
something will be left to acquire. Prob with doctrine of waste—doesn‘t always deal with the relat btw life tenant
and remainder. Sometimes the doctrine hampers the intention of grantor. Maybe grantor wants life tenant use
prop to help pay the bills. But if restrictions may not be able to make income from prop. If want to sell, must get
consent of remainders.

The Life Estate (Illegal in England)

Alternativeequitable estate/trust. 3rd party manages it for the LT and remainder. Looks like life estate but
fiduciary maintains lifestyle of LT and preserving something for remainder. Fiduciary is given leeway to sell
and buy other prop to satisfy both. Must be impartial.

Adverse Possessor---enters 2001, 10 year stat, blackacre transfers to A for life, remainder to B. A.P there and
wants to know how long has to wait to get property. Ap can only have prop for lifetime of life tenant. When can
AP get pure title (fee simple absolute)? Duality—remainder person does not have possession so his cause of
action to eject AP does not start until remainder has possession. so AP may not finally lay claim to prop until 10
years AFTER remainder gets possession. We say for purposes of applying AP we say when A dies, but for
Property Outline, Prof Hernandez, Spring 2001                                 last updated: 4/29/01            21

pragmatic purposes, we allow remainder to file for ejection prior to possession. Based on idea of waste—LT
might not bother to eject AP. Waste looks at what‘s equitable for remainder too.

Objections to Restraints on Alienation:
1. Makes prop unmarketable
2. Perpetuates the concentration of wealth by making it impossible for the owner to sell property and consume
   the proceeds of the sale.
3. Restraints discourage improvement of land
4. prevent the owner‘s creditors from reaching the property

Restraints on alienation = disabling restraints = withholds from the grantee the power of transferring his
Forfeiture restraint = if grantee attempts to transfer his interest, it is forfeited to another person.
Promissory restraint = grantee promises not to transfer his interest. (Enforceable by K remedies of damages or
an injunction.


    1. Interests retained by transferor:
       (a) Reversion
       (b) Possibility of reverter
       (c) Right of entry (aka power of termination)

    2. Interests created in a transferee:
       (a) Vested remainder
       (b) contingent remainder
       (c) executory interestthink of it as a variant on the contingent remainder.

    3. Interests in the Transferor
       1. Reversion—the interest left in an owner when he carves out of his estate a lesser estate and does
           not provide who is to take the property when the lesser estate expires. May or may not be certain to
           become possessory (to grantor) in the future. THERE IS NO SUCH THING AS A POSSIBILITY
           OF REVERSION!! Some are just more certain than others.

        2. Possibility of Reverter—a future interest remaining in the transferor or his heirs when a fee simple
           determinable is created. (Fee simple determinableyou can have house as long as you use it as a
           school.) Grantor need take no action for estate to revert back if condition is broken.

        3. Right of entry—owner transfers an estate subject to condition subsequent and retains the power to
           cut short or terminate the estate. Grantor has to take action (sue) to get prop back.

1. Remainders—future interest that waits politely until the termination of the preceding possessory estate. Not
   required that it be certain of future possession.
       (a) Vested if:
               (i)       it is given to an ascertained person and
               (ii)      it is not subject to a condition precedent

        (b) Contingent if:
               (i)     It is given to an unascertained or unborn person, or
               (ii)    it is made contingent upon some event occurring other than the natural termination of
                       the preceding estates.

Why does it matter if whether a remainder is vested or contingent?
Property Outline, Prof Hernandez, Spring 2001                                      last updated: 4/29/01               22

        1. Vested remainder accelerates into possession whenever and however the preceding estate ends.
           Contingent cannot become possessory as long as it remains contingent.
        2. At CL, contingent remainder was not assignable during the remainderman‘s life and was therefore
           unreachable by creditors.
        3. At CL, contingent remainders were destroyed if they did not vest upon termination of the preceding
           life estate, vested remainders were not destructible in this manner.
        4. Contingent remainders are subject to Rule against Perpetuities, whereas vested remainders are not.

2. Executory Interests—future interest in a transferee that can take effect only by divesting another interest.
   Essential diff btw remainder and exec interests = diff btw taking possession as soon as the prior estate ends
   and divesting the prior estate.
       In order to become possessory, Executory interest must:
                (1) Divest or cut short some interest in another transferee (aka shifting executory interest), or
                (2) Divest the transferor in the future (aka springing executory interest).

             (a) Two Prohibitory Rules:
                 (b) No Shifting Interests—no future interest could be created in favor of a transferee if the
                     interest could operate to cut short a freehold estate
                 (c) No Springing Interests—no freehold estate could be created to spring up in the future.

―To A for life‖ = possessory life estate
―then to B and the heirs of her body‖ = remainder interest in fee tail (fee tail no longer exists so it‘s actually a
fee simple)

To A for life—possessory life estate
then to B for life—vested remainder interest in life estate
then to C and her heirs—C vested remainder interest in life estate, Heirs contingent remainder interest in fee

A for life
then to A‘s kids who reach 21 (B is A‘s kid and 17). ---B‘s interest is contingent, other kids are also contingent
bc they aren‘t born.

O  to A for life, then to B, but if C returns from the war then to C.
B = vested remainder condition subsequent
C = condition precedent. Something must happen before it will take away B‘s. Also known as executory
interest. Her interest comes into being bc she bumps B.

The Fertile Octagenarian:
O  A for Life, then to A‘s Children for their lives, then to A‘s Grandchildren then living
@ time of will: A is alive, 85 yrs old and has no children
R.A.P. assumes fertility until death
A validates lives of unborn children
Grandchildren fail because may not be known @ death of A + 21

The Unborn Widow:
O  A for life, then to A‘s Widow for her life, then to A‘s issue who survive A & Widow
@ time of will: A is alive, and married to S.
A‘s (eventual) widow may be a different person, unborn at time of will
A validates life of this widow (we will know at time of A‘s death)
W cannot validate other lives (issue) if she isn‘t alive at time of will.
Could be issue born after A‘s death who are not validated
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The Slothful Executor
O  O‘s issue living upon distribution of O‘s estate by the probate court
Condition precedent is out of control of O‘s issue and in hands of probate court
conceivably (possibly) could take longer than 21 years

R.A.P. Modified in response to these problems:
Wait & See Jurisdictions
- Protects interests of Lawyers
Uniform Statutory Rule Jurisdictions
- 90 years from creation of interest is maximum length of trust
Patchwork Jurisdiction
fixes flagrant abuses and problems as they arise


**No interest is valid unless it must vest, if at all, not later than 21 years after some life in being at the
creation of the interest. Only focuses on contingent remainders.
Trustee is legal owner, but not as an individual but as a fiduciary. Manages the $, but not for own enjoyment.
Missing equitable enjoyment of prop.
Beneficiary has equitable title.
Rulelook at how long owner can tie up interest in a trust. Owner may understand best way to administer prop
for a while, but world changes, families change. Rule is designed to give a certain period of time over which O‘s
perspective will be implemented and indirectly attempts to limit the duration of trust.

Inalienable---recipients cannot transfer property, cannot make it part of the market. A does not have full
property benefits BUT the property is free from creditors. Creditor must wait until $ is put into A‘s hands. Then
it‘s no longer a trust asset.

When something is inalienable then = spendthrift trust. Concerned about poor money manager. Without
spendthrift trust, life estate is considered inherently alienable. Problematic for society, but good for families who
have people who cannot manage their $.

Relevant life in being at creation of the interest who can validate the contingent remainder. Within the death of
someone, plus 21 years after that death, will the interest vest? How long will we have to wait to find out if
interest will vest? Rule doesn‘t care if event actually occurs. Just wants to know if it will occur in the time
Relevant If you affected vesting. If you affect some of the uncertainties in contingent remainder—unborn,
unascertained, (also those purposely written into the instrument.

If will---then someone who is alive when O died.
If trust—someone who was alive on day trust was created.

When looking to validate an interest. Look for some person alive at creation of interest within whose death plus
21 rule will definitively vest. If there is a question, then remainder is too remote and thus invalid. When looking
for measuring life, must be relevant to the vesting.
1. alive at creation of interest?
2. withing that person‘s death + 21 will it vest?


Wait and See Rule---wait to see if vested. Attractive to lawyers bc it could cover them if they would have lost it
under RAP. If you lose out bc of RAP, you might go after lawyer who wrote invalid gift.
Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01               24

USRAPcreation of interest + 90. If not vested by that point, then reversion.

Susan French, Perpetuities: Three Essays in Honor of My Father [Pages 220-224 of anthology]
 RAP goes too far in striking down reasonable dispositions bc of remote and fantastical dispositions.
 Wait and See develops into 90 year period. Is it better than RAP?
 Dukeminieropposes 90 year period bc it increases dead hand control.
 Waggoner supports the 90 years bc it rescues people from donors‘ lawyers‘ mistakes. Social benefit in effectuating
    donor‘s intent, even if it does tie up land for longer than CL rule.
 Author sees both sides and cannot come to a decision about dead hand control. 90 yr rule might help combat
    Americans‘ problems w/ not saving money. Size and terms of trusts are flexible, better option than IRA.
 Trusts are not dead hands, they‘re controlled by living trustees.
 Having $ tied in trust will allow steady flow of $ that will allow people to avoid cutting corners on education and

John Langbein, ―The Twentieth Century Revolution in Family Wealth Transmission‖ [Pages 224-233 of anthology]
 Decline of probates shows (1) increasing importance of lifetime transfers, and (2) decreasing importance of
    wealth transfers on death.
 Modern wealth = (1) financial assets—stocks, bonds, bank assets, etc., and (2) human capital—skills and knowledge
    for a technological life.
 Two Major themes
    1. Wealth transmission now focuses on skills. No longer leave big inheritance to kids, pay for education instead.
    2. People live longer and therefore need to spend that money they would have devised.
 Family used to be primary market and source of education. (Farm life) Now it‘s corporate rather than domestic.
 20th C brought 3 dominant modes of financial intermediation: (1) Corporation (2) Banking (3) Insurance Industry
 Because the transfer is inter vivos, there is no longer a sense of parental obligation to abstain from spending in order to
    leave inheritance.


1. CL Concurrent Interests

Nature of Tenancy:
 Each tenant has an undivided interest in the property, including the right to possession of the whole.
 When one co-tenant dies, the remaining tenants in common have no survivorship rights.
 Equal shares are not necessary for tenants in common, and the co-tenants can own different types of estates
    in the same property.
Alienability: Each co-tenant can transfer his interest in the same manner as if he were sole owner.
Presumption: Today, a tenancy in common is presumed whenever a conveyance is made to two or more
persons who are not husband and wife.

                   Right of survivorship. When one dies, her portion passes to other tenants, cannot be willed.
                   Joined together as one tenant. 4 reqs:
              (i)        Time—interest of each tenant must be acquired or vested at same time.
              (ii)       Title—must acquire title by same instrument or joint AP. JT can never arise by intestate
                         succession or other act of law.
              (iii)      Interest—all must have equal undivided shares and identical interests measured by
                         duration. (Modern allows unequal shares.)
              (iv)       Possession---each must have right to possession of the whole. Not half for you, half for
                         me. But once created, one tenant can give her part to other.
                   Must have all four in order to JT to exist.
                   If they cease to existcan change their interests into tenancy in common. Can do it
          unilaterally by conveying part to 3rd party.
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        1. If T dies, her property interest immediately transfers in equal shares to remaining Ts.
                 a. Heirs of deceased T will NOT inherit property, unless they are members of JT.
                 b. Deceased T may NOT devise property in a will since remaining Ts automatically receive
                     her property
        2. Survivorship rights are self-executing! (Ct decree not needed for transfer to occur.)
        3. Survivorship rights apply so long as Ts never sever JT.
                 a. If T sells her property interest to another person, JT is destroyed and TIC is created.
                 b. If JT destroyed, survivorship rights are destroyed.
NOTE: Must expressly state intent to create JT. Ex—O conveys Pinkacre to A and B: ―as joint tenants‖ or
―with right of survivorship‖

1. True joint tenancy -- O intends to make a present gift to A of ½ the sum deposited in addition to
   survivorship rights to whole sum on deposit.
2. Payable-on-death – O intends to make gift to A only of survivorship rights.
3. Convenience – O intends that A only have power to draw on account to pay O‘s bills and not have
   survivorship rights.
Problem: banks do not require clients to specify their intentions. They all look the same!!

   Created only in husband and wife.
   Same as JT but add 5th req of marriage.
   Deed need not say couple is buying as TIE---marriage certificate validates that. Law is very strictmust be
   A will cannot create this, even if it specifies.
   Transfer of property Individual interest of each spouse CANNOT be alienated, transferred, or
    encumbered by a mortgage w/o consent of other spouse.

1. If one spouse dies, her property interest immediately transfers to surviving spouse.
2. Survivorship rights are self-executing! (Ct decree not needed for transfer to occur.)

NOTES under TBE:
1. NOT recognizes in community property states.
2. Creditors cannot attach property unless both spouses sign credit agreement.
3. Courts may partition property if both spouses consent or if spouses divorce. [Partition = division of real
   property into individually owned interests.]
       * Different from JT  severance by one person is impossible, thus the right of survivorship cannot be

   Creditor can seize one party‘s part of JT, severs the JT. BUT if wait until death, the interest passes to other
    party and creditor is SOL.
   B wills land to X,Y and Z---have option of doing JT or TIC, depending on what will says. But if now will
    and passes to heirs---it‘s not viewed as passing thru title. Therefore it must be TIC.
   When both die at same time Moieties = ½ shareeach part will pass to each individual‘s estate.

