I. WHAT IS PROPERTY?
AD COELUM: A legal fiction and boundary rule. It’s hard to demarcate skies and depths, so this is a
nice default proxy that says whoever owns the land, owns it upwards and downwards to infinity. When
used, connected to the idea of dominion- that owner has rights over everything so long as they can
subject it to their dominion, i.e. they possess and actually use that part of the land, air, depth.
ADVERSE POSSESSION: when someone takes possession of land that is not theirs.. it’s a principle
that transfers ownership onto someone who takes possession adverse to the original owner for a certain
period of time. One of the critical points of adverse possession has to be that the possession has to be
against the wishes of the owner. The defining feature is that it has to be adverse to the owner.
BUNDLE OF RIGHTS CONCEPTION: This conception views property as an amorphous bundle of
rights, privileges, liberties, immunities, powers, abilities, all of which are vested in the owner. It doesn’t
put on a pedestal or highlight any one right, but a host of rights. The way it works is if something is
removed from the bundle, and courts determine whether something taken out of the bundle was a right,
or not. If something was part of the bundle of rights, then a property right has been taken. This operates
primarily in the negative.
EQUITY/SPECIFIC PERFORMANCE/INJUNCTIVE RELIEF: Associated with remedies.
Property rights enjoy special protection in a court of equity as they offer injunctive relief. Landowner’s
ability to use the property without harming anyone else, is most ideal under the law, and equity furthers
that by making sure that someone’s peaceable possession is protected by injunctive relief. Equity is
synonymous with discretion vested in the judge as they balance the circumstances of the case to
determine whether to grant it.
Four factor test to see if injunctive relief is required by ‘traditional standards of equity’:
1) Available remedies (monetary damages) are inadequate to compensate for the injury
2) Irreparable Injury
3) Balancing of hardships between the parties
4) Public Interest Not Harmed
Two Important Maxims of Equity:
1) Equity will only help those who come with ‘clean hands’ (he who seeks equity must do equity)
2) Equity will only be provided when the remedy at law is inadequate
NECESSITY: A well-known exception to trespass is the doctrine of necessity (like if you’re taking
someone to the hospital who’s having a heart attack).
NORMATIVE VALUES: A normative question asks what ‘ought to be’. Courts make a choice from
multiple conceptions/frameworks based on what their normative value is. A normative value says, this is
what property means and SHOULD mean for this case, and onward. What’s the ideal? It’s descriptive
and future-looking. It can be based on efficiency, certainty, autonomy, or dignitary interest.
Efficiency: being able to predict a certain outcome, so we’re trying to have consistency.
Certainty: It can also be based on certainty. Either it means something specific to the exclusion of
everything else, or it means nothing at all.
Autonomy: Your property is your castle.
Dignitary Interest: Some of the underlying assumptions in some property theories, is that property, or
certain things, are invested with people’s dignities, or personalities, in such a way, that an interference
with that thing, results in an invasion of their person, or their bodily integrity.
NUISANCE: Predicated on the conception of property as a bundle of rights. Private nuisance is the
substantial and unreasonable interference with the private use and enjoyment of another’s land. Relies
heavily on balancing test, and significant harm must be shown. Don’t just look at the harm however, but
also the nature of the interference. Hendricks standard: 1) intentional and unreasonable, 2) negligent, or
reckless, or 3) results in abnormally dangerous conditions or activities in an inappropriate place.
1) Intentional: The actor knows or should know that the conduct is causing a substantial and
unreasonable interference. Doesn’t have to be malicious, just needs to have constructive
knowledge. But if malicious, it is a nuisance based on the doctrine of neighborliness.
2) Unreasonable: ‘Reasonableness’ in nuisance is a balancing exercise. To be a nuisance, the
gravity of this harm has to outweigh the social value of the activity. Social value in the
evaluation has to be objective and universal, not just subjective to the party. Balance the harms
and benefits to each party. Speculative cost-benefit analysis, view property from an efficiency
REPEATED TRESPASS: There is a remedy in equity when there is a series of trespasses so as to
avoid the trouble of a series of suits, or when the trespasser will continue to trespass despite the remedy
at law. It’s unquantifiable – damages are inadequate where the harm caused is immeasurable or
unquantifiable. The numerocity of actions – when there is going to be a series of trespasses that would
require many actions. There has to be a series of, or part of the same transaction, and be likely to occur.
RIGHT TO EXCLUDE CONCEPTION: According to this, property consists of primarily, or
exclusively, of an owner’s right to exclude others from an identified resource. It’s the owner’s ability,
power, right, to exclude others. This is primarily what property is about. Property is all about exclusion.
TRESPASS: Predicated on the conception of property as a right to exclude. In every trespass, there is
the presumption of actual harm, because there is an interference with the right to exclude. Although it
isn’t measurable in monetary terms, there is actual harm. Protects the absolute possessory interest,
simple on-off switch based on right to exclude, no balancing test. Moved towards more of a balancing
test in Hinman by saying possession of property is limited to what people have dominion over, and you
can’t have dominion over what you don’t use.
II. ORIGINAL ACQUISITION--determine who actually owned something for the very first time.
1) FIRST POSSESSION, DISCOVERY, CREATION, ACCESSION, AND ADVERSE
ACCRETION: When soil that is moved from one person's property to another by wind or water, those
owners are made to gain or lose. You can’t claim back the soil.
ADVERSE POSSESSION: Applies to real/personal property, when an owner sits on his right to
exclude and the statute of limitations for challenging the original unlawful entry expires, a new title is
assigned in the adverse possessor, and is an in rem right good against the original owner, and the world.
AP cases are bilateral disputes that result in in rem rights. AP is a rule of involuntary transfer of
ownership, so it’s structurally similar to the doctrine of accession. AP revolves around POSSESSION,
which gets its normative value from NOTICE, so AP is about NOTICE to the prior possessor and the
world. 5-Factor test (Lessee of Ewing v. Burnet): 1) Actual, 2) Continuous (SOL never restarted), 3)
Exclusive (excludes true owner and others), 4) Open and Notorious (need actual notice to everyone, or
constructive notice at least for true owner), 5) Adverse Under Claim/Color of Title/Right (adverse =
w/out permission of true owner, claim of right = intent to exclusively possess [ouster]).
