Possessory Estates

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					I. Property – that which is peculiar or proper to any person; that which belongs exclusively to
one.
       A. Real property – Land and generally whatever is erected or growing upon or affixed to
           land.
       B. Personal property – everything that is the subject of ownership, not coming under
           denomination of real estate.
II. Possessory Estates
       A. Terminology:
               1. Tenure – The right or mode of occupying
               2. Tenant – person who possessed land by any kind of right or titles, whether in
                   fee for life, years, at will
               3. Subinfeudation – process of granting part of land to subtenant for service
               4. Escheat – when a tenant dies w/ no heirs, property reverts to state
               5. Alienable – transferable
               6. Remainder – a future interest created in some person other than the grantor or
                   transferee

       B. Three ways to transfer land:
             1. convey by deed
             2. die w/ valid will
             3. die w/out will and rely on laws of inheritance which tend to favor closest
                 relatives and then extend outwards
       C. Types of heirs:
             1. Issue – descendants, not only children but other descendents. Children inherit
                 the rights of their parents if the parent is deceased.
             2. Ancestors – parents
             3. Collaterals – all persons related to descendants that aren’t issue or ancestors
                 ie. brothers, sisters, aunts, uncles, nieces, nephews

       D. Freehold Estates: There are only certain options in creating deeds. Law likes to be
       absolute and only allows owner to deed property for fit certain formats.
              1. Fee Simple: Estate limited to a person and his or her heirs and assigns forever
                  without limitation or condition. The owner is entitled to the entire property,
                  with unconditional power of disposition during one’s life, and descending to
                  one’s heirs and legal representatives upon one’s death. Unlimited as to
                  duration, disposition and descendabiltiy. Has the potential to endure forever.
                  Cannot be divested. Heirs have no present interest. To “A and his heirs”
                  allows A to sell land, devise it by will thus depriving heirs of the land
                      a. F/S Absolute
                               i. CL – to A and his heirs
                              ii. ML – to A (assume and his heirs)
                             iii. Potentially indefinite
                             iv. Cannot be divested
                      b. Fee Simple Defeasible: --A fee simple that may last forever or which
                         may come to an end upon