JT                                                                         TIC
Right of survivorship                                              No right of survivorship
No Right to devise                                                 Right to devise (to will)
 this is attractive bc can plan for future w/o having to go thru probate. (spouses)
Property Outline, Prof Hernandez, Spring 2001                                     last updated: 4/29/01              26

Severance of Joint Tenancies
Riddle v. Harmon, CA Appeal, 1980 Joint tenant may sever joint tanancy by conveying her interest in the
property to herself w/o the use of 3rd person/strawman.
Facts—Mr and Mrs R have JT in prop. Nearing death she drafts will and lawyer tells her that upon her death,
her interest will pass to husband. Wants to avoid this and will it to another. Draft deed trying to bust the JT by
conveying prop to herself.
HeldTransfer to herself was legit. Defies common sense to have to go thru the charade. JT should be able to
bust her JT on her own. The law is archaic. This does not create new power for joint tenant bc they‘ve always
had right to convey their interest.

Harms v. Sprague, Supreme of IL, 1984 Mortgage granted by one JT does not sever the JT and does not
survive the death of the mortgagor as a lien on the property.
FactsAs a favor to Sprague, John mortgaged his interest in JT with William, so Sprague could buy
Simmonses‘ house. William did not know. John before payoff to Simmons, John dies and devises everything to
Sprague. Sprague claims the inheritance includes the land with William bc the mortgage busted the JT, thereby
allowing it to be devised.
Held JT is not severed when one JT executes a mortgage on his interest in the prop, since the unity of the title
has been preserved. Also, lien on prop by Simmonses is over bc surviving JT is entitled to full portion.

Lien theory Jx---mortgage may look like a transfer, but it‘s like any other lien/debt. Creditors must collect
when person is alive or move fast upon death!! Upon death, there is immediate transfer to other JT.
Title theory Jx—mortgage would bust JT. (That‘s what Charles wants.)

      4. Marital Interests
a. CL Status

Relation among Current Owners
(i)    Partition

Partition in Kind(Technically the default, but in reality modern courts do more by sale.)court-ordered,
phys division of land held by joint tenants or tenants in common by which each tenants‘ interest is converted
into a parcel taken from the whole, and each tenant then takes exclusive possession of her share of the land.
Partition by Salecourte-ordered division of land held by JTs or TICs by which land is sold and the proceeds
are divided among the tenants according to the size of their interests in the land.

Delfino v. Vealencis, Supreme of Ct, 1980
Partition by sale should only be ordered if the phys attributes of the land in question are such that a partition
is impracticable or inequitable, and the interests of the owners would be promoted by a partition by sale.
Facts—Tenants in Common. Defedant (Vealencis) owned and operated rubish removal business. Ps wanted
partition of land by sale. P wanted to develop land for residential housing. P wants to force out the minority
owner, (D), by using this legal mechanism.
Held Partition by sale only ordered if:
          1. Phys land is such that division is impracticable or inequitable, and
          2. Interests of owners would be better promoted by sale.
 Burden on person who wants sale to show why.
 It was D‘s family home and business. She derives her livelihood from the property.
 In modern practice—cts prefer partition by sale. Even though the rule is supposed to favor partition on kind.
     try to avoid the costs of partition and individual sales. Better to sell whole thing, have one transaction cost,
     and divide proceeds.

(ii)    Sharing the Benefits and Burdens of Co-Ownership
Spiller v. Mackereth, Supreme of AL, 1976
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Where no agreement exists for rent btw cotenants, a cotenant in possession is NOT liable for rent to other
cotenant unless ouster is established. Promotes constructive use of property.
Facts—Parties own building as tenants in common and their tenant moved out. Spiller entered and used prop as
rental space.
Heldno duty to pay rent to co-tenant in common if there is no K to pay rent or no ouster. Here, no K. No
finding of ouster.

Ouster happens in 2 situations:
   (1) Beginning of the running of the statute of limitations for AP. (IeWhen all the elements of AP have
        been satisfied and tolling can begin.)
   (2) liability of an occupying cotenant for rend to other contenants
* Ouster starts upon the possessor‘s refusal to let the non-possessor use property.

Ousterthe beginning of the running of the statute of limitations in cases of AP; the liability of an occupying
cotenant for rent to other cotenants.

Swartzbaugh v. Sampson, Ct of Appeal of CA, 1936
Each tenant in JT has the right to possession of the whole property, and thus can lease out or transfer her
right to occupy or use as she sees fit.
Facts—husband and wife own land and husband leases it to Sampson who will use it for boxing pavilion. Wife
opposes it. They hold as JT, but not by the entirety.
Held—Leases from Swartzbaugh to Sampson are not null and void but valid and existing Ks giving to Sampson
the same right to the possession of the leased property that Swartzbaugh had. Lease hold cannot lead to AP,
unless lease ends and person stays. That will begin period of AP.

** Wife could have affirmed—(1) allows husband lease for them both—sampson would have right to lease
entirety, not just half (2) alters her legal rights. Forces husband to have responsibility to give her some of the

b. Community Property and K Relationships

Divorce (Marital Interests continued)
1. The Common Law Marital Property System
   (a) During Marriage (The Fiction that Husband and Wife Are One)

Note—JTs can lose their interest to a creditor. Valued at ½ of the whole, as long as it‘s done while person is
alive bc upon death, it transfers to other JT as fee simple.

Sawada v. Endo, Hawaii, 1977 Estate by entirety is not subject to claims of creditors of only one of the
spouses bc neither spouse acting alone can transfer his or her interest. Protecting family unity outweighs
needs of tort creditor. This is majority jx.
FactsSawada hit by Endo. File suit, Endo owns prop as tenants by entirety with wife. conveys prop to kids,
but continue to live in house. Mrs. Endo dies, survived by Mrs. Sawada wants to set aside conveyance of
property in order to satisfy judgment for her, against Endo. In order to convey tenancy by the entirety both have
to agree bc TBE comes with that extra layer as compared to just JT.
Held interest of one spouse in real property, held in tenancy by the entireties, is NOT subject to levy and
execution by her individual creditors.
 The estate can only be created by the married couple and thus can only be destroyed by the actions of the
    married couple.
 Not unfair to creditorsIf debt arose prior to creation of estate, the prperty was not a basis of credit, and if
    the debt arsoe subsequently the creditor presumably had notice of the characteristics of the estate which
    imited his right to reach the property. In this case, this is not satisfying bc no credit was loaned. It was a tort
    there was no bargaining!
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DissentMajority‘s interpretation of Married Women‘s Act equalizes the position of spouses by taking away
rights to transfer interests. It would have been better to give that right to both spouses.

Four Jx
I—estate is essentially common law tenancy by entireties, unaffected by the Married Women‘s Property Act.
Sad wife. Could lose it all. OBSOLETE.
II—interest of debtor spouse in the estate may be sold or levied upon for his or her separate debts, subect to the
other‘s spouse‘s contingent right of survivorship. Creditors can only attach what person had. If person in debt
dies first, creditors are SOL. Creditors who have lien on debt person‘s interest could theoretically move in and
live in house. Realistically, it doesn‘t give the creditors much. Not much difference btw II and III if debt person
dies first.
III---Attempted conveyance by either spouse is wholly void and the estate may not be subjected to the separate
debts of one spouse only. protect spouse from other‘s bad financial habits. But if the one in debt is survivor can
go after his interest bc now it would not be hurting her.
IV—contingent right of survivorship pertaining to either spouse is separately alienable by him and attachable by
his creditors during marriage. OBSOLETE

b. Termination of Marriage by Divorce
     Common law jx―separate property jx‖, that‘s majority in US. Upon divorce, property divided by
       getting what your name is on. If held as jt, it remains Jt. If by entirety then it's destroyed and transferred
       into tenants in common.
     Modern lawtransformed it somewhat. Thru Equitable Distribution—sep prop jx—use equitable
       concerns to think about how to divide prop, regardless of who‘s name has title. Look at educ levels,
       employment, how contributed thru accumalation, etc. If at home spouse, you might have contributed
       services like childcare, cooking, etc. It‘s considered contribution bc it facilitated the other‘s spouse‘s
       ability to be in the workforce.

In Re Marriage of Graham, Supreme of CO, 1978
Graduate degree is not marital prop. Just look at it as factor for future potential earning.
FactsShe supported him while he earned degrees. He was in school for 3 and ½ years of their 6 year marriage.
She contributed 70% of financial support.
HeldEducation is not marital property and therefore not subject to division upon divorce.
 Def of property—no exchange value, non-transferable, cannot be sold, conveyed, inhertited, etc. Simply an
    intellectual achievement.
 Degree itself is not marital property but if marriage continues and from degree able to garner higher wage
    then when doing distribution of property it might be a factor in determining earining potential.
 Irony is that good will in a profession is viewed as marital property. More concrete than based on
    professional practice that is already in existance. Realistically, it‘s just has difficult to put $$ on. But in
    wrongful death, ct does analyze would dead person could have potentially provided for family.
 Her earnings not only provided husband‘s support by were invested in his educ in the sense hat she assumed
    the role of breadwinner so that he would have time and funds necessary to obtain his educ.

Mahoney v. Mahoneysome states hold that the working spouse should be awarded ―reimbursement

CovertureCL status for women, wife possessed only the right of survivorship and not the right to use/enjoy
and no exercise of ownership in the marital estate.

Dower—for surviving wife. she would get 1/3 a life estate in each parcel of real property that H possesses
during marriage. Only life estate, and not entirety value in it. Immediately upon acquisition, wife had dower
right. H could sell land but it went with dower attached! In order for dower to attach, husband had to hold prop
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in certain way. In order for dower to attach it would have to be inheritable by his issue. It had to be divisible.
(Inheritable = Fee simple, share of TIC, cannot be JT.) (Not inheritable by issue = JT, life estate, leasehold.)
Curtesy—for surviving husband. Same rules of attachment. Differs from dower in 2 ways:
                 1. In order for curtesy to attach—kids had to be born to the marriage first. He did not deserve
                     the rights until they had kids together. Otherwise it would stay in her line, but he would be
                     able to control it bc of coverture.
                 2. Once it attached, H got life estate in each parcel. NOT a 1/3 life estate. VALUE OF
                     CURTESY > VALUE OF DOWER.

C and D changed bc of fear of tying up property. It was inchoate. It always transferred with D or C of prior
spouse. No one wants to buy prop that is attached by the spouses. Also, created ambiguity when it was sold.

Elective Share—will not examine all prop coming in and out of marriage. Instead—when one spouse dies and
does not leave other a min of X (usually 1/3 of net probate estate) then the surviving can elect if the spouse
chooses to can get a forced share (or what was left in will but idea is that will didn‘t leave much).

Elective better:
 look at what decedent owned (real and personal) at time of death. ADVANTAGE OF CLARITY—EASIER
 Does not apply only to land (D and C are limited this way). APPLIES TO MORE.
 Gives 1/3 outright. Not just a life estate that gives only right to enjoy during life.

Dower and Curtesy better:
 elective share allows decedent to empty the probate and you get 1/3 of nada.
 D and C don‘t depend on which spouse dies first. don‘t depend on death at all, they attach the moment the
   property is acquired. no question of what‘s in probate at time of death.
 in this respect d and c look more like community property. don‘t have to wait til death of one of the spouses
   to figure out what is coming. they are immediate rights.

Anthologyfamily‘s greatest prop is now human capital, not land. Look how this contradicts Graham case.

Community Propertyearnings and property of each spouse during marriage should be owned equally in
undivided shares by both spouses. Immediately upon being bought or earned, it‘s attached as CL. It is not what
is acquired by gift or inheritance, also not what had before marriage. All of that is separate property.

   like D and C is inchoate. It cannot be sold away unless both of marital partners consent.
   Key way in which it differs from tenancy by entiretythere are no rights of survivoship. The moment you
    have share of comm prop, it‘s yours. Can‘t sell your half without spouse‘s consent but can plan for your
    death. You can give away your ½ share upon your death. Spouse does not automatically get it. Can be
    divised to whomever choose.
   There is no elective share, curtesy or dower. With comm prop it is already established, upon acquisition.
   Something held in JT can be valid under common property.

Upon divorce—vary with Jx. equitable distribution is not necessarily ½ -1/2 . This gives a clarity but it does not
speak to how even ½ will be of protection to the spouse who does not have market powr. so some jx that are
comm prop do have equitable distribution. Look at exigent circumstances. Diff from CL in that com prop looks
at ½-1/2.

Commingling of Assetsif move from another jx during marriage. Becomes more difficult to know what came
from where. Then you have stat presumption that it‘s community prop. (that‘s if go from sep to comm prop jx).
If reverse, NY (sep) will respect that comm prop jx. Once something is bought in comm prop jx, it stays that
way, even if couple moves to sep prop jx. Look at domicile.
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Marvin v. Marvin, Supreme of CA, 1976 Expressed and Implied Ks btw nonmarital partners should be
enforced except to the extent that the K is explicitly founded on sex as consideration.
Facts Co-habitate for 6 years and held themselves out as husband and wife. She gave up lucrative career to be
homemaker. During this time, he acquired valuable property.
HeldImplied K will be enforced. We will not assume that just bc you‘re unmarried and co-habitants, that it‘s
based on sex. People who co-habitate and have sex are just as competent to make Ks as those who do not.
CA has extended this right to same sex co-habitants.

Baehr v. LewinHI Supreme dismisses case bc legis says marriage = opposite sex. HI does allow gay couples
to register, not same as marriage. A small increase in status.

Baker v. State of Vtstate could not exclude same sex couples from the benefits and protection of the laws
that go to hetero couples. Just gives VT state rights.

Defense of Marriage Act (DOMA)gives each state the ability to say they don‘t have to recognize same sex
marriage from other states (VT or HI).

Williams, Gender and Property (Anth) – Starts by observing the ‗feminization of poverty‘ (maj. of
impoverished are women) and ask how it persists? Answer: property system enriches men at expense of
women and children
 Old regime: coverture– ―husband and wife are one and that one is the husband‖ (Blackstone)
 Traditional story of change: Married Women‘s Property Acts removing barriers to ownership for women.
 Revised by historians of women who show that Acts passed to protect household prop. from creditors and
   not to provide ownership to women.
 Current Gender System: wives ―double burden‖ – career subordinate to husband AND children
 Mirrors shift is from real property to human capital as primary form of wealth
 Gender roles dimish wives human capital and enhance husbands
 ―Today, the ideology of equality ensures that women have the formal right to own property, but the law
   steps in to define property in a way that excludes human capital – leaving women with disproportionately
   little property to own.‖
 Ties these concepts to family law which in divorce law defines woman‘s claim as ‗alimony‘, differentiates
   betw. child support and support for caretaker, ultimately defines ‗family wage‘ as husband‘s property.
 Marital and Community Prop rules systematically undervalue women‘s contribution
         how to rectify this? Notes ask what about dividing assets in inverse to earnings

Landlord & Tenant


Leasehold is an estate in property. Tenancy is an estate in land by virtue of the possession the tenant has. Not the
same as freehold estate, fee simple, etc. Leaseholds are NONFREEHOLD. BC they incorporate the concept of
possession that cannot be passed onto another.