POLICY: AP as a concept lets you know who possesses what at all times. It supports reliance interests
a possessor might have developed through long-standing possession, and discourages owners from
sleeping on their rights, and encourages them to be gatekeepers of their property, avoiding abuse of
commons and maximizing property efficiency and utility. Also reduces transaction costs of determining
title to assets that last for a long time. Some jurisdictions care about good/bad faith, some don’t.
TACKING: If a transfer from first AP-er to second AP-er is voluntary, the second AP-er can ‘tack’ on
the time that the previous AP-er spent to build up their weight against the SOL. But, if the transfer was
involuntary (3rd party ousts AP-er), 3rd party may not tack on that ousted AP-ers period of possession,
since there is no privity, no voluntary contract entered into.
ACCESSION (PRINCIPLE): The principle of accession is when property interest in a resource is
referenced by something else that is owned, in an intimate manner. Ownership of some
unclaimed/contested resource is assigned to the owner of some other resource that has a prominent
relationship to that unclaimed/contested resource. There are several different doctrines which can be
used to apply the principle of accession: Ad Coelum, Increase, Accession, Accretion, Fixtures. Hume:
“the fruits of our garden, the offspring of our cattle, the work of our slaves.” Essentially, if you mix your
owned resource w/ an unowned resource, you can expand your ownership. Wetherbee v. Green: When
the right to the improved article is the issue at hand, the question of how much the property or labor has
contributed to make it what it is, must always be the predominant factor (ex: you can’t claim an organ
over a piece of wood).
ACCESSION (DOCTRINE): Unlike principle of accession, the narrower common-law doctrine of
accession doesn’t apply until there’s been conversion/transformation. It applies when someone
mistakenly (in good faith) takes a physical object that belongs to someone else and transforms it through
their labor into a fundamentally different object. So, mistaken improvers of real property fall under this
doctrine. When only labor is mixed, owner of original property still owns unless value added to property
is substantial. When labor and material are mixed, the person who supplied the most significant and
valuable material gets the final product. The owner of large goods gets rights over small goods, not vice
versa, because there is a greater relation to the whole. In determining who gets the new property, 3
considerations are taken into account: 1) traceability, 2) relative value of the original v. the transformed
resource (this valuation might include the dignitary interest of the owner), and 3) good/bad faith.
CONSTRUCTIVE POSSESSION: Possession need not be actual/physical; but you need to mortally
wound it and be in unequivocal pursuit. These provide dominion and constructive notice. You must have
possession to use, and use is the basis for the right to exclude, so you must have possession in order to
have use, in order to have the right to exclude.
CONVERSION: Tort for wrongful possession of chattel. Unlike larceny, do not need intent to steal.
DISCOVERY: Original title to property can be established through it. Establishes a unique right to
possess a thing. Discovery is, in the end, a principle of sovereignty, and the discoverer, is not under the
normative restrictions of anyone else (they’re now the highest authority), and so has entitlement to
extinguish any pre-existing normative framework of power over the property, but that framework is
immaterial and established by the discoverer themselves. Discovery gives right to take land by purchase
or conquest; it gives title, and title gives sovereignty. Sovereignty is the idea that a nation-state has
exclusive jurisdiction and control over a territory (absence of a higher authority), and gives the exclusive
right to extinguish the title of the occupants by purchase or conquest. (Johnson v. M’Intosh)
FIRST POSSESSION: Original title to property established by being the first to actually possess
FIXTURES: Chattel which, although originally movable chattel, are by reason of their annexation to, or
association in use with land, regarded as part of the land. In association with principle of accession.
Fixture disputes are usually between: 1) purchaser/seller, 2) tenant/landlord, 3) borrower/lender.
3-Factor Fixture Test: 1) actual fixation of the chattel to the property (just cuz something can be
removed doesn’t mean it’s not ‘fixed’, its original physical attachment is still a factor), 2) evidence it
was intended to be used in relation to the property (not just being stored), 3) party’s intention- objective
intent (def makes it a fixture) or subjective intent (must be documented). Very fact-specific test.
Opposite Legal Presumptions: 1) If owner introduces a fixture, we presume he intended to improve the
property—it becomes a fixture, enriching the ownership interest. 2) If tenant introduces fixture, the
presumption is the other way—didn’t intend to improve the property, so they reserve the right to chattel.
These are refutable if there’s sufficient evidence proving them invalid. (Strain v. Green)
IN PERSONAM: Directed against a specified or finite class of individuals.. it’s a contractual right. The
identity of the person against whom you have an obligation or right, is specified by a contract.
IN REM: Operates against the world at large, against an indefinite, unspecified class of individuals.
Property rights are paradigmatic of in rem rights because they’re good against everyone besides
yourself, and who you authorize.
JUS TERTII: “Third party rights”, argument made by a third party which attempts to justify
entitlement to property based on the showing of legal title in another person. By showing legitimate title
in another person, jus tertii argues that the present possessor’s interest is illegitimate. Jus tertii
arguments aren’t accepted in the U.S. because they fail to show that possession is more legitimate in the
third party than the present possessor. Reasons include: a) market efficiency concerns—establishing a
title bilaterally allows possessors of property to use it, b) judicial efficiency—when true owners aren’t
present, it allows the court to efficiently settle dispute without wasting time establishing their rights, c)
procedural concerns—avoid hearsay since the 3rd party/original owner isn’t there, or d) gives parties
incentives to find the true owner. WIKIPEDIA: Jus tertii (“third party rights”) is the legal classification
for an argument made by a third party (as opposed to the legal title holder) which attempts to justify
entitlement to possessory rights based on the showing of legal title in another person. By showing
legitimate title in another person, jus tertii arguments imply that the present possessor’s interest is
illegitimate or that the present possessor is a thief. Jus tertii arguments are generally insufficient to
support actions because they fail to show that possession is more legitimate in the third party than in the
NON-EXCLUDABLE: Applies to intangible resources / public goods. It’s impossible, if not hard, in
the absence of a legal regime, to exclude others, from the use of it, once it is created and made
NON-RIVALRY: Applies to intangible resources / public goods. A resource is non-rivalrous in nature
if one person’s use of the resource, doesn’t conflict in any material way, independent of the legal
regime, with another person’s use, at all. A million number of people can use the same information at
the exact same time without there being a problem, which obviously isn’t the case with tangible
resources. There’s a scarcity that accompanies an identifiable tangible resource.
NOTICE (Pierson v. Post dissent): Property rights are all about notice. It casts an obligation on
everyone else to stay away from a resource. Exclusion is mediated through the resource—exclusion is
not person-specific, so it’s all based on the idea of in rem rights. So property is all about giving notice to
stay away, to exclude others from it. That’s why notice is so important, because it places an affirmative
bind on strangers. That’s the very nature of property rights; their ability to bind third parties with whom
we have no specific arrangement. The absence of notice is the absence of an ownership interest. There
has to be some manifestation, some notice to the rest of the world. Notice only becomes important when
the resource in question ISN’T in actual possession yet. Once it IS in possession, the notice is already
inherent. This is very much tied to what the resource itself is. Notice establishes law and order—gives
people certainty of their possessions, by being able to exclude people from their property. Notice has a
strong communicative function, the function of notice communicating to the rest of the world that the
normative possession has changed.
POLICY: Argument external to the legal rule you’re dealing with. It looks at the broader effects of the
legal rule; it looks at what will happen because of it. It doesn’t look at it internally in how to construct an
PRINCIPLE: It derives from the internal logic of a legal rule to decide what “should” be.
PRIVITY: Basic concept in contract law that says that only two parties that have interest on the
contract can sue on it- the contract only binds people who have ‘privity’ to each other- no third party can
sue under contract law.
RATIONE SOLI: “By reason of the soil,” common law principle that allowed property owners
exclusive privilege to hunt on their land or license hunting to others, but only applied to game, not to
foxes (Pierson v. Post). “That which is on the land is yours”, it used to be applied to wild animals, since
it was an easy way to demarcate property or ownership over seemingly fugitive resources (Keeble v.
REPLEVIN: Action to recover not just the value of the resource, but the resource itself if it can be
tracked. You’re seeking to recover the actual good, or at least its value. Related to doctrine of accession
as seen in Wetherbee v. Green.
SEQUENTIAL POSSESSION: Determining who will have title, knowing fully well that there is
someone else who has the best title, who isn’t in the picture. So, we’re in the 2nd best world in the sense
that we’re determining title relatively—concept of relativity of title. This is a bedrock principle of
common law, that a dispute of ideas between 2 parties, a bilateral relationship, can give rise to an
ownership interest that applies in rem to the entire world.
III. VALUES SUBJECT TO OWNERSHIP
CULTURAL PATRIMONY: Items of cultural patrimony must 1) have ongoing
historical/cultural/traditional importance, and 2) be considered inalienable by the tribe by virtue of the
object’s centrality in tribal culture, aka its cultural function precludes it from being any individual tribal
member’s personal property.
DROIT MORALS (moral rights): An artist retains certain inalienable (can’t be transferred), but
waivable (depends on the artist actually bringing the claim) rights with respect to their creation before
and after publication, display or sale. 2 Types of Droit Moral: 1) Right of Integrity—can prohibit the
physical defacement/alteration of a work during the artist’s lifetime and 50 years after his death. (MT
Art Preservation Act, Moakley v. Eastwick), 2) Right of Paternity—can claim authorship of the work, or
for “just and valid reason” deny/abandon claim of authorship. You can’t transfer these two rights. Droit
Moral protects a person’s personality and reputation. The idea of a moral interest in a property or that
someone invests themselves into the property which makes the property protection a protection of one’s
personality, goes back to Heigl’s theory of property, which had to do with his idea of the externalization
of the will. There are other interests at stake, interests of reputation, dignity, paternity, that all you want
is credit. They’re all non-economic reasons.
PERTINENT EASEMENT: An easement that’s pertinent is an interest in what is known as an
adjacent piece of land that vests not in an individual, but vests in an adjacent or a dominant servitude
next to it. If there are 2 pieces of land, one is inferior and the other superior—an easement of pertinent is
a right that’s attached to the dominant/superior piece of land over inferior piece of land and this can
come about either by declaration, or prescription, which is very similar to adverse possession. An
easement of pertinent attaches to another piece of land (very peculiar feature of easement of pertinent).
It gives right to use the property without possessing it. Different from AP because AP operates as a
complete transfer of ownership in the entirety of the property, while PE’s are only a transfer of a
component of the bundle of rights, that component being use and enjoyment of the land. (State of
Oregon v. Hays)
PRESCRIPTIVE EASEMENT: An easement can be created in favor of one person in the land of
another by uninterrupted use and enjoyment of the land in a particular manner for the statutory period,
so long as the user is open, adverse, under claim of right, but without authority of law or consent of the
owner. In Oregon, the prescriptive period is 10 years, so SOL is involved. It’s an easement created by
PUBLIC TRUST: Abstract doctrine that says there are certain kinds of resources that are inherently
public in nature, endowed with a public interest conception. The private ownership interest, or what we
understand by all intent or design, to be a regular ownership interest, is actually invested with a public
interest. There are economic, utilitarian, or moral reasons why we might want certain resources, assets,
or lands, to be invested with the public interest, such that it limits the owner’s discretion, or the amount
of authority that’s delegated to the owner in exercising their ownership privileges. It’s unclear where
you draw the line in figuring out what has public interest such that it’s subject to public trust. EX ANTE:
says the resource was vested with public trust since the origination of the resource, prior to the court's
opinion. EX POST: says the resource is being taken, or made a public trust now. This is contrary to
reliance interests of property, allowing property owners to be sure in what they own, thus allowing them
to make the best use of the resource. Also, if the rights were never the owner's, the government can take
them without compensation. This is why this doctrine’s not that popular. Also, the bundle of rights that
an owner has in relation to them is limited by the idea of public interest.