Tenancy for Years
    Can be month or day, describes a tenancy of a fixed term with a calendar date.
    When term for longer than 1 year, then by Statute of Frauds, it must be in writing.
    Bc of fixed calendar date, neither party can unilaterally terminate before determined date, w/o
    Death of the parties does not effect the K. Heirs could continue the lease.
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Periodic Tenancy
    Has fixed duration, but not a clear calendar date.
    Describes a period of fixed duration over a period of time. (month to month, starting 2001).
    no notice that want to terminate (if silent), then it‘s automatically renewable.
    It‘s seen as same lease.
    DISTINCTION—term of years looks more like clear K. Periodic Tenancy—is also a conveyance, even
       though it‘s also called a K.
    Either party can unilaterally end the K. Bc of that, the death of one party can terminate a tenancy. EX—
       if die on march 5, then heirs have to pay for april.
    chain of baby tenancies. chain can be broken.

Tenancy At-Will
    Terminable at will of either landlord or tenant.
    Affected by the death of the parties.
    no fixed period of duration. Meant to last as long as the two parties wanted.
    If there is K that explicitly gives one of the parties the right to terminate, then bc it is at will there is an
      automatic reciprocal right for other party to also terminate it unilaterally.
    meant to be a mutual K all along.

Tenancy at Sufferance/Hold-Over
    arise when tenant who once had permission, no longer does.
    Person still has possession.
    Not a true trespasser bc came onto premises with permission.

Garner v. Gerrish, 1984 At-Will  CL is Reversed  If lessee has option of terminating lease when he
pleases, a determinable life tenancy is created.
FactsDonovan leased house to Gerrish for as long as Gerrish Wished. Donovan dies and executor of estate
wants Gerrish out.
HeldGerrish has life tenancy bc tenancy even though lessor is dead bc agreement was for as long as Gerrish
wished to stay.
NoteAt CL, life estate could not be created w/o livery of seisin (clod of dirt).

Crechales & Polles, Inc. v. Smith, 1974 Ct limits landlord’s optionsOnce landlord decides to either treat
holdover as trespasser or hold him to new term, lord may not change her mind.
FactsD had five year lease that expired and told lord he wanted to holdover on a monthly basis. P refused and
told D to vacate. D stayed and sent rent. P accepted the rent.
HeldP only gets the amount for holdover rents. Cannot change his mind once a kind of lease is determined.
        At CL, lord had two options:
                 (1) eviction (plus damages)
                 (2) consent (express or implied) to creation of a new tenancy
        NoteCase shows balance btw tenant‘s needs and lord‘s prop rights. Problem is that if 3rd party is
        waiting to rent at higher rate, lord could still lose this increase in rent.

   Policy reasons for not being able to change mind important to lock in decision bc tenant needs to know
    where he stands. Tenant might make decisions based on lord‘s info (brokers‘ fees, deposit on another place,
    etc.) Also, lord needs to know if needs to look for another tenant. Unjust enrichment and reliance issues.


Fair Housing Act  Does not guarantee housing for all, just a fair shot at it.
(a) Covers unlawful discrim for rental and sales for the negotiation of rental and sales. Based on:
1. race,
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2. color,
3. religion,
4. sex,
5. familial status,
6. national origin, and
7. disability.
(b) Covers biases in publication—notice of sales.
(c) False representations about availability of housing.
(d) Representations made to induce someone to rent or sell by entry or prospective entry.

1. Owner of single family home who does not own more than 3. What is the rationale for this kind of legis?
   Now not just looking at the individ. Look at power of individ to have effect on others---business purpose.
2. If you own just one and you try to sell or rent it with the services of a broker, then you come back under the
   act. Why? Broker can affect many.
3. Single family home, don‘t use broker, don‘t own more than 3, BUT if on your own you put out an ad in the
   paper If the ad exercises a disrim preference, the single family home owner goes back under the act.
4. Owner of small multiple-dwelling unit(4 or fewer units = small)only be subject to FHA if you‘re not
   living in the multiple dwelling unit, yourself. Living in building is greater emphasis on freedoms to intimate
   association. Look more like business person. Business folks have power to create a market that‘s

Soules v. US Dept of Housing & Urban Devl, US Ct App, 1992 Ct supports landlord’s right to scrutinize
prospective renters.
FactsAlleged family status violation. P has 12-year old daughter. On appeal from ALJ decision. Stnd of
reviewnot in accordance with law or unsupported by substantial evidence. Testers—broker treats testers
differently. The one w/o kids gets better treatment. P can mount prima facie (1) member of one of the covered
classes (2) did not get in. DO NOT HAVE TO PROVE INTENT FROM THE ACT ITSELF--like res ipsa in
torts. When burden shifted back to realtor, she could simply say she was inquiring about kids bc of law that reqs
separate bedrooms and concerned about well-being of elderly neighbors.
Held Housing providers can defeat dsicriination cliams by showing legititmate reasons for refusing to rent,
and factfinders are allow3ed to inqurie into the providers‘ subjective intent in questionsing prospective

Freedom of Intimate Assoccan put out ad to request female roommate, non-smoker, etc. Familial status does
not apply to old folk communities.
Tipping pts that cause white flightinvalid justification bc result is that it excludes minority populations.
Sometimes clashing of goals—in order to promote integration might have to take into account the biased
reactions of current residents. BUT CLASS BIAS IS NOT PART OF THE FHA.

Bronk v. Ineichen, 1995 Juries must determine whether a landlord must make accommodations to rental
policies for the benefit of disabled persons.
Facts alleged disability violation. Ps were deaf and wanted their hearing dog to live with them, but it was
against pet policy.
FHA—broad based societal goal—fair housing to all—just bc they had already moved out does not mean they
lose their ability to bring suit.
Held Landlord must make reasonable accomodations. Jury must way disabled persons‘ needs with the burden
on landlord. Look to see if dog was actually necessary for tenant. Legal standard is not very clear.

What happens to Tenant and what are rights of landlord? Must always look at both sides bc they are interrelated.

Berg v. Wiley, Supreme of MN, 1978
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Landlord does not have right to self-help bc you have to use the judicial system.
Tenant violates lease by remodeling AND by failing to meet health code. Remodeling was allowed, but she had
to get permission and she did not. she had entered lease thru her brother. she did not negotiate this lease.
Note—tenant has right to transfer her interest by assigning or subletting.
1. If assignment, T2 is in privity of the K with landlord.
2. If sublet, K relat btw T1 and T2. Lord has no relat with T2, so lord would go after T1 if there had been
    problems. This is not a transfer of entirety of interest.

   Lord felt entitled to change the locks bc got bad advice from lawyer and the date had been set in the letter—
    2 week ultimatum bc board of health had given limit.
   Under CLLord could use self helf if:
    (1) If legally entitled to possession, like if holdover.
    (2) If lord‘s means of entry are peaceable.

 Lease said he could overtake prop if violation of K.
 BUT Berg had not abandoned the property.s
HeldIn order to be peaceable disputes must be judicially determined.

Reasons for protecting possessors on rented land:
1. Discourages the forcible taking of land. Law always wants to deter violence.
2. Protects families being left with no where to go.

Modern Ruleself help is never available to dispossess a tenant who is in possession and has not abandoned or
voluntarily surrendered the premises.
Legis Rationalesafer and summary proceedings are quick. (although, this is not really the case)

Sommer v. Kridel, 1977 Landlord has duty to mitigate damages by making reasonable efforts to re-let a
property wrongfully vacated by tenant.
FactsLease for 2 years. Tenant then writes (less than 3 weeks into lease period) that he cannot take it
(engagment off, discharged from Army, student, etc), had already paid deposit and first month. Says lord can
keep it. Lord ignores the letter and then had opportunity to mitigate and did not do so. Lord sues for full amount
of lease.

   Lord has duty to mitigate and tenant would have to pay costs of finding another tenant.
   K lawBurden to prove duty to mitigate is on the breacher. CONTRAST Lanlord-tenant law places the
    burden on the landlord.
                            onus on lord bc tenant has obstacle to info to prove lack of mitigation. Tenant has
                    no access to info on how much lord spent looking for new tenant, etc. How to prove that
                    lord did not mitigate damages? It would be impossible.

In both cases…
 self-help context (duty to mitigate)
 2 jx that vary in whether or not they want to apply their cl or modern approaches to both commercial and
    residential leases.
 Berg---commercial. Sommers—residential.
 Situational differences btw residential and commercial leases that would justify treated them differently.
 Duty to mitigate is often only applied to residential lease and not commercial.
 Are lords less likely to be abusive in the commercial leasing context? Comm lords have a bit more
    bargaining power, but not necessarily a lot more.
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   Self-help---jx do not apply the rule unilaterally. Some allow in residential and not comm and vice versa. It‘s
    not so much about unequal bargaining power. What‘s the difference?
   Having a business is a choice, shelter is not. Although, could be that families are dependent on the success
    of a business.

K rules in Property
 K law elaborates promises to each other but contention about how to continue dealing with each other. some
   are explicit and some implicit.
 What justifies the incorporation of these K relats into prop, which is traditionally viewed as conveyances?
   How does it give greater rationale to our modern concepts about property? Modern concept---not about
   relat to some item, but about people with respect to some item.



   1. Common Law/History of LL-T relationship
         a. LL‘s primary duty was to delivery/turn over the premises  conveyance. Symbolized by
             delivery of keys (both constructive and symbolic). If there was an old T there, new T had duty
             to evict holdover T.
         b. All other LL obligations defined by caveat lessee – ―let the lessee beware;‖ lessee takes the
             premises as he finds it, whether fit for human habitation or not  if T doesn‘t bargain for it, T
             doesn‘t get it; ―as is delivery‖  accepting premises in condition delivered by LL.
         c. Exceptions to caveat lessee:
                   i. Short-term lease of furnished place  LL‘s implied duty to keep premises habitable
                  ii. LL‘s duty to disclose latent defects
                          1. CL took narrow view of latent defects. (Ex. train passing by at 4 am would not
                               be a latent defect in CL. May be in modern jurisdix that took broad view of
                               latent defect.)
                 iii. LL‘s duty to maintain common areas
                 iv. If LL starts to make repairs, LL has duty to make repairs in careful manner
                  v. No fraudulent misrepresentations
                 vi. (Sometimes) duty to abate immoral conduct
         d. Only way to mitigate T‘s obligation to pay rent is through interference w/ quiet enjoyment.
             Interference must be so severe that it‘s as if you‘ve been kicked out. (constructive eviction 
             modeled after actual eviction)
                   i. Obligation to pay rent is dependent on T having possession undisturbed by LL.
                  ii. So, if you can characterize a shortcoming in the leased premises as an unlawful
                      disturbance by LL – as a breach of the covenant of quiet enjoyment implied in all leases
                      – AND if the disturbance was so substantial as to amount to eviction, and if T thereafter
                      abandoned the premises, then it is as though T were evicted.  constructive eviction!
                      Once evicted, T no longer had an obligation to pay the rent.
         e. If there was harm done by LL, T still has to pay rent but can ask for damages.
   2. Disputes btw LL & T rgd-ing the condition of the premises arise in essentially 2 ways:
         a. T might with to vacate, or to stay but pay less (or no) rent.
         b. T (or an invitee of T) might be injured by allegedly defective premises and claim damages
             against the LL in tort.
         c. Key: disputed btw concurrent owners or with respect to one item of property.
    3.   Moral hazard – tendency of an insured to relax his efforts to prevent the occurrence of the risk that he has insured
         against b/c he has shifted the risk to an insurance company.
             a. Moral hazard in LL-T relationship:
                        i. LL has incentive to neglect everyday repairs b/c costs of neglect are borne primarily by tenants.
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                       ii. Tenants, in turn, have an incentive to neglect maintenance, esp toward the end of the term, b/c
                           the costs of neglect will soon shift to the landlord.
             b.   Issue: How does the law deal with moral hazard?
                        i. Law of waste – applies whenever property ownership is divdient s.t. 2 or more persons have
                           consecutive rts to possession, such as LL-T relationship.
                                1. Duty not to commit waste is breached if T makes such change as to affect a vital and
                                     substantial portion of the premises.
                                2. Not every alteration by T = waste. Look at degree of effect on use and value of the
                                     leased premises; permanence of change; length of term remaining at the time when T
                                     makes the changes.
                                3. No bright line that distinguishes waste from lawful activities.
    4. Quiet Enjoyment & Constructive Eviction
          a. Reste Realty Corp v. Cooper (1969) (CB 508) – Whenever it rained, the basement that Cooper
              (D) was leasing flooded. T subsequently vacates premises. LL sues to recover balance of lease.
                   i. Held: for T. Tenant may vacate premises and terminate the lease if his quiet enjoyment
                      is interfered with by the LL.
                           1. Covenant of quiet enjoyment is implied in a lease. When an act or a failure to
                               act renders the premises unsuitable for the purpose for which it was leased, this
                               covenant is breached. If this occurs, T may terminate the lease if T chooses. If
                               T decides to terminate, T must vacate premises.
                           2. Where there‘s a quiet enjoyment covenant, implicit or explicit, any breach by
                               LL = constructive eviction of T.
                           3. Court focuses on recurrence of the flooding problem after it rains; becomes
                               practically equivalent to being permanent.
                  ii. Reste articulates CL perspective on LL-T relationship.
                 iii. Policy for having constructive eviction  relieve T from harsh burden imposed by CL
                      rules which applied principles of caveat emptro to the letting, rejected an implied
                      warranty of habitability, and ordinarily treated undertakings of LL in a lease as
                      independent covenants.
                           1. Independent covenants = mutual covenants in an agreement that remain
                               enforceable even though the other has been breached.
                 iv. Implied covenant of quiet enjoyment  LL warrants that the premises will be fit for
                      the purposes for which it was leased. Move towards contract law (warranty).
          b. Scope of covenant of quiet enjoyment
                   i. Includes physical and beneficial enjoyment.
                  ii. So, in principle, breach occurs only when LL‘s conduct has effect of depriving lessee of
                      the beneficial use of the premises by positive acts of interference or by withholding
                      smthg essential to full enjoyment and included w/in the terms of the lease.
                           1. implied duty to make and keep premises habitable.
                           2. LL‘s duty to disclose latent defects that LL knew or should‘ve known about;
                               maintain common areas; abstain from fraudulent misrepresentations
             c.   Partial eviction – actual and constructive
                        i. If there is an actual eviction, even tho from a part of the premises only, T is relieved of ALL
                            liability for rent notwithstanding continued occupation of the balance.
                       ii. Constructive partial eviction – some breach by LL makes only a part, but not all, or premises
             d. Tenant’s remedies:
                    i. Actionable interference by LL can be remedied by means other than T abandoning
                       premises.  So T usu can stay in possession and sue for damages equal to the
                       difference btw value of property with and without the breach.
                   ii. If breach is substantial, T may leave on a theory of constructive eviction  no longer
                       has obligation to pay future rent and is entitled, presumably, to recover damages.
    5.   The Illegal Lease – illegal contract b/c violates statutes  unenforceable.
             a. Does not apply if code violations develop after making of lease.
Property Outline, Prof Hernandez, Spring 2001                                         last updated: 4/29/01              36