PURPESTURES: Private encroachments on public land (navigable waterways or public highways) that
the government can force you to take down through public nuisance actions—like a dock on navigable
waters that makes it difficult for boats to pass.
IV. OWNER SOVEREIGNTY AND ITS LIMITS
CRIMINAL REMEDIES: Might influence court’s conception of property, thinking about what the
result will be for someone liable. Also raises the stakes on NOTICE. Reasons: 1) If civil remedies were
the only option, property owners might quickly become overwhelmed by the need to enforce their rights
with litigation, 2) Avoid people resorting to self-help by giving a legal remedy.
EX-ANTE: View from before the opinion.
EX-POST: View after the opinion, or after the issue arose.
LARCENY: Trespassory taking, possession, and carrying away (movement) of property of another w/
intent to steal it. It’s not larceny if you were already in lawful possession of it and don’t want to give it
back. However, if you’re only temporarily holding (like in a store), it’s not lawful possession, but
merely custody. This emphasizes intent, and gives property owner more autonomy and right to exclude.
Unlike conversion, larceny requires intent to steal, objective intent as seen by actions, and subjective.
EXCEPTIONS TO RIGHT TO EXCLUDE
ABANDONMENT: In order to abandon property and not be held liable for the responsibilities of a
property, a property holder must voluntarily relinquish all: 1) right 2) title 3) claim 4) possession, all
with intent to terminate ownership. He can’t vest his ownership in any other person, and has to have the
intention of not reclaiming further possession or resuming ownership or enjoyment. The state has a
vested interest in maintaining an owner for the property. It’s very difficult to abandon land to which you
have perfect title (valid deed + recorded by land registry). (Pocono Springs v. MacKenzie)
ANTI-DISCRIMINATION LAWS: Courts balance between the nature of the class being
discriminated/excluded, and the nature of the property’s owner protectable interest. There’s a hierarchy.
Nature of class being excluded: Constitutionally protected class (Shelley); statutorily protected class (AG
v. Desilets); “everyone else arbitrarily excluded – gambler (Uston).
Nature of property owner’s interest: Private property ownership; indirect private property interest
(Shelley); public property (property itself is infused with public interest – public trust doctrine)
BAILMENT: A bailment is the transfer of temporary custody of property from the property owner
(bailor) to another (bailee). It’s not a complete transfer, it’s limited in purpose and time, and the bailee
has a duty to return to the owner .When a bailee exceeds those terms, there’s a COA for conversion.
Some of the bailor's rights associated with ownership are also transferred to the bailee, including the
right to exclude. So from a third party's perspective, the bailee's rights with respect to a thing are similar
to those of an owner. Bailments are usually created by contract, so it’s contractual rights (in personam)
to transfer property rights (in rem). Bailments can be created in 2 ways:
1) Express—contract. It’s clear there’s a bailment.
2) Implied—no contract, but implied from party’s actions. Requires a) delivery of possession, and b)
custody / control. (Allen v. Hyatt).
Bailee’s different duties of care:
1) Bailment for sole benefit of Bailor: Bailee is only liable for gross neglect (watching laptop).
2) Bailment for sole benefit of Bailee: Bailee is liable for even slightest neglect (library book).
3) Reciprocally Beneficial Bailment: General standard of care for all bailments—reasonable care
standard. Accounts for circumstances of whether bailee received compensation, or whether it
was solely for the bailee’s benefit.
Involuntary Bailments: It’s not really a bailment so much as an offer to create a bailment. It’s a
stituation where someone’s still in possession but that has the possibility of becoming a full bailment.
Involuntary bailments do not give rise to any liability. (Cowen v. Pressprich).
Voluntary Bailments: A bailment becomes voluntary once the bailee exercises dominion over it. Courts
might also require ‘acceptance’ (Allen’s dissent and Cowen). It gives rise to strict liability, or absolute
liability in the case of non/misdelivery. (Cowen).
CUSTOM: Custom can give rise to real property rights, and can form legitimate limitations on the
rights of a property owner. It’s recognized to be binding under law when it satisfies immemorial
antiquity. Literally, no one should remember when it originated. If you can’t trace the point when it
originated, then it’s binding.
GRANT: A grant transfers an interest in the resource (Wood v. Leadbitter). They’re in rem rights to go
on land for a certain amount of time for use of the resource, and irrevocable for that time frame.
LICENSE: A license is a waiver of the owner’s property right to exclude. It gives permission to the
holder to gain access to the property. In general, license refers to a waiver of the exclusion, and is
temporary and revocable. Defined affirmatively, it’s the authorization to use someone’s resource.
Defined negatively, it’s a situation where a property owner waives the right to exclude grants exceptions
to his right to exclude.
NECESSITY: Necessity can justify entries upon land and interferences w/ personal property that
otherwise would be trespasses. We relax trespass under the defense of necessity for preservation of life
or property. This defense is invoked and balanced on a case-by-case basis. Necessity requires that there
was only one way of doing something, or was one of the ways of doing something under a time
constraint that justifies it. There was “an inability to control movements inaugurated in the proper
exercise of a strict right”. The necessity has to be a physical necessity and a simple cost-benefit analysis
doesn’t fall under legal defense of necessity. Just because trespass is efficient/cost-effective, regardless
of the value saved, doesn’t override someone’s property interest. There’s only protection for human life,
and property survival.
PUBLIC ACCOMODATION: When property’s not open to the public at all, the owner has the right to
exclude for any reason or none at all, subject to the defense of necessity and exceptions based on
custom. Public accomodations have a more qualified right to exclude. They can’t exclude arbitrarily or
discriminatorily. They must offer the ‘right to reasonable access’—can’t exclude without valid reason.
TRANSFER: The power to transfer property to someone else, either by sale or gift. There needs to be
actual delivery, via actual delivery, deed or instrument of gift, or start of performance, for transfer to be
valid and enforceable. You can’t transfer something on the condition that they won’t transfer it again, so
you can’t transfer it with restraints. Partial restraints are only upheld if they’re reasonable. Transfers
enhance ownership autonomy by allowing them to shed gatekeeper responsibility. Statute of Frauds
(adopted in all states besides LA) provides that any conveyance of a property right in land (other than a
short term lease) and any contract for the assignment, surrender, or sale of a property right in land must
be in writing and signed by the parties. This provides security of property rights and creates stability and
security, and thus enhances the overall transferability of property by allowing them more frequently and
lowering transaction costs.
V. FORMS OF OWNERSHIP
ACT AND RULE UTILITARIANISM: Rule Utilitarianism – this type of rule takes into account all of
the utilitarian factors, so that when it is applied to each case, the most utilitarian result will automatically
be produced. Do not need to go through all the factors in each set of circumstances (RAP).
Act Utilitarianism – apply the rule by looking at each individual case to figure out if applying the rule in
those circumstances will further the purpose of that rule (Restraints on Alienation)
ALIENATION: The capacity for property to be sold/transferred. Generally property is alienable, but
subject to restraint, on the idea that when a transfer is created in fee simple, it ensures that it’ll be used
by the person best suited to use it, and otherwise hampering effective use of property if the buyer could
put it to better use than the seller. You can put conditions on use such that alienation is theoretically
possible, but practically impossible. Restraints on alienation are generally against public policy, so
they’re void, but policy considerations can counterbalance that.
CATEGORIES OF CO-OWNERSHIP: Tenancy in Common, each tenant has a separate (independent
descendible, conveyable, and devisable) but undivided (each tenant has right to possess whole of the
property) interest, and there is no right of survivorship in the tenants. This is the tenancy presumed
unless there’s a manifestation of contrary intent. Joint Tenancy, surviving joint tenant automatically
acquires the interest of other joint tenant when he dies, and each has a separate and undivided interest
vested. JT requires 4 unities at time of creation: Time—each interest must be acquired/vest at same time,
Title—acquisition through same process and instrument or joint AP, never through intestate succession,
Interest—each has the same legal interest (life estate, fee simple) though not equal amount of share,
Possession—each has right to possess the whole. If 1 of 1st 3 unities ceases, the joint tenancy is severed
and becomes a tenancy in common. Tenancy by the Entirety, only possible in minority of states and only
for married couples. It’s like a JT but neither can unilaterally sever the tenancy.
CONSERVATION OF ESTATES PRINCIPLE: When a transfer’s made, all of what the grantor had
must be accounted for, even if it means implying a reversion. The last interest must be a fee simple
when it becomes possessory. If a holder in fee simple dies without heirs, the property goes to the state. If
you invalidate an executory interest via RAP, it doesn’t mean that the previous estate turns into a fee
simple absolute, but becomes a possibility of reverter vested in the grantor. (Williams, Klamath cases)
Print out separate sheets with estate stuff from each outline. (RAP, fee simple, reversions, etc)
NUMERUS CLAUSUS: As a descriptive principle, it’s the idea that in the common law, the state of
estates that can be created is closed, you cannot create new interests or new estates that can operate as
property rights in rem operational against the world at large. Essentially, the catalogue of estates is finite
and closed, standardizing property rights. While contracts always give sufficient notice, notice in
property is different because it’s in rem, not in personam, so you alter the normative position of 3rd
parties when property rights shift. This way, you promote standardization and certainty, which promotes
owner autonomy. Since property rights by their very nature involve an incursion on the autonomy of
third parties, the law therefore in protecting individual autonomy places a limit on the kinds of interests
that can be created.
OPTIMAL STANDARDIZATION: Merrill and Smith came up with the optimal standardization
principle which says numerus clausus functions to balance measurement costs and frustration costs until
they reach a point of optimal standardization. Numerus clausus strikes a balance between complete
regimentation and complete freedom of customization that results in optimal standardization by balances
information costs against an interest in the efficiency of meeting individual goals, focusing on the costs
imposed on 3rd parties who aren’t in privity. There is a spectrum of standardization ranging from total
freedom of customization on one side, to complete regimentation on the other. Both of these extremes
will have very high social costs (information vs. implementation costs). If you allowed unlimited
customization or creation of property rights, you are forcing others in the world whose normative
position has been altered, to actually spend an additional amount of time and resources in figuring out
what’s contained in the bundle of rights. Typically, these measurement costs are borne by those known
within the ‘zone of privity’. It’s a cost imposed on 3rd parties which isn’t transferred back, or isn’t borne
by the person generating it. So, this principle steps in to fix that.
OUSTER: When a co-tenant out of possession makes a clear, unequivocal demand of their rights to use
land that’s in the exclusive possession of another co-tenant and that co-tenant directly (locks out) or
indirectly refuses to accommodate them, they have established a claim for relief in damages for ouster.
Elements for ouster are: 1) demand (by assertion of legal right), 2) awareness (notice), and 3) denial
(nonaccommodation). It’s a fact-specific analysis to show D acted in a way capable of being interpreted
as a denial of Ps rights. Standard for exclusion here is lower than for AP. A co-tenant has a separate and
undivided interest to possess and use the entirety of property, but D acted as to exclude P so he ousted
her from possession. There’s a diff b/w exclusive use and exclusionary use that needs to be established.
MORTGAGE: A mortgage is the transfer of an interest in property to a lender as a security for a debt -
usually a loan of money. While a mortgage in itself is not a debt, it is the lender's security for a debt. 2
mortgage theories: Title Theory, mortgages are conveyances of a legal estate vesting title in the
mortgagee so the JT is severed when one of the JTs mortgages his interest to a 3rd party (in rem).