            b.   Minor technical violations don‘t make lease illegal, nor do violations of hiwhc LL had neither actual nor
                 constructive notice.
            c.   T under an illegal lease is a tenant in sufferance, and LL is entitled to reasonable rental value of the
                 premises, given their condition.
            d.   From T‘s point of view  illegal lease provides leverage. T can w/hold rent and still put off LL‘s
                 inevitable action to evict for nonpayment.
    6. Implied Warranty of Habitability – can also be affirmative df asserted by T in eviction
          a. Hilder v. St. Peter (1984) (CB 519) – St Peter (D, LL) leased apt unfit for habitability to T. T
               told LL about defects. LL agrees to make repairs but never makes them.
                     i. Held: for T. There is an implied warranty of habitability in every RESIDENTIAL lease
                        and this warranty can‘t be waived by the tenant.
                            1. Warranty covers all latent and patent defects in the essential facilities of the
                                 residential unit. Can use housing codes to determine if there‘s a breach.
                            2. Once breach is established, T must notify LL and allow LL time to remedy the
                                 defect. If defect is not remedied, T can pursue rescission (voiding of contract),
                                 reformation, and damages. T may also w/hold rent until damages are calculated.
                    ii. Since warranty is not waivable, actually ends up decreasing T‘s bargaining power. LL
                        also may end up increasing rent since they must now warrant the premises.
          b. Standard & breach of the warranty
                     i. An ―adequate std of habitability‖ has to be met, and a breach occurs when the leased
                        premises are uninhabitable in the eyes of the reasonable person.
                            1. Covers latent & patent defects, common areas.
                            2. Warranty is not waivable in most jurisdictions.
                                     a. When used as aff df, implied W of H allows T to vacate bad premises
                                          w/o being bound by the rest of the lease terms.
                            3. For most part, does NOT apply to commercial leases.
                                     a. Don‘t know what each biz wts to do w/ premises  will define
                                          interpretation of ―habitable.‖ Biz  in best position to bargain for the
                                          place that meets its needs.
                    ii. Housing code provisions and their violation are compelling but not conclusive.
                   iii. Objective – safe and healthy house. Requires substantial compliance.
                   iv. TEST FOR IMPLIED W OF H:
                            1. Whether claimed defect impacts on the safety and health of T
                            2. Abandonment is not necessary on part of T.
          c. Justifications for implied W of H:
                     i. Unequal bargaining power of LL and T
                    ii. Evolution in focus of transaction:
                            1. old times  conveyance of land
                            2. modern times  use & habitability of structure. Urban dwellers less capable of
                                 making repairs. LL in better position to make repairs.
                   iii. Shortage of housing, esp. low income housing. Hard for pp to move around at will.
          d. Remedies for breach – based on contractual principles.
                     i. From Hilder – T who has paid rent and remains in possession later sues for
                        reimbursement and damages, claiming breach of warranty.
                    ii. More typical – T who remains in possession BUT withholds rent. LL then sues for
                        possession and back rent.
                            1. If T successful in claiming breach of warranty, rent is  partially or totally, and
                                 T may retain possession if he pays the reduced amt. (rent abatement)
                                 Reduction depends on the extent of risk to health and safety.
                            2. Effect: T may w/hold rent, retain possession, & have rent  b/c of LL‘s breach.
                            3. Lots of disagreement on how to calculate damages.
    7. Retaliatory Eviction – another defense to eviction
Property Outline, Prof Hernandez, Spring 2001                                last updated: 4/29/01           37

          a. Most jurisdix forbid retaliatory action by LL, either by statute or case law. Allowing retaliatory
              action undermines reforms to protect T b/c it frightens T away from complaining.
          b. Note also that LL‘s freedom to terminate tenancies is also constrained by anti-discrimination
              measures and rent control laws.
                    i. LL has two property rights: (1) right of ownership to physical premises and (2) right to
                       his business/enterprise. Both of these are limited to protect T. T, by leasing, also
                       acquires property interest.
          c. As a defense, often raised at the same time T raises df of implied W of H. Problem is that it‘s
              hard to determine when LL‘s actions are indeed retaliatory.
                    i. Only a FEW states have policy of presumptive retaliatory action.
                   ii. Proof involves a shifting of burdens.
                           1. T shows that LL‘s action may be retaliatory.
                           2. LL then has to come up with legitimate reason for action – ex. show that rent
                                increase is related to smthg else, basically show that it‘s not pretextual.
                           3. T shows reason is pretextual (ex. revenge for complaining)
          d. Once illegal/pretextual purpose has dissipated, T no longer has protection from retaliatory
              action. Prob is deciding WHEN illegal purpose has disappeared.
    8. LL’s Tort Liability (CB 530)
          a. LL only liable for T‘s injuries if LL breaches one of the exceptions to caveat lessee – short-term
              lease, maintain common areas, no fraudulent misrepresentations, disclose latent defects, make
              good repairs.
          b. Generally, narrow terrain for LL tort liability. (Liab can be handled by torts instead of prop.)
          c. Example: (CB 531 #2) LL leases farm to ‘s father. Boy injured in barn.
                    i. At CL, LL liable only if violates one of the exceptions, such as failing to disclose a
                       latent defect. If LL disclosed the defect, too bad for .
                   ii. Modern approach – looks more like tort suit. Look at what control LL has over
                       premises for which he may be negligently liable.
          d. Being an owner gives you the benefits of ownerships w/ constraints AS IT RELATES to other
              people. Private property ownership doesn‘t exist in a vacuum! Examples:
                    i. Adverse possession – favor AP if AP makes better use of land
                   ii. Future Interest – rule against waste, rule against perpetuities
                  iii. Zoning/land use – balancing of land use control

   1. Affordable housing of decent quality is a challenge to all, but especially the poor.
   2. Chicago Bd of Realtors v. City of Chicago (1987) (CB 535) – Chicago enacted a rent control ordinance
      which made minor re-allocations of rights btw LL and tenants.
         a. Held: Rent control ordiance w/ minor re-allocation of rts is reas related to a legit public goal.
         b. More important is Posner’s concurrence – economic analysis & argument against rent control.
             Critiques the Implied W of H. Uses RATIONAL actor approach.
                   i. Stated purpose of ordinance is to promote social welfare but won‘t happen in reality.
                  ii. If LL can‘t charge more than $10 for late rent and if T can w/hold rent  LL will not
                      improve housing much since it won‘t pay.
                 iii. LL will also try to raise rents  hurts T by forcing those who can‘t afford higher prices
                      to go homeless.
                 iv. If LL can‘t raise rents  move resources to developing condos,  stock of housing.
                  v. Principal beneficiaries are the middle-class.
                          1. Better risk against late rent.
                          2. Benefit from over-supplied and lower price condos.
                 vi. Rent control artificially depresses prices or increases LL’s costs  supply  or rents ,
                      pricing poor pp out of the market.
         c. Posner‘s critique focus solely on individual LLs. Will look at other factors such as gender/race
             to see who makes better T – proxies.
Property Outline, Prof Hernandez, Spring 2001                                    last updated: 4/29/01            38

    3. Debate over LL-T reforms
          a. Rent control
                      i. Criticisms:
                              1. If P artificially kept low, or costs of LL artificially , supply falls, which hurts
                                  poorer and newer tenants.
                              2. The more an ordinance intrudes upon mrkt conditions that would otherwise
                                  prevail, the more likely it is to cause dislocations in housing market.
                              3. Many of the short-term benefits of rent controls ( rents) aid affluent rather
                                  than poor households, and some of the costs ( access to vacant units) must be
                                  borne by very poor households.
                     ii. Defenders say that such conclusions are either unreliable or largely irrelevant.
                              1. Existing T are usu beneficiaries of rent ctonrol. Rent control makes it possible
                                  for them to stay where they are.
                    iii. In reality, rent control is withering.
          b. Implied warranty of habitability – same debate as that of rent control.
          c. Govt assisted housing programs – types available:
                      i. Project subsidies – tied to specific dwellings, i.e. traditionaly public housing so if
                         recipient leaves subsidized dwelling, subsidy is forgone.
                     ii. Housing allowances – given accdg to need but for housing only. Money tied to
                         recipients who can take subsidy w/ them when they move.
                    iii. Income maintenance programs – unrestricted cash payments to needy recipients, who
                         can spend $ as they wish.
    4. Schill article: Case of Public Housing (1990) (CB 541)
          a. Justifications for govt intervention in housing market
                      i. Inelastic market in short run – Absent govt intervention, housing mrkt may fail to
                         generate optimal amt of housing. Housing supply is relatively inelastic in the short run
                         b/c of length of time required for site selection, financing and construction.
                     ii. Existence of substandard housing – can drag down community property values and
                         discourage investments in area
                    iii. Non-economic factors
          b. Thesis: public housing solutions should be directed to subsidize demand (dd orientation), and
                leave the supply side (construction of addnal housing) to private sector.
                      i. 1930s – PH as temporary refuge for ―submerged‖ middle class, until they get back on
                         their feet.
                     ii. 1950s – PH as permanent home to very poor people who are disproportionately
                    iii. Today – public housing makes up about 1.5% of nation‘s housing stock and inhabited
                         disproportionately by poor and minorities. In much better condition than its image says.
                    iv. Still need for public sector to assist low income hseholds to obtain adequate &
                         affordable hsing.
          c. Suburbanites want to protect property values. Stereotypes of low-Y people (racism, crime).
                Protecting prop values becomes self-fulfilling prophecy  white flight.

  1. Kennedy article: Effect of Warranty of Habitability on Low Income Housing – “Milking and Class
      Violence” (1987) (Anth 180)
          a. Thesis: Enforcement of a nondisclaimable W of H in leases of low income housing MIGHT,
             under particular market and institutional circumstances, benefit low income tenants at the
             expense of their landlords. Sees Implied W of H as as extending building’s lifespan   or
             keeping housing supply steady. Also RATIONAL actor approach.
                  i. Enforcing a code or warranty should prevent milking of buildings, prolong building life,
                     and increase housing supply.
Property Outline, Prof Hernandez, Spring 2001                                      last updated: 4/29/01             39

                    ii. Filtering – new housing becomes available through trickle down effect.  today‘s poor
                        often live in housing built for an earlier middle class.
                   iii. Milking – LL‘s behavior or reducing maintenance below the level necessary to keep a
                        building in existence as a residential unit. Milking LL treats his property as a waste,
                        rather than a renewable asset.
           b. Milking ALWAYS decreases building‘s lifespan. May be rational choice in some cases. But
               even with enforced warranty, length of increased lifespan is indeterminate. However, if the
               warranty extends building life, it should also depress rents (by increasing housing supply) –
               viewpoint not often contemplated in mainstream economics.
           c. Focuses on community impact. If everyone has run-down building, then the 1 LL who
               maintains has a disincentive to do so b/c of  property values. Wts selective enforcement of W
               of H. This is where govtal involvement may be helpful at countering communal deterioration.
               May also even out bargaining power btw LL & T.
           d. Acknowledges that racism is already part of the market. Use of proxies (race/gender) is a given
               so W of H can serve as a constraint on the effects of the proxies.
           e. Race further harms the low-Y housing market. Gives LL more incentives to milk/under
               maintain. T has less barg power b/c those few units, however dilapidated, still have mrkt value.
    2. Federal “Open Housing” Controls – housing discrimination was the last major area of public life to be
       dealt with by fed civil rights statutes and S.Ct. deicisions. Still have continuing patterns of racial
       segregation in all major urban areas.
            a.   Lamb article: Congress, Courts, and Civil Rights – Fair Housing Act of 1968 Revisited (1982) (Anth 192)
                      i. Recounts some of the difficulties in getting Congressional action on housing legislation.
                     ii. Congress as an unlikely body to provide the type of leadership and direction necessary to
                         overcome discriminatory housing practies & residential segregation.  too much bargaining,
                    iii. MLK‘s death in 1968 spurred the passage of Civil Rights Act of 1968.
          b. Calmore article: Fair Housing v. Fair Housing – Problems w/ Providing Increased Housing
               Opportunities Through Spatial Deconcentration (1980) (Anth 195)
                    i. Part of ongoing debate abt wisdom of devoting large amts of energy on trying to
                       disperse Afr-Amer in largely white communities.
                   ii. Policy of spatial deconcentration – policy of dispersal to intergrate neighborhoods.
                  iii. Thesis: Goal of integrated housing stopped building housing where it was viable and
                       didn’t build enough in suburban areas where such housing was met with resistance.
                           1. spatial de[] is often merely a re-[] of people in different space.
                           2. having only integrated society as SINGLE goal of housing is harmful. Areas
                                where pub housing already exists is very segregated. So if follow goal of
                                integration, then won‘t put new housing in that area. Move housing into new
                                area.  HUD ended up turning down requests to build in segregated areas and
                                didn‘t build enough housing in suburban areas b/c of community resistance.
                           3. may weaken nonwhite political power, sense of community, culture, and
                                neighborhood-based support systems.
    3. Socialism in Cuba – Reforms instituted to combat housing shortage for low-income renters:
          a. No one can be evicted.
          b.  in all rents in relation to tenant‘s income.
          c. Over time, tenants converted into homeowners as rents are put towards payment of home.
                    i. Redistribution of wealth!
                   ii. BUT constraints on ownership! Can only own UNIT, not the land underneath. This
                       means that the govt has first dibs on re-purchase of unit. Also, citizens can only own
                       max of 2 homes – 1 home + 1 vacation home.
          d. Reform results:
                    i. Majority of Cubans are homeowners.
                   ii. Low rate of homelessness.
                  iii. By 1979, more blacks in Cuba owned homes than in any other country.
Property Outline, Prof Hernandez, Spring 2001                                  last updated: 4/29/01           40


Externalities – exist whenever some person makes a decision about how to use resources w/o taking full
account of the effects of the decisions.
    1. The presence of external costs & benefits is esp impt to understanding the role of property institutions in
        controlling conflicting uses of land.
    2. Land-use activities = paradigm case of externalities. Factors to consider:
            a. Economics
            b. History – changing times and attitudes impt to developments in land use
            c. Politics – esp wrt zoning and related devices
            d. Fundamental questions of distributional justice and basic fairness.