Lien Theory (main one), 2 part structure to mortgage. First, sets up trust deed which sets up obligations
of the mortgage, but not an actual conveyance, so it’s a mere lien. Then, when the property’s foreclosed,
master deed is executed which transfers title of property, severing JT. (in personam). Without a master
deed, the mortgage is lien, and not actual conveyance, so none of the 4 unities was severed, so JT isn’t
severed, and survivorship pwns the mortgage.
PARTITION: A partition is a term used in real property to describe an act, by court order or otherwise,
to divide up a concurrent estate into separate portions representing the proportionate interests of the
tenants. It’s the most important legal remedy available to concurrent owners. Any co-tenant can sue for
partition for any reason or no reason. Partition by sale is a forced sale of the land followed by division of
profits amongst tenants, while a partition in kind is the division of the property to create independent
parcels of land. A partition in kind is the default but this rule as applied in Delfino v. Vealencis really
looked at the balance of the equities of the parties, so it’s not a strict rule. A partition by sale should only
be allowed if using a partition in kind is 1) impracticable, 2) inequitable, and 3) not in the best interests
of the parties. (Delfino v. Vealencis.)
RIGHT OF CONTRIBUTION: When there’s no consent from other cotenants for making repairs or
improvements, the cotenant undertaking it generally doesn’t have the right to seek contribution from
other cotenants. 2 Exceptions: 1) cotenant acts in good faith believe they’re the true owner (unaware of
other cotenants), then other cotenants may be required to contribute, OR 2) if the repairs are objectively
essential to preserve the property.
RULE AGAINST PERPETUITIES: “No interest is good unless it must vest, if at all, not later than 21
years after some life in being at the creation of the interest” - John Chipman Gray. A rule of invalidation
that looks at measuring life in existence at time of creation of interest + 21 years. If any possibility of the
interest vesting beyond that, it’s void. To have the RAP apply, figure out one possible interest that will
vest an interest outside that time period, and the whole clause is void. RAP is a game where ppl figure
out various computations to invalidate an interest. If a grant’s hit by the RAP, it’s void ‘ab initio’,
stillborn and void at the moment it was created. Policy: alludes to dead hand control, people can’t do
that. Also strong economic incentives against it—clouds title and thus lessens value of a property
because the exact nature of someone’s interest will only be known in the future. In this market,
uncertainty diminishes price. Also, limbo can’t be used in transfers beyond a certain period of time
because that’s considered inefficient. RAP affects: contingent remainders, executory interests, and
vested remainders subject to open/partial divestment. RAP doesn’t affect: reversions, possibility of
reverters, or rights of reentry. Exception to RAP, “wait and see” rule. The ‘wait and see’ approach says,
wait and see if and when it vests, so the mere possibility of finding one kind of remote vesting doesn’t
render the whole interest void. See whether that remote vesting actually comes about.
WASTE: This doctrine generally states that any act of the life tenant which does permanent injury to
the inheritance is waste. It arose out of the tension when two or more people hold interest in a property,
like when a grantor divides a fee simple into a life estate and one or more remainders. The holder of the
life estate will generally favor current consumption and investments with a quick return, while the
holders of remainders will generally prefer conservation of the asset and longer-term investments.
Depending on the value the court’s trying to promote, they’ll uphold the autonomy interest of the
remaindermen and other times, like when the property is clearly a negative value asset, the courts try to
carve out certain limitations and override the autonomy interest by economic efficiency arguments.
Generally any holders of nonpossessory interests can sue on an action for waste as long as they sue on
behalf of all nonpossessory interest holders. 2 main categories of waste, and 1 controversial one:
Affirmative Waste: A type of misfeasance which occurs when the life tenant takes some affirmative
action on the property that is "unreasonable" and causes "excess" damage to the reversionary or
remainder interest. Judged by “normal” use of the property. (cutting few trees, normal, razing all is not.)
Permissive Waste: A type of nonfeasance which occurs when the life tenant fails to take some action
with regard to the property and the failure to act is unreasonable and causes excess damage. Also judged
by “normal” behavior and use of the property. (failure to repair roof resulting in water damage, AP) .
Ameliorative Waste: Where an affirmative act of the life tenant significantly changes the property, but
results in an increase rather than a diminution in market value. The traditional view is that it’s another
type of affirmative waste and is not allowed. The idea is that holders of the remainder/reversionary
interests are entitled to take possession of the property in substantially the same form as when the life
tenant took possession. A minority view is that ameliorative waste may be permitted in cases where it
can be justified by changed circumstances.
VI. ENTITY PROPERTY
ASSIGNMENT: An assignment is when a tenant assigns the lease to a new tenant—he doesn’t wear
two hats because he’s transferred the entirety of the interest of the lease that he had to the assignee.
There is privity of estate between the original landlord and the assignee, because the whole of the
interest has been transferred to the assignee. Clauses in the original lease will be binding between the
original landlord and assignee if the covenant runs with the land (touches and concerns the land).
ASSUMPTION: Assumption is when an assignee expressly agrees as part of an assignment to be bound
by the terms of the original lease. Thus, he is bound by privity of contract as well as estate. Intent
becomes relevant when you can discern intent from the actions of the assignee to assume the covenants
of the original contract.
CONSTRUCTIVE EVICTION: Court’s way of trying to counteract benefit to landlords through
forfeiture clauses. CE doctrine makes the tenant’s covenant of rent payment dependent upon the LL’s
covenant of providing quiet use enjoyment, moving away from independent covenants. (Blackett)
CONDOMINIUMS: Each person owns their individual condo in a large housing complex and they
have governance arrangements for the common areas where there is collective ownership. The condo
association itself owns the commons areas in the buildings—hallways, elevators, gardens, swimming
pools, gyms, etc., and invidiual unit owners have a stake or stock in the condo association represented
by their voting rights, so they collectively determine how those common areas are governed. There is
normally a master deed that sets up the condominium, and an authorized homeowners’ association,
which promulgates rules, regulations, or by-laws. Within the 4 walls of their individual units, they are
fee simple absolute owners.
CO-OPS: Tenants own shares in a corporation, and those shares entitle them to perpetual leases
(mimics the structure of ownership, but isn’t actual ownership) for an individual unit within a larger
building, or a set of units. The tenants collectively own the building by holding shares in a corporation
that has title to the property, which is all under one mortgage. Thus technically, the collective
governance mechanism doesn’t just relate to the common areas of a co-op, but the entire building and
what goes on within a tenant’s walls. To review cooperative’s decisions, you apply business judgment
DEPENDENT COVENANT (LEASE): More contractarian approach to lease, default approach..
Contracts are bilateral, dependent covenants, meaning one’s breach allows the other to stop
performance—they’re dependent on each other.
FORFEITURE: A clause that must be directly written in the lease that makes one of the two covenants
dependent, one-sided covenant. Landlord could repossess the property upon nonpayment of rent, so he
doesn’t have to perform his duty if other side breaches. Heavily benefits landlords.
INDEPENDENT COVENANT (LEASE): One party’s breach doesn’t allow the other to stop
performance, so each covenant exists and operates independent of each other, unilateral contract. If one
side breaches, this doesn’t absolve the other side of his duty of performance. Landlord has an obligation
not to interfere with the tenant’s quiet use and enjoyment, tenant has obligation to pay rent. (Paradine v.
Jane) It’s a more propetarian approach, since leases are conveyances of in rem property rights.
LEASE: 4 different types: 1) Term of Years: A lease that has a fixed time at which it terminates, so no
notice is required to either party. 2) Periodic Tenancy: A lease that automatically rolls over for a stated
period of time, requires that each of the parties give notice to the other if they desire to terminate the
lease, 3) Tenancy at Will: A tenancy that lasts only so long as both parties with it to continue, either
party can terminate at any time for any reason, 4) Tenancy at Sufferance: Might not be true tenancy, but
this is when a person who once had rightful possession of a property holds over after the right has ended.
In some jurisdictions a LL can’t use self-help to evict a tenant at sufferance, since it’s not a trespass
since original entry wasn’t wrongful.
When an individual who was once in rightful possession holds the property after this right has ended.
NOVATION: When the parties agree to erase any privity of contract liability on the part of the prime
tenant, declares that the original contract no longer exists. Assumption and novation can occur
independently though logic dictates they usually go hand-in-hand.
PRIVITY OF CONTRACT: There’s a contract between the two parties with their names on it.
PRIVITY OF ESTATE: There needs to be a direct carve-out of the original interest (nesting) and one
of the parties must be in actual possession of the party.
SUBLEASE: Primary tenant wears two hats—he’s tenant to the landlord, and a landlord to the
subtenant. Subleases move downward and the leases keep getting narrower. Subleases are shorter than
the original lease and create a new level in the hierarchy. There’s privity of estate and privity of contract
only between the two people directly connected in the chain.
SURRENDER: Court’s way of trying to counteract landlord’s benefits through forfeiture clauses. This
doctrine says that if a tenant offers to surrender the leasehold (by vacating property w/ intent to never
return) and landlord accepts (through action inconsistent w/ the tenant’s continuing interest in the right
to the leasehold, like exercising dominion), the lease is terminated. Since LL has more market power in
drafting the lease, any ambiguities will be interpreted for the tenant since LL had opportunity to make
his intent more clear. (In re Kerr).
TRUST: The settlor leaves ‘the corpus of the trust’ or the ‘res’, to the trust. The trustee is entrusted with
managing the assets, and the beneficiary is appointed by the settlor to receive the benefits of the trust.
They don’t have to be all different parties, but the trustee can’t also be the beneficiary. The usufructory
interests are the benefits that come from the assets. Spendthrift trusts are trusts in which the settlor
specifically makes the benefits of the trust safe from the creditors of the beneficiaries (e.g. for their own
benefit). You can’t set up a trust for yourself as a way to protect your own assets from creditors.
FIDUCIARY DUTIES: A trustee has fiduciary duties of: affirmative duty to exercise diligence in
executing the trust, and duties to refrain from acting w/ a conflict of interest to the harm of the trust.
They must avoid conflicts of interests, which is when a party puts himself in a position where it’s
unclear what his motives for acting are, or to whose benefit he’s acting. The trustee must also avoid self-
dealing; they can’t use the trust for their own benefit (also a conflict interest). (Rothko v. Reis)
CY PRES: This doctrine operates under the idea of changed circumstances. It operates when a settlor
has expressed a specific charitable intent that, due to changed circumstances, is impossible to fulfill.
When the settler has also expressed a related general charitable intent, the courts will modify the will to
fulfill those interests. This shows that cy pres is a legal fiction which is more concerned with furthering
policy objectives, than settlor’s intent. This originates from the law of equity, and is a default rule so it
can be contracted out of. It also comes with a failure clause—if your specific purpose can’t be achieved,
the trust will fail, and the court will look elsewhere for directions on what to do with the trust.
VII. TITLE RECORDS AND TRANSFER
NEMO DAT: Baseline principle of our property system regarding transfers of ownership is nemo dat
quo non habet, “no one can give that which he does not have.” In certain circumstances, there are
exceptions for good faith purchasers for value. Basically, if a person obtained the goods through fraud, a
bounced check, or deception, even if the fraud was punishable under larceny, the seller has a
VOIDABLE title, and if they sell the item to a good faith purchaser, the GFPV has title. However, if the
person obtained the goods through intentional theft, they have VOID title, and there’s no GFPV.
Culpable neglect is another exception to nemo dat; if there’s culpable neglect, he won’t be able to take
advantage of the nemo dat rule.
GOOD FAITH PURCHASER FOR VALUE: GFPV is an exception to nemo dat for real property.