   1. Nuisance = process of ―judicial zoning.‖ Judges trying to resolve land-use conflicts in a manner that
       accommodates the divergent needs and wants of a given community.
           a. Dispute btw two separate property owners with respect to two separate parcels.  2 fee simple
              owners wanting to main their sole & despotic ownership.
           b. Lies at the boundary of tort law & property law. Property law focuses on the way an owner has
              a particular right to a property. Torts looks at the other side – people‘s duty NOT to invade the
              rights of a particular owner.
           c. One alleging a nuisance is also a nuisance to the one committing nuisance  reciprocal nature
              of rights and duties.
           d. Substantial non-trespassory invasion of use & enjoyment of land caused by activities that
              are (1) intentional and unreasonable; OR (2) negligent, reckless, or abnormally dangerous.
              (Classic textbook rule from Morgan) What does ―unreas.‖ mean? Look at LEVEL of
              interference resulting from conduct.
                    i. Trespass  Nuisance
                   ii. Trespass  physical invasion of land
                  iii. Nuisance  invasion through intangibles (odors, noise, vibrations)
                  iv. Intentional nuisance more impt for property law – role of property owner takes center
                       state. Unintentional nuisance more for tort law – harms caused to virtually anyone by
                       virture of conduct.
   2. Nuisance Test (Private & Intentional Nuisance):
           a. Unreasonable conduct
           b. Which substantially interferes w/ the use and enjoyment to the average person of ordinary
           c. Unreasonable use factors: (no one factor over-riding; very fact-specific)
                    i. Depreciation in property value
                   ii. Discomfort
                  iii. Fear
                  iv. Character of neighborhood
                   v. Social value of use
                  vi. First-in-time
                 vii. Alternative methods
   3. Private nuisance – unreasonable interference w/ use and enjoyment of land.
           a. Must have substantial harm caused by intentional and unreasonable conduct OR by conduct that
              is negligent, reckless, or abnormally dangerous.
           b. Only owners of interest in land can bring suit.
   4. Public nuisance – invasion of public rights.
           a. act that interferes w/ gen community interests or the comfort of the public at large. (Ex. air
              pollution, loud noises, houses of prostitution, public gaming) Factors:
                    i. interference w/ public health, safety, peace, comfort or convenience
Property Outline, Prof Hernandez, Spring 2001                                   last updated: 4/29/01           41

                     ii. statutorily prohibited or prohibited by ordinance
                    iii. continuing nature of conduct or produce permanent/long-lasting effects
    5. Morgan v. High Penn Oil Co (1953) (CB 741) – Trailer park owner sued for injunction against operator
       of a nearby oil refinery which produced nauseating fumes.
           a. Held: for trailer park owner. Injunction granted. A private nuisance occurs when there is
                substantial interference w/ the use & enjoyment of land, and that interference is either
                intentional and unreasonable or unintentional and the result of negligence, reckless, or
                abnormally dangerous activity.
                      i. Oil refinery which emitted nauseating gas odors is a nuisance per accidens (nuisance
                         in fact) even though it was not constructed or operated in a negligent manner.
                              1. Oil Co‘s gases (intentional & unreasonable) substantially impaired ‘s use and
                              2. the refinery in same way and will continue to inflict injury unless  is enjoined.
                                  Unreasonable use factors for   first in time, investment on land,  in
                                  property value & business value, discomfort, character of neighborhood
                              3. Negligence is not a requirement to intentional nuisance BUT negligence can be
                                  a factor to see if a conduct is unreasonable or not.
                     ii. Every person should use his or her own property so as not to injure another.
           b. Nuisance per se (nuisance at law) – act, occupation, or structure which is a nuisance AT ALL
                TIMES and under any circumstances, rgdless of location or surroundings. ―Absolute nuisance.‖
           c. Nuisance per accidens (nuisance in fact) – nuisances by reason of their location, or by reason
                of the manner in which they are construct, maintained or operated.
    6. Lateral and Subjacent Support – at CL, owner had right to have land laterally & subjacently
       supported by neighbors. Absolute right, i.e. strict lability. Over time, split over such support as concern
       shifted to the structure ON the land. Issue raised in connection w/ nuisance – close cousins.
           a. Lateral Support – refers to that provided one piece of land by the parcels of land surround it.
                      i. CL imposed duty on neighboring land to provide the support that the subject parcel
                         would need and receive under natural conditions.  no right to support of structures on
                         the land. Liability is absolute. Negligence need not be shown.
                     ii. Right of lateral support can be waived.
           b. Subjacent Support – refers to support from UNDERNEATH as oppose to the sides. Issues
                arise when one person owns surface rights and another owns some kind of subsurface rights
                such as a mineral interest.
           c. Majority (Amer) – recovery limited to damages to land only, UNLESS there was negligence.
                Then liable for land and structures on land.
           d. Minority (Eng) – recovery includes damages to land AND artificial structures on it.

  1. Four types of remedies
         a. Injunctions – stop the bad activity. (ex. Estancias, Morgan)
                  i. Injunctions are for sale by . Bargaining!  expects to dd enforcement of the injunction
                      only if  refuses to pay a good price for ‘s consent to dissolve the injunction.
                 ii. Monetary damages can be awarded in addition to injunctive relief.
         b. No injunction – ( wins under property rule) activity continues; all relief denied
         c. Damages (permanent) -  pays $ to  and  continues the activity (ex. Boomer). Includes past
             injuries + present value of all future injuries from use of nuisance, in lieu of injuntive relief.
                  i. Binds homeowners & future grantees (can‘t bring same suit.)
         d. Buy the injunction – abate the activity if  pays damages (ex. Spur)
  2. Estancias Dallas Corp v. Schultz (1973) (CB 753) –  sued  to permanently enjoin them from
     operating excessively loud A/C equipment on a neighboring building.
         a. Held: for  – permanent injunction is proper only after a balancing of equities (i.e. consider
             harm to  and public that would result if injunction granted v. harm to  if injunction is denied.)
Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01          42

                      i. An injunction will be denied ONLY IF the necessity of others compels an injured party
                         to seek damages and not b/c the party causing the nuisance has the right to work a hurt
                         or injury to his neighbor.
                     ii. Here, no evidence that the public would suffer or have no place to live if the apt
                         complex had to go w/o the noisy air conditioning system.
                    iii. Court placed weight on the fact that  was in the area first, mentioning that the area was
                         a quiet neighborhood until apts were built. Less important was how much it would cost
                          to abate the nuisance.
           b. Balancing of equities – also called ―comparative hardship‖ or ―equitable hardship.‖
                      i. Efficiency objective  avoid the greater harm (or social cost)
                     ii. Critique – compares the general loss to the public (loss of jobs) but only considers
                         specific loss to private land owner (specified money damage to his property)
                         notwithstanding the fact that he may be damaged in ways that cannot be translated into
                         specific damages.
    3. Boomer v. Atlantic Cement (1970) (CB 758) – Cement factory and neighboring residents. Lower court
       found cement plant constituted nuisance but denied injunction. Classic case in devpt of nuisance law.
           a. Held: for  – grants injunction against Atlantic Cement UNLESS Atlantic pays permanent
                damages to the neighboring landowners. (Essentially, temporary injunction that will be vacated
                upon payment of damages)
                      i. Reflects classic conflict btw environmental and economic interests.
                     ii. Departure from NY‘s old rule  grant injunction if subst injury more than $100. Old
                         rule only asks: is there a nuisance. (now ask, if there‘s nuisance and appropriate remedy
                         – looks at consequences, ex. will it shut factory down)
                    iii. Damages is price set by the court.
           b. Rule: Courts can grant an injunction conditioned on the payment of permanent damages to a
                complaining party in order to compensate him or her for the impairment of property rights cause
                by a nuisance.
           c. Dissent: Sees award of permanent damages as court licensing a permanent wrong – factory can
                continue to pollute as long as it pays for it.
    4. Spur Industries v. Del Webb (1972) (CB 765) – Spur () is cattle feed ranch, emitting foul odors.Got to
       area first. Del Webb () developed community near Spur‘s ranch. Sues Spur for nuisance. Got
       injunction and Spur now appeals. (Coming to the nuisance case)
           a. Held: for Del Webb but  has to pay Spur damages for shutting it down.
                      i. An otherwise lawful activity can become a nuisance b/c others have entered the area of
                         activity, and so the party causing the nuisance may be enjoined.
                              1. First-in-time (ranch) important but not dispositve. Del Webb brought the land at
                                  a discount so court doesn‘t want it to get away with the windfall
                              2. First in time  foreseeability of victim (developer) in connection with lack of
                                  foreseeability of wrongdoer (ranch did not foresee towns developing around it
                                  as it was originally very rural area).
                     ii. Party requesting the injunction can be required to provide compensation for the cost of
                         moving or shutting down the activity.
                    iii. Spur has to move b/c of overriding public interest; did nothing wrong. (Ct engaging in
                         judicial zoning!) But Del Webb has to pay the costs of shutting Spur down. What‘s
                         ―reasonable‖ costs though?
           b. Spur was considered both a public and private nuisance.
    5.   Nuisance Law and Environmental Controls
             a. Nuisance litigation has a limited place in environmental control.
                      i. Expensive, cumbersome to litigate.
                     ii. Best for small-scale, incidental, localized, scientifically uncomplicated pollution probs.
             b. Alternative: judicial and administrative intervention
Property Outline, Prof Hernandez, Spring 2001                                           last updated: 4/29/01                43

                      i. Regulatory (command system) – tells polluters sources how much, and sometimes how, to
                         control. Prohibits certain activities, requires installation of prescribed technologies, and sets stds
                         limiting emissions from pollution sources. Enforced thru civil & crim sanctions.
                              1. Easier to monitor, more direct, and more certain.
                     ii. Incentive systems – rather than command, they induce.
                              1. Ex. emission fee; marketable or transferable rights (trading pollution rts)
                              2. More decentralized approach  sources w/ low control costs will control to greater
                                  degrees than sources facing higher costs  total outlay for gn level of quality will be
                                  minimized. Encourages more technological innovation.

   1. Calabresi & Melamed: Property Rules, Liability Rules, and Inalienability – One View of the Cathedral
      (1972) (Anth 379) – sets most of the ground rules for debate over nature of and remedies for nuisances.
          a. Two questions:
                    i. Who gets entitlement?
                   ii. How to protect it?
          b. Three types of entitlements:
                    i. Property – someone who wishes to remove the entitlement from its holder must buy it
                       from him in a voluntary transaction. Least amt of st intervention.
                   ii. Liability – someone destroys entitlement if he is willing to pay an objectively
                       determined value for it. Addnal level of st intervention.
                  iii. Inalienable entitlements – transfer not permitted btw willing buyer and willing seller.
          c. Reasons for entitlements:
                    i. Econ efficiency  minimize admin costs of enforcement; achieve Pareto optimality
                   ii. Distributional goals  which entitlement a society decides to sell and which it decides
                       to give away depends in part on which determination promotes the wealth distribution
                       the society favors.
                  iii. Placement of entitlement has a fundamental effect on wealth  richer person will have
                       greater bargaining power  determines relative bargaining power of the parties.
          d. Framework – 4 rules
   2. Farber: Reassessing Boomer – Justice, Efficiency, and Nuisance Law (1988) (Anth 387) – argues that
      nuisance victims (Boomer victims) should be presumptively entitled to an injunction.
          a. Injunctions better than damages.
          b. Damages only compensates for the economic loss but doesn‘t account for the more fundamental
              injury to victim‘s dignity as a member of the community.
          c. Injunctive remedy upholds the dignity of the victims as members of the community. Also gives
              the victims control over the situation. If Atlantic Cement wtd to continue its operations, then it
              had to go to the neighbors and bargain w/ them as equals.
                    i. Concerned about ―norms of neighborliness.‖
                   ii. Both Farber and Calabresi say the same thing  favor property rule over liability
                       rule as injnx gives victims more equal bargaining power.
   3. Hardin: The Tragedy of the Commons (1968) (Anth 392) – discussion of the economics of using
      resources (like the air or the sea) which are freely accessible at a low cost to the user.
          a. Tragedy  each man is locked into a system that compels him to increase his herd w/o limit, in
              a world that is limited. Freedom in a commons brings ruin to all.
                    i. Only a tragedy where people maintain the same cultural perspective as it relates to the
                       thing held in common. (ex. shift from use of deodorant spray to deodorant stick) Want
                       to make people internalize the externalities.
          b. Options to prevent tragedy:
                    i. Sell commons off as private property
                   ii. Keep as public property but allocate the right to enter them – re-alloaction might be on
                       the basis of wealth, by the use of an auction system or on the basis of merit by some
                       agreed-upon standards or first-come first-served basis
     Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01              44

                           iii. These options all have problems but must choose among them or acquiese in the
                                destruction of the commons.