For chattel, the exception is under UCC 2-403. Good Faith under GFPV = the purchaser didn’t have
notice that he wasn’t getting the full rights to the good legitimately. There’s actual notice, or
constructive notice. Constructive notice has 2 types: Inquiry Notice, and Record Notice. Inquiry
(constructive) notice: Notice that the item was suspicious and that should prompt further inquiry by the
purchaser, objective intent examination. Impute knowledge to the purchaser. Record (constructive)
notice: when there’s public knowledge that would’ve shown that the good was illegitimately gotten, also
objective intent examination, also imputes knowledge to the purchaser.
REGISTRATION: Unlike recordation, doesn’t just specify the claims, but specifies parties’ actual
rights. By implication then, it involves a detailed substantive examination and is therefore more costly
than recordation as an administrative mechanism.
RECORDATION: By it’s nature merely records parties claims (as opposed to their rights, like in
registration) in relation to a transaction—it’s a formal act of recording something. Most states follow
title of recordation, not registration. Title recordation is the idea that when someone obtains title through
a transfer, understood very broadly and defined by specific state jurisdictions, a person can then go to a
state administrative office where the land can be entered against the person’s transferee known as the
‘title record book’. It’s a simple administrative purpose where the law allows a transferee of a piece of
land to go to an administrative agency and merely have the property associated with that person as the
owner, on the record book. The law presumes that the ‘title record book’, in how accessible it is,
operates as constructive notice to the rest of the world. Basically, everything in there needs to be known
by anyone engaging in a land transaction—failing to have knowledge of what’s in there is at your own
peril. If you don’t go to the title records office and figure out who owns this piece of property when
you’re interacting with it, and something goes wrong, it’s your fault.
3 Different Kinds of Title Recordation Statues in Diff. State Jurisdictions:
1) Race Notice Statute (most popular): Subsequent good faith purchaser wins only if he has no notice
and records before the prior instrument is recorded. It solves the problem of unscrupulous subsequent
buyer under the race approach. It’s a hybrid regime which still recognizes the GFPV exception, but
places an obligation on them beyond that of a simple notice statute. It imposes 2 conditions: 1) Going
beyond the Notice Statute, it says that in addition to having notice, the GFPV needs to be the first to
actually record the deed, which is the basis of the transfer to that person. It now creates a race between
an original or prior transferee, and the GFPV, and at the same time retains the notice exception to the
GFPV, and that’s why it’s considered a hybridized regime which incorporates both elements of race and
2) Race Statute: Winner of the race to record prevails. If O sells to A, then also sells to B, but B records
before A, then B has title; A only has a claim against O. Regardless of when the transfer happens,
regardless of temporal priority in the actual transaction, the only thing that matters is the first to have it
recorded against their name. This creates a race between multiple transferees to go and have the transfer
actually recorded. It also creates an exception to the nemo dat rule, and creates a partial exception to the
GFPV rule, it doesn’t matter whether they had actual notice or not, all that matters is they’re the first to
3) Notice Statute: Subsequent bona fide purchaser wins unless he has notice (actual, constructive, or
inquiry). Recorded interest gives constructive notice. By definition, it tries to further the interests of the
GFPV, except that the kind of notice necessary to eliminate good faith isn’t just actual notice, but can
now also be constructive, or legal notice. It treats constructive notice as destroying the good faith status
of the good faith purchaser for value, which creates an incentive on the first transferee to go and record
the transfer, so that any subsequent purchasers are held to have had constructive notice.
SHELTER RULE: If there’s a transferee from a GFPV, who is not himself a GFPV, such as a
transferee by a gift, in that situation, the transferee should be able to take shelter under the GFPV
exception that applied to his original transferor, despite the lack of consideration. So this was created
specifically for situations where GFPV wants to make a gift, and it wouldn’t technically fall under the
WILD DEED: If the source can’t be transferred all the way back to its origins, the deed is wild, and
nemo dat applies in its strictest sense. GFPV exception does not apply.
EASEMENT: Easements represent an agreement to waive the exercise of one’s right to exclude another
from their property, usually conveys the right to engage in one particular use; it’s like a license in that
sense. They generally always run with the land, and the granted land is the dominant tract. Most
easements are created by a 1) direct contractual grant (Baseball Publishing). The classification of being
an easement comes from discerning what the contractual intent was from the totality of circumstances in
question. Other easements are created by 2) reservation, which means there’s a full blown transfer of
property from one party to another, but the grantor reserves an easement in the property before granting
it. It’s not an independent contract setting up the easement, but the original transferor now becoming a
grantee. 3) way of creating an easement is by prescription (Fontainebleau), which is by the same process
by which adverse possession results in a full-blown transfer. There’s also easements by implication or
Different types of Easements:
A) Easement Appurtenant: An easement appurtenant is granted to a piece of property—in other
words, the grantee of the easement isn’t an individual, but is a piece of property known as the
dominant tract. The property that’s actually granting the easement, is known as the servient tract.
This is a legal fiction that the law creates saying that the easement is vested in the property, in
the dominant tenant, not in its holder individually. This allows the law to say that this easement
moves, operates, and functions independent of who its holder is, independent of the identity of
B) Easement in Gross: The grantee of the easement is an individual—its granted to an individual or
class of individuals by specific definition—it isn’t granted to a piece of property. This makes a
huge difference since it makes the obligation personal, since it’s rendered to them. As far as the
grantee goes, the obligation works contractually. For there to be an easement in gross, it needs to
be for a commercial purpose (Baseball Publishing).
A) Affirmative Easement: Grants a right to do something, grant of an entitlement to perform an
affirmative action, or perform something in relation to the property.
B) Negative Easement: It places the person granting the easement, the grantor, under an obligation
to refrain from doing certain things in relation to the grantee or the dominant tract. It’s a negative
in that it prevents the grantor from doing something. (4 kinds: land air sunlight water). Also,
unlike affirmative easements, courts are very reluctant to recognize new forms of negative
easements, because of notice issues. Since negative easements come about largely through
prescription, or parties actions over a period of time, negative action requires proof that a party
refrains from doing something because of an obligation.
A) Public Easement: The grantees are the general public, or to an indeterminate class of individuals
(Oregon v. Hay).
B) Private Easement: The grantees are specified individually.