               1. Servitudes – private law device for restricting use of property, in constrast to public law device, i.e.
                     govtal entity restriction. Allows individuals, thru transactions, to impose land-use restrictions. (zoning is
                     the public law device to restrict property use.)
                          a. Creates both a benefit and a burden. Benefit to holder of servitude and burden who has to give
                               right of way.
                          b. Burden on land automatically binds successors to the land, regardless of their consent, UNLESS
                               they are entitled to protection under the recording act.
                                     i. Includes affirmative easements, profits, negative easements & covenants, affirmative
                                         covenants. These are all functionally similar.
                          c. Generally enforceable in court of law as long as it‘s not illegal or against public policy 
                               spiteful, capricious burden on Constnal right; unreasonable restraints on trade/competition.
                          d. Elaborate classification schemes in common law. Modern law, thru Restatement, abolished
                               many of the distinctions. (ex. real covenant – enforced in ct of equity v. equitable servitude –
                               enforced in ct of law)
                          e. RST defn of servitude – private law device that creates interest running with the land.
  Servitudes have to be
                                     i. Interest passes automatically to successive owners of property. (in contrast to license 
  recorded – runs with                   grant of permission to go on someone‘s property for a particular purpose and it‘s
  the land, interest in                  revocable by owner of the land. Servitudes continues in existence; license more
  land  have to be on
  deed                                   temporary in nature.)
               2. Servient estate – land that is subject to, or burdened by, any servitude
               3. Dominant estate – benefited land
                          a. Appurtenant – Have permission to use and enjoy property of another b/c it benefits your own
                               property. Benefit becomes an incident to ownership and passes automaticaly from one owner to
Nature of servitude &          the next. This benefited land is the dominant estate. (Ex. shared driveway btw A & B; A sells
circum of its creation
determines if benefit is       his lot to A‘; deed btw A & A‘ might not even metion the driveway agreement for A‘ to enjoy
appurtenant or in gross.       its benefit.)
                                     i. Where close case btw in gross and appurtenant servitude, there is a presumption of
                                         appurtenant servitude!
               4. Servitude in gross interest – intended to benefit a person (or business) rather than to add to the value
                     of the easement holder‘s land. Doesn‘t necessarily benefit another parcel of land. Doesn‘t tie as directly
                     into land. Holder of in-gross servitude can transfer its benefit freely. (Ex. public utility easement such as
                     water or electric company; big sign on B‘s land doesn‘t benefit B but benefits A) No dominant estate.
               5. Easement – Non-possessory right to enter and use land as granted for purpose specified. Interest in land
                     that is in possession of another, permitting a ―limited use or enjoyment of the land in which the interest
                     exists.‖ Always appurtenant.
                          a. Profit a prendre – form of affirmative easement that privileges its holder to enter another‘s
                               land and remove something of value. (ex. oil, game)
                          b. Affirmative easement – Implicitly requires owner of burdened estate to DO something. Gives
 Today, easements
                               A privileges to enter and make affirmative use of B‘s land and bars B from interfering with use.
 and covenants are                   i. Most easements are affirmative. (ex. paved driveway btw A and B; telephone poles &
 the same.                               wires; rights-of-way; drainage). Always appurtenant.
                          c. Negative easement – Prevents owner of burdened estate from doing something. Entitles B to
                               enjoy an advantage (w/o physical entry) and bars A from interfering w/ that adv. (Ex. A agrees
                               not to build anything that blocks B‘s view)
               6. Covenants – used more broadly. Promises relating to land. (ex. Warranty of Habitability  covenant
                     on part of LL to keep apt in inhabitable condition. W of H is not a servitude b/c this runs with a tenancy)
                     Covenant viewed as servitude when its obligation is a benefit or burden that runs with the land.
Property Outline, Prof Hernandez, Spring 2001                                   last updated: 4/29/01           45

               a. Affirmative covenants – Requires promisor to do something. Ex. A has a duty to spend money
                   and B has a correlative right that A do so.
               b. Negative covenants OR restrictive covenants – Requires promisor to refrain from doing
                   something. ex. A and B mutually agree not to conduct business on their land. RST views this
                   simply as a RESTRICTIVE covenant b/c it limits permissible uses of land.
                        i. Restrictive covenants are at the heart of private land use litigation.
               c. Determined by nature of covenant.
    7.    Personal servitudes – benefit only the original holder and may NOT be transferred, although in some
          instances, the benefit may be shared w/ family, friends, and invitees. Personal servitude can usually be
          discerned from the relationship of the parties and the (absence of) consideration.
    8.    How to Create a Servitude
               a. By contract
               b. By deed  think about recording stuff!
               c. By operation of law  p-estoppel, implication, necessity (i.e. someone who is land-locked),
                   proscription (by adverse possession; but all AP factors don‘t fit neatly into servitude. Need:
                   open & notorious use, continuous manner for entire period of statute.)
               d. If servitude meant to last longer than 1 year, must be in writing to comply w/ Statute of Fraud.
    9.    Rule against perpetuities doesn’t apply to servitudes, even though servitudes can last forever.
               a. RAP applies to interests that harms society at large by interfering w/ commerce. In contrast,
                   servitudes are generally thought to encourage people to buy and sell land  use of land is
                   beneficial to society.   value of property (think of gated communities.)
    10.   RST abolished requirement of privity btw parties that created the servitude. Also no longer requirement
          that servitudes touch and concern the land.
    11.   Private land use alternative: buy fee simple of the entire area.

   1. Hill v. Community of Damien of Molokai (1996) (CB 891) – Residents of a planned community sued to
      enjoin an AIDS group home from occupying one of the houses, based on a ―single family residence‖
      clause in the restrictive covenant.
          a. Held: for AIDS group home. Restricitve covenants w/ discriminatory effect are unenforceable.
                    i. To interpret RC, look first at plain meaning and if ambiguous, restrictive covenants
                       should be construed in favor of the free use and enjoyment of property and against
                       restrictions. Defn of ―family‖ was ambiguous.
                   ii. Restrictive covenants w/ discriminatory effect violate the Fair Housing Act.
                  iii. Residents have the same factors as the generic family unit. Live together, take care of
                       each other. Outside help same as family with handicapped child.
                  iv. Public policy reasons  policy favoring placement of disabled individuals in
                       community living environments outweigh residents‘ concerns re:  traffic. RC doesn‘t
                       even address traffic issues. Also desire to have disabled folks live outside of hospital.
          b. Covenant itself is not invalidated but its scope has been limited.
          c. Court essentially making a fairness determination!
   2. Shelley v. Kraemer (1948) (CB 902) – Landmark decision. Black couple were buying a house while
      unaware of a racially based restrictive covenant on that street; white homeowners tried to stop them.
          a. Held: for black couple.
                    i. Judicial (Missouri S.Ct.) enforcement of a restrictive covenant based on race constitutes
                       discriminatory state action, and is thus forbidden by EPC of 14th Ad.
                   ii. Covenant by itself is NOT unconst‘nal b/c it is an agreement between private parties. If
                       it‘s enforced through private means, it‘s still constitutional. However, where the
                       STATE steps in to intervene/enforce covenant, that becomes violation of EPC.
                             1. Judges (st actors) precluded from engaged in invidious discrimination.
                  iii. Shelleys had no actual knowledge of RC but they had recorded notice, or perhaps even
                       constructive notice.
   3. Other possible ways to invalidate servitude, besides st action:
Property Outline, Prof Hernandez, Spring 2001                                       last updated: 4/29/01             46

            a. Restriction on seller – interferes w/ free use and enjoyment of land; limits transfer of title 
                 interfering w/ freedom of alienation (freedom to sell, transfer, assign, give away your property).
                       i. Freedom of alienation gives pp a way to challenge private racial covenants and other
                          types of restrictive covenants. But no bright line test on how much constraints on FOA
                          b/f servitude is invalidated.
                      ii. Freedom of alienation is the biggest stick in our bundle of property rights.
            b. Freedom of contract – also focus on willing seller and willing buyer.
            c. Importance of home/home ownership. Underlying principle.
    4.   Actual Termination on Servitude – “Extinguishment”:
            a. Expiration of time determined for termination.
            b. Operation of law
                       i. Unification of estates/unity of title of servient & dominant estate. You get fee simple so
                          can use property in any way you want.
                      ii. Acts of owner of dominant estate (person benefiting)
                               1. owner executes written release in compliance with statute of fraud. Release is
                                   the termination.
                               2. owner abandons servitude, evidenced by conduct showing intention to release
                                   the right.
                     iii. Acts of servient estate owner (person burdened)
                               1. use property in a way that violates servitude without permission of dominant
                                   estate for a proscriptive statutory amount of time.  termination by violation of
                                   proscriptive statute (acting adversely)
                               2. Use property inconsistly with servitude. Dominant estate objects at a point in
                                   time when it would be unjust to enforce the servitude  termn by estoppel.
                                        a. Ex. Servient estate has already invested too much $ building new
                                            structure blocking right of way. Dominant sees servient bldg but
                                            doesn‘t complain until building almost finished.
                     iv. Servitude by grant/deed is NOT recorded by dominant owner and land is then conveyed
                          to BFP w/o notice.
                               1. Not applicable to servitudes arising by estoppel or proscription.
                      v. Change in circumstances. Purpose for which servitude was created has disappeared. Ex.
                          servitude to remove gravel from land and all gravel has been removed.
                     vi. Exercise of eminent domain by govt authority.
                               1. Condemnation proceeding and govt use is inconsistent w/ servitude.
    5.   Egan, The Serene Fortress: Many Seek Security in Private Communities (1995) (CB 937)
            a. Private, gated communities are the fastest-growing residential communities in the nation. They
                 are governed by a bunch of covenants, codes, and restrictions so restrictive that many would be
                 unconstnal should a city govt enact them.
            b. Consequences of  private gated communities:
                       i. Balkanization of America
                      ii. Lose larger sense of community spirit – devoid of random human encounters
    6.   Public Gated Residential Communities (1997) (CB 938)
            a. Some reasons why these gated communities are so popular:
                       i. Perception that there is increased protection against crime; but most communities are
                          built in areas that are already low in crime
                      ii. Exclusivity associated w/ residence in such a development
    7.   Gated communities also seen as the newest manifestation of segregation of housing by income level.

   1. Power, Apartheid Baltimore Style: The Residential Seg Ordinances of 1910-1913 (1982) (Anth 116)
           a. Article traces the impact of racial animosity on the development of Baltimore, the city‘s attempt to zone
              by race, and the rise of exclusionary real estate practices and servitude schemes.
Property Outline, Prof Hernandez, Spring 2001                                         last updated: 4/29/01              47

            b.   Even when dual housing mrkt btw B and W was dismantled, residential housing in Baltimore remained
                 by and large segregated. Possible reasons:
                       i. Result of preferences – pp like to live in their old neighborhoods, which developed in the days of
                          de facto segregation
                      ii. Economics – median black family income < median white
                     iii. Black buyers sterred to black neighborhoods; mortgate $ more available to whites
                     iv. Govt tends to select areas of least resistance (usu black ghettos) for public works projects.


   1. Historical Background – Industrialization and the changes it brought made nuisance law and
      servitudes inadequate in solving the problems of such development. Nuisance law did not prevent
      nuisances from araising but merely gave damages or injunctions after the fact. Nuisance was reactive.
      Restrictive covenants were only useful in new subdivisions and other developments of land occurring
      under a single owner, who imposed the covenants. RCs impractical btw neighboring towns.
   2. Zoning  theory designed to PREVENT harmful effects being visited upon neighbors.
          a. Legislative land use control that puts into effect a specific plan that would have optimal social
               utility for that area. So plans can vary from town to town.
                     i. Cumulative zoning (Euclid) – rank order from least to most harmful; must have
                         conception of public good. Allows in mixed uses.
                             1. Is this more choice for developers or less?
                             2. Low-income pp tend to live in the more mixed/less desirable areas.
                    ii. Non-cumulative zoning – completely segregated districts, i.e. no single family homes
                         can in an industrial park.
                   iii. Both types address gradations of conflicting uses of land.
          b. Zoning is essentially a ―means to an end.‖ Plan already envisioned b/f zoning occurs.
          c. Exercise of police power thru an enabling act from the state. Can only have an appropriate and
               reasonable exercise of power.
          d. Principles underlying Howard‘s (Garden Cities) ideal community: (pastoral ideal)
                     i. Separation of uses
                    ii. Protection of single-family home
                   iii. Low-rise development
                   iv. Medium-density of population
          e. Zoning spread rapidly after 1916.
   3. Village of Euclid v. Ambler Realty Co (1926) (CB 950) – First S.Ct. case endorsing modern zoning.
      Meant to be a test case. Realty company challenged a municipal ordinance which established a zoning
      plan restricting the use and size of bldgs in various districts. There was 75%  in property value after
      the ordinance was put into place.
          a. Held: for city ordinane  municipal zoning ordinance which creates and maintains different
               types of residential districts, while excluding biz from such districts, is constitutional.
                     i. Zoning ordinances are a valid exercise of the police power and thus do not violate the
                         constitutional protection of property rights.
                    ii. Analogized w/ nuisance law re: scope of power  ordinance interfered w/ free use of
                         land. Bad analogy b/c here, Realty has not used the property yet. Zoning is prospective
                         and in nuisance, harm has already been done.
                   iii. Balancing potential harm to Realty v. health and safety of public in general.
          b. Four dominant themes in legislative zoning:
                     i. City allowed to exclude some uses of property in certain circumstances.
                    ii. City, by zoning, can control economic markets by designating where areas of trade can
                         be set up.
                   iii. Emphasis on local control in zoning measures.
Property Outline, Prof Hernandez, Spring 2001                                    last updated: 4/29/01            48

                     iv. Some emphasis on aesthetic values, and how these can be a valid basis for a zoning
                          ordinance in the appropriate context.
            c. Other relief measures, limited, for Ambler Realty
                       i. Realty can later say that after developing land, particular section of zoning ordinance as
                          applied to him is unconstitutional.
                      ii. Realty can also try to get an exemption and amendment to the ordinance.
            d. Anthology reading shows that Euclid characterized nuisance in a very particular way –
                comparison of single family homes v. pp who live in big apts (who tend to be poor); rather than
                talking about big smoke stacks. Realty Co did not make a big issue of 2-family dwellings also
                excluded from single family districts. This distinction would have been harded to make and the
                lack of this issue made the judges‘ jobs easier.
    4. Structure of Authority Underlying Zoning
            a. Zoning is an exercise of POLICE POWER  power of govt to protect health, safety, welfare
                and morals. Generally, policy power is in state power but in the case of zoning, all states have
                adopted enabling acts that delegate zoning authority to local govts. (ex. Standard State Zoning
                Enabling Act)
    5. Jackson, Crabgrass Frontier: The Suburbanization of the US (1985) (Anth 407) – story of zoning and
       its effects in Baltimore.
            a. Characteristics of post-war suburbs: (1) Peripheral location (2) Relatively low density (3)
                Architectural similarity (4) Easy availiaby and  reduced suggestion of wealth (5) Economic
                and racial homogeneity
            b. Although zoning, in theory, was designed to protect the interest of ALL citizens by limiting
                land specuation and congestion, in actuality, zoning was a device to keep poor people and
                obnoxious industries out of affluent areas.
                       i. Implicates entire modern doctrine of zoning  ―pastoral living‖ can only be afforded
                          by the wealthy.
                      ii. Furthers segregation and exclusion.
                     iii. FHA supports modern zoning b/c of the way mortgages were given  easier to buy
                          new than to repair.
            c. Mvt towards suburbs also weakened extended family ties in America. Nuclear families grew.

  1. Zoning – straighforward doctrine but not much predictive value.
  2. Nonconforming use – use in existence b/f zoning ordinance enacted and it‘s no longer premitted; not
     immediately abolished once zoning comes into effect.
        a. Public policy reasons for allowing non-conforming use:
                  i. Private property encourages pp to be industrious w/ their land, and in the end, create
                     more jobs, more wealth  better for society.  to completely abolish non-conforming
                     use might deter someone from investing in the land or a new business.
                 ii. Non-conforming user has a vested right; use is NOT unlawful. First-in-time so have
                     vested right to continue in that use.
                iii. Balancing approach of property ownership.
        b. Runs w/ the land, i.e. survives a change of ownership b/c the use is particular to the LAND.
            Enhances property value, gives you more leverage when you want to sell land.
        c. Termination of nonconforming use:
                  i. Built-in obsolescence/expiration date. If no such date, other possible mechanisms to get
                     rid of non-conforming use:
                 ii. Abandonment by owner  idea is that if property was important, owner wouldn‘t
                     abandon it. As owner, have obligation to be diligent. Use it or lose it. However, not
                     many pp abandoning.
                iii. Forbid maintenance and repair of property  but end up exposing community to ugly
                     and unsafe non-conforming uses. May have gotten rid of some NCU‘s.
      Property Outline, Prof Hernandez, Spring 2001                                        last updated: 4/29/01             49

                                iv. Expanding the scope of the use  bigger store, increased business
                                 v. Amortization  gradual extinguishment of a debt over time. Put into zoning
                                     ordinance. Provides a certain amount of time when NCU must come to an end.
                                          1. If amount of time is reasonable, both owner and community benefit from
                                              having standardized zoning. However, legal challenges to amortization arose.
                                          2. If amortization ont reasonable, owner can continue the use.
                       d. Ways to keep NCU: (have to petition for both)
                                  i. Variance – individual property owner seeks RELIEF b/c ordinance puts undue
                                     hardship on owner
                                          1. use variance – most typical; gives relief from particular restriction; relaxes
                                              restrictions on permissible uses in a particular area.
                                          2. area variance – setback requirements and the like
                                 ii. Special-use exception – mechanism for diverging from ordinance that is built into
                                     ordinance itself. Lower burden of proof on  than that of variance.
             3. PA Northwestern Distributors Inc v. Zoning Hearing Board (1991) (CB 965) – Challenge to
                   amortization. After an adult bookstore was opened, a local zoning board enacted an adult business
                   ordinance which gave the bookstore operator only ninety days to comply.
                       a. Held: for P (adult bookstore). Zoning ordinance that regulated adult businesses and gave an
                            adult bookstore owner a 90-day amortization period in which to comply with the ordinance was
                            an unconstitutional taking of property w/o just compensation.
                                  i. A zoning ordinance is presumed to be valid. But presumption must be balanced against
                                     an individual‘s constitutionally guaranteed right to use property w/o govt restrictions,
                                     except when use creates a nuisance or violates a covenant, restriction, or easement.
                                 ii. Analogized to takings. Amortization was just a guise for the taking.
                                iii. A taking is not limited to an actual physical possession or seizure of the property. If the
                                     effect of the zoning law is to deprive a property owner of the lawful use of his property,
                                     it amouts to a taking, for which he must be justly compensated.
                       b. Concur: Disagrees that any provision for the amortization of nonconforming uses would be per
                            se confiscatory and unconstitutional. This would be too restrictive since amortization provision
                            is an effective way to reconcile interets of the community with that of the property owner. But
                            in this case, believes the 90-day period is too short.
                       c. Factors usually listed as relevant to assess whether amortization period is reasonable are:
                                  i. Nature of the use in question
                                 ii. Amount invested in it
                                iii. Number of improvements
                                iv. Public detriment caused by the use
                                 v. Character of the surrounding neighborhood
                                vi. Amount of time needed to amortize the investment
             4. Commons v. Westwood Zoning Board of Adjustment (1980) (CB 976) – Variance case. A builder
                   trying to construct a home on a lot that was below the local zoning ordinance‘s minimum size
                   requirements was denied a variance. P appeals.
Test - undue hardship:
                       a. Held: for P and remanded to Board.
 Undue hardship                  i. Board has power to grant a variance where, b/c of some exceptional circumstance of the
 Intent to mitigate                 property, the strict application of a zoning ordinance would result in undue hardship
                                     unpon the developer of the property, and the variance would not substantially impair
 Would not infringe on
  safety/public health               the public good and the intent and purpose of the zoning plan and ordinance.
                                 ii. Undue hardship – no effective use can be made of prop in event the variance is denied.
                                iii. Here, denial of variance was not valid b/c the applicant (P) presented evidence of undue
                                     hardship and the Board gave no explanation as to why the variance would substantially
                                     impair the intent of the zoning ordinance.
                                iv. P tried to sell the land but deal fell through and then tried to buy extra land from another
                                     neighbor but that didn‘t work either.
Property Outline, Prof Hernandez, Spring 2001                                 last updated: 4/29/01           50

    5. Cope v. Inhabitants of the Town of Brunswick (1983) (CB 984) – special exception case. Two apt
       builders appealed a local zoning board‘s decision to deny them a zoning exception to construct multi-
       unit apartment building in town.
           a. Held: for P. Ordinance is in part unconstnal b/c it improperly delegates legislative authority to
               the Brunswick Zoning Board.
                    i. The power to regulate private property cannot be delegated from the legislature to a
                       municipality or from a municipality to a local administrative body without a sufficiently
                       detailed statement of policy to provide a guide to reasonably determine an owner‘s
                       rights and prevent arbitrariness.
                   ii. By enacting the ordinance, the voters of Brunswick determined that an apartment
                       building was generally suitable for location in a suburban residential zone.
                            1. Special-use exception was IMPLICITLY agreed upon by the public. So to
                                forbid the special use, must be more specific and power to do so must also be
                                more specific.

(Aesthetic Regulation)
   1. Aesthetic zoning – architectural design restrictions, anti-billboards, historical areas, etc…
            a. Initially, courts invalidated aesthetic codes b/c they were not deemed to be w/in the police
               power of the state and  violation of substantive DP. Saw aesthetic zoning as a way to invite
               arbitrariness since it was trying to use objective standards for ―general welfare aesthetics.‖
            b. Now, courts more favorable towards such codes.
                     i. General standard: prohibit use which offends the sensibilities of the average person
                        AND whether the use depresses property values in the area.
                    ii. Property values used as mechanism to be objective.
   2. State ex rel. Stoyanoff v. Berkeley (1970) (CB 1012) – Compatibility regulation of residential
       building. Stoyanoff wtd to build a pyramid-shaped house in a neighborhood w/ more traditional-looking
       houses, but the city building commissioner refused to issue him a building permit.
            a. Held: for city – building permit denied b/c the proposed house design would destabilize
               property values in the area.
                     i. An architectural review board may deny a permit structure if it would be unsuitable in
                        appearance w/ the character of the surrounding neighborhood and thus adversely affect
                        the general welfare and property values of the community.
                    ii. Aesthetic factor is not the only factor considered.
                   iii. Preservation of property values is one of the most important reasons to have zoning in
                        the first place. The public (general welfare) is also harmed by  property values b/c it
                        can affect tax base of the community as a whole.
                             1. Court gave primary importance to land value but there was no empirical study
                                  to back up fact that pyramid house would  property values.
                             2. May also end up zoning particular kinds of people. Sounded like a rich,
                                  conservative and exclusive community.
   3. Anderson v. City of Issaquah (1993) (CB 1020) – Anti-look-alike regulation. Architect appealed the
       denial of a construction permit, arguing that the subjective aesthetic standards used by the city building
       commission were unconstitutionally vague. Architect modified his design 3 times per their suggestions
       and spent $250,000 but permit was nonetheless denied. Among other things, Code required that
       buildings be interesting and harmonious w/ the surrounding valley and mountains.
            a. Held: for Architect – municipal building ordinance is too vague.
                     i. Local building ordinances that impose aesthetic conditions must provide sufficiently
                        clear guidance to all interested parties.
                    ii. Note that aesthetic standards ARE an appropriate and important component of land use
                        governance. But here, the words employed in the Code are not technical words which
                        are commonly understood w/in the professional building design industry. Netierh do
                        they have a settled common law meaning.
Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01                 51

             b. Case demonstrates how hard it is to effectively draft an aesthetic ordinance, which is necessarily
                based on subjective evaluations. Some commentators feel that municipal design review
                committees stifle the creative expression of architecture and lead to a boring ―sameness.‖
    4.   Private architectural restrictions are governed by a different std than public restrictions. Cases have held that
         specific stds are not necessary where architectual approval is required by a private covenant.
    5. City of Ladue v. Gilleo (1994) (CB 1031) – Distinctiveness of political expression. Resident
       challenges city ordinance that prohibits displaying of signs, such as antiwar protest sign, on front yards.
           a. Held: for resident (P) – the ordinance prohibiting homeowners from displaying virtually any
               signs on their property is not constitutional.
                    i. Two analytically distinct grounds to challenge constnality of ordinances re: signs:
                            1. restrict too little speech b/c its exemptions discriminate on the basis of the
                                 signs‘ messages
                            2. prohibit too much protected speech
                   ii. Here, ordinance discriminates. Sign ordinance may be based on a desire to minimize the
                        visual clutter associated w/ signs but it is not sufficient enough to overcome the
                        ordinances chilling effects on free speech.
                            1. Typical individual doesn‘t have access to many means of free speech – ex.
                                 airtime on TV too expensive. But sign on yard is owner‘s property right and
                                 also way to express self.
                  iii. Balancing test btw indiv‘s 1st A right and city‘s interest in enforcing no-sign ordinance.
                            1. Here, affecting ‘s ability to use her property.
                            2. Expansive perspective on role of property  relationship btw pp; way of
                                 facilitating civic rights (ability of citizen to express self politically.‖
    6. Rarely see an aesthetic challenge by itself. Typically included w/ public welfare/health/safety.

  1. Village of Belle Terre v. Boraas (1974) (CB 1042) – Boraas (college student) and five others challenged
     a Belle Terre ordinance which restricted land use to one-family dwellings and excluded households w/
     over tow unrelated persons.
         a. Held: for village – upheld zoning ordinance‘s attempt to promote family values.
                   i. Broad defn of public welfare – quietness, family values, etc… Single family home is at
                      center of most zng regs so need to see what family is for the purposes of the ordinance.
                  ii. The legislature may define what counts as a ―family‖ for zoning purposes if the
                      definition is rationally related to legitimate objectives, such as creating zones where
                      family values and the blessings of quiet seclusion and clean air are preserved.
                           1. no fundamental interest involved.
                           2. view that pp who rent see rental only as temporary home and  won‘t take as
                               much care of the home
                           3. note that besides college students, decision will affect non-traditional families.
                 iii. Here, a line is drawn btw 2 unrelated people and three or more unrelated pp in the defn
                      of ―family.‖ Discretion in setting this line belongs to the legislature.
         b. Dissent (Marshall): Classification burdens the students‘ fundamental rights of association and
             privacy as guaranteed by the 1st and 14th amendments. Court has an obligation to ensure that
             zoning ordinances, even when adopted in furtherance of legitimate aims, do not infring upon
             fundamental constitutional rights.
                   i. Ordinance singles out those pp who choose to live their lives in a manner that differs
                      from that of current residents.
                  ii. Underinclusive  does not impose limits on occupancy by pp who are related nor does
                      it impose restrictions on the number of cars owned by members of one household.
                 iii. Overinclusive  excl large number of unrelated persons who can live together, even if
                      they had only one income and no vehicles to contribute to traffic and space probs.
   Property Outline, Prof Hernandez, Spring 2001                                     last updated: 4/29/01             52

                   c. These ordinances typically have exemptions for household employees. Unclear abt whether
                      foster kids are also exempted. Way to get around it is to apply for variance (not very flexible) or
                      special use exception or petition for amendment in regulation itself.
         1. S.Ct. curtailed reach of Belle Terre in Moore v. Cleveland (CB 1050)
                   a. Ordinance in Moore struck down. It‘s defn of family was so restricted that even a grandmother
                      living w/ her two grandsons (by her two sons) was held in violation of the ordinance.
                   b. In striking down ordinance, court stressed the importance of the extended family. Focus on
                      nuclear family was inappropriate. Consequently, defn of family for zoning purposes broadened.
                   c. Note also that some states‘ constitutions have provisions that get around Belle Terre.
         2. City of Edmonds v. Oxford House Inc (1995) (CB 1053) – City sued to enforce its residential single-
              family zoning restrictions against a group home for recovering alcoholics and drug addicts.
                   a. Held: for Oxford House – single-family zoning restriction is not automatically exempt from
                      Federal Housing Act scrutiny, even if it indirectly limits the max number of occupants in house.
                            i. City‘s zoning ordinance defined family as any number of persons related OR a group of
                               five or fewer unrelated persons.
Examples of where
                           ii. FHA‘s goal is to provide for fair housing. Maximum occupancy restrictions cap the
we‘ve seen FHA:                number of occupants in relation to floor space to protect health and safety. This is not
 Landlord-Tenant              subject to FHA scrutiny.
 Servitudes (AIDS
  Community House)
                                   1. Under FHA – don‘t need discriminatory intent. EFFECT is enough!
 Zoning                           2. Occupancy cap – can seem neutral but can also be problematic for
                                        enforcement purposes.
                          iii. Here, however, the ordinance doesn‘t cap the number of pp who live in a dwelling for
                               health reasons. Rather, the cap is based on unrelated v. related pp. Doesn‘t answer the
                               question ―What is the max number of pp permitted to live in a house?‖  the city‘s
                               single-family occupancy restriction does not qualify for FHA exemption.
                          iv. Case chips away even more at Belle Terre‘s defn of family.

   Zoning is meant to be exclusionary.
       Good things abt zoning  land-use planning; beneficial environmentally; design roads to foster sense of
           community and built-in public transportation system
       However, it has been used to keep certain types of people out (gated communities).
              o ―Exclusionary zoning‖ is zoning that has a disproportionate impact on low-income home
                  dwellers. St cts have been more pro-activie in deatling with this.
              o When do you have a legal problem w.r.t. FHA?
              o When do you have a legal problem w.r.t. US Constitution?


   Protecting some property uses while simultaneously depriving others.

      1. Eminent domain – forced judicial sale. Govt taking property from its owners and reallocating it to
         govtally preferred uses; power of government to force transfers of property from owners to itself. (Ex.
         construction of public highway, power lines.)
             a. Power of Eminent domain viewed as inherent to the sovereign.
                      i. Constnal basis  5th Amendment‘s Takings clause for ―public use.‖ Generally taken as
                          meaning that govt can only take for public use and not ―private use.‖  5th A validates
                          and constrains exercise of Eminent Domain.
                     ii. Private property cannot be taken for public use unless just compensation is provided.
                          Govt must provide a rationale for the public use.
             b. Extent of power
 Property Outline, Prof Hernandez, Spring 2001                                     last updated: 4/29/01            53

                         i. Calculating difference btw public and private use!
                                1. Pure private use is not allowed by 5th A. (Ex. home for govt official b/c no
Power hinges on defn                public benefit)
of public v. private.
                                2. Pure public use is meant to be availabe for anyone; open access. (Ex. highways,
                                    power lines)
                        ii. Significant area of land-use regulation and litigation. Litigation focuses on gray area
                            btw what‘s public and what‘s private.
                 c. Just Compensation – generally, fair market value assessment
                         i. Look at comparable rates in neighborhood – prices of previous sales
                        ii. View condemned property as undivided fee
                                1. Generally looking at PARCELS of land
                                2. Ct values land as a FEE SIMPLE first and then decides how to distribute that
                                    total amount among all the pp who claim a property interest in the parcel.
                                           Fee              L.E.              Remainder Future Interest
                                           $Z               $X                       $(Z-X)
                               3. Allocation depends on what kind of interest is at stake, i.e. whether you have a
                                    present or future intereest. If your future interest is too remote (ex. possibility
                                    of reverter), and it becomes too hard to calculate, then often, the court simply
                                    won‘t give you anything!
     2. The mechanics of a taking! Govt must still comply with the procedures for due process.
             a. Govt files petition in court. (In some jurisdix, govt first attempts to negotiate w/ priv parties.)
             b. Notice is sent out to all who have some interest in the land govt wants.
             c. Trial held – govt must establish its authority the land and state the public use.
             d. If the public use is rational, petition is validated. Calculation of what monetary awards should
                 be given to justly compensate owners ensues.
                       i. Calc includes property interest + any damage to remaining interest.
             e. Often, the condemnation proceeding is avoided b/c the govt seeks to negotiate with the
                 individual owners. Govt wts to avoid the transaction costs of trial. So can view trial as the result
                 of failed negotations b/c of hold-out problem.
     3. Hawaii Housing Authoriy v. Midkiff (1984) (CB 1106) – Half of HI‘s land was owned by only seventy-
        two people and State wtd them to break up the estates by enacting the HI Land Reform Act of 1967.
        Measure was compromise btw needs of landowners (who didn‘t want to pay taxes on earnings from sale
        of land) and tenants who wtd to buy the land. Tenants owned the structures but not the land underneath.
        Midkiff refuses to turn over his land. Suit ensues.
             a. Held: for HHA. HI statute condeming residential tracts and transferring them from the owners
                 to the lessees in order to reduce the concentration of land ownership satisfies the public use
                 clause of the 5th Amendment.
             b. Rule: A taking involving the transfer of property from one private person to another satisfies
                 the Public Use Clause of 5th amend if it is rationally related to a conceivable public purpose.
                       i. It is up to the legislature to determine what constitutes a public use.
                      ii. Act limits the number of lots any one tenant can purchase and authorizes HHA to use
                          public funds to ensure that the market dilution goals will be achieved.
             c. Notes: See taking as public good b/c you  number of pp who can own property. Weird part is
                 that in practice, the funds used to satisfy the compensation requirement is supplied entirely by
                 the lessees. In effect, govt ends up acting as a broker.
                       i. S.Ct. gave more deference to legislature than App Ct. Sees the st legis as better able to
                          determine what‘s a ―public use.‖
                               1. Public use – anything that is rationally related to a conceivable public purpose,
                                    i.e. whatever the legislature says.
                               2. Benefit of jud’l deference – facilitates redistributiion of wealth here.
                      ii. Note potential problem of powerless community and unresponsive legislature. Also
                          note that the majority property owners were Polynesian so taking away their property.
    Property Outline, Prof Hernandez, Spring 2001                                    last updated: 4/29/01            54

            4. Poletown Neighborhood Council v. City of Detroit (1981) (CB 1116) – Detroit wtd to condemn some
                residential land so General Motors could build an assembly plant. Neighbors saw it as a taking for
                private use. Detroit was economically depressed at the time.
                    a. Held: for Detroit – where land was condemned so that it could be resold to an auto
Underlying              manufacturer for a new assembly plant, the condemnation provided a clear and significant
issue is what‘s
a ―public use.‖         benefit to the community and thus was done for a public use.
                    b. Rule: When the condemnation of property benefits specific and identifiable private interests, a
                        court must use heightened scrutiny to determine if a clear and significant public interest is the
                        predominant interest being advanced.
                              i. Benefit here was the jobs, increase tax revenue, preservation of biz dependent on
                                 having a GM plant nearby. Purpose of project is the alleviation of unemployment and
                                 the revitalization of the local economy. Any benefit to GM is purely incidental.
                    c. Dissent I: Primary objective of condemnation is to give GM property. Any economic benefits
                        for the community will only come abt thru GM‘s use of the property.  economic benefits are
                        incidental to the private use of the property.
                    d. Dissent II: GM had Detroit backed against a wall and pushed the deal through. Real issue here
                        is the problem of condemning private property b/c another private pty promises to use it to a
                        greater public ―benefit‖ than the old use. Threatnes the security of private ownership.
            5. City of Oakland v. Oakland Raiders (1982) (CB 1120) – Raiders wt to move to LA but Oakland
                (hometown) fans did not want them to leave.
                    a. Held: for Oakland. Where a city tried to take and operate a professional football franchise under
                        a claim of valid public use, the trial court must determine if owning the team, like owning a
                        facility where a team may play, constitutes a legitimate public purpose.
                              i. Sports team considered part of the community. But distinction drawn btw owning the
                                 team and owning the facility.
                             ii. Entertainment/recreation as a public use.
                    b. Rule: The promotion of the education, recreation, or pleasure of the public constitutes a
                        legitimate public purpose.
            6. GM Case and Raiders Case bring to mind Singer‘s article on the Reliance Interest in Property.
                Youngstown manufacturers  long-term employment relationship gives workers a property interest.

       1. Regulatory takings – when can zoning be viewed as tantamount to a taking for which govt must
          provide compensation  this is the dilemma!
              a. There is a lack of jurisprudential clarity!
              b. B/f 1922 – formalistic approach, focused on physical possession.
                       i. If govt took physical possession  just compensation
                      ii. If govt injured property  trespass/nuisance
                     iii. If govt  property value in some way  taking didn‘t necessarily occur since owner
                          still had possession of land.
              c. But realized that focus on physical intrusion may be not be very useful. Move to adhoc
                  approach in 1922 w/ Pennsylvania Coal v. Mahon.
                       i. Background of PA Coal: 1921 statute prohibited mining of coal if such removal will
                          cause the surface land to sink. Court invalidated the statute as an unconstitutiontal
                          taking of Coal Co‘s property. Company not compensated for its inability to remove coal
                           regulation went too far. (Note, no precedent defining what‘s ―too far.‖) Coal Co was
                          a one time fee simple owner of the land, including the surface rights. However, b/f stat
                          was enacted, Coal Co decided to sell the surface rights, effectively leaving itself only
                          with a SERVITUDE. Mahon bought surface rights and singed a waiver b/f buying land
                          saying the won‘t bring suit.
                                1. Statute had built-in exception. You can‘t remove coal that causes land sinking
                                   UNLESS you are the fee simple owner of the land. Derived from idea of
                                   absoluate rights of ownership. But Coal Co no longer fee simple owner.
Property Outline, Prof Hernandez, Spring 2001                                          last updated: 4/29/01              55

                    ii. After Court decides on stat, Mahon decides to use statute to his advantage.
                   iii. With ruling (for Coal Co), S.Ct. put Coal Co conceptually back into the exception.
                        Question is simply whether the stat overreached so that it‘s now a regulatory taking?
           d. 1978 – Grand Central Terminal Cause – held: what govt did was NOT takings.
                     i. NYC landmark preservation ordinance prohibits owner from building skyscraper over
                        Grand Central Terminal. Building owner says it‘s a direct interference w/ his prop use.
                    ii. Court acknowledges that there is interference with the economic investment BUT this
                        does not amount to a takings!
                             1. Inability to exploit airspace = $3 million loss
                             2. But owner (fee simple owner) was not completely prohibited from profiting
                                 from land. Could still rent out other space. He was earning enough to get his
                                 return on investment.
                             3. Analysis of takings broadened to include investment returns.
           e. 1982 – Loreto v. Teleprompter – NY stat allowed cable companies to install cable lines on top
               of apt buildings. Ct held it was a taking even though it was only a limited intrusion. Physical
               intrustion w/o permission and compensation is tantamount to a taking for which compensation
               must be provided.
           f. 1992 – Lucas v. South Carolina Coastal Commission – total denial of use of property is a
               categorical taking for which compensation is automatically guaranteed UNLESS the state can
               justify the regulation as preventing a common law nuisance.
                     i. Regulation prevented development of land on beachfront. Goal was to preserve
                        undeveloped area – public good. But owner of beachfront property felt he had no way
                        of getting an economic profit from his land.
                    ii. So complete obstruction on owner‘s use  categorical taking! Regulation went too far!
                        Preservation of land  CL nuisance abatement so govt has to pay Lucas.
    2. The takings inquiry is a NARROW one. Focus on how the INDIVIDUAL has been affected. Rarely
       take prior ownership into account.
           a. Some commentators – the more the govt activity looks like an acquisition, the more likely the
               govt will be found to have taken. Look at sequence of events. (Ex. if state passes stat that
               effectively  property values and then exercises eminent domain power, this looks suspicious.
               Govt  property values prior to takings so that it has to pay less for the taking.)
    3.   DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, (1990) (Anth 461) –
         history of S.Ct.‘s handling of the case. PA Coal set the parameters for a debate over the meaning of the DP and
         Takings Clauses in the Consitution
    4.   Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law,
         (1967) (Anth 500) – classic piece. When is an indvidual burdened more than anyone else s.t. for that individual, it
         is a taking?
    5. Paul, The Hidden Structure of Takings Law, (1991) (Anth 519) – summarizes seminal articles written in
       areas of takings law; problem of positivism  how can govt simultaneously be responsible for
       establishing the property rights of the citizenry and also be entrusted not to render its constituents
       helpless when conditions dictate defining property rights so as to benefit public officialdom?
           a. Search for a uniform theory about takings is pointless! There is value in society continuing to
                struggle to decide how far is too far re: takings. Each society has different values (Anth 531) so
                you want to leave them w/ flexibility. Ex. values of Industrial Revolution v. Environmentalists.

Takings dilemma brings us back to ―what is property and how can we regulate it.‖
    Property law is the basis of our economic system in many ways. So the set of rules used to resolve
       conflicts will be difficult b/c we are essentially allocating resources. By awarding the property to one
       person, you are denying another person that property.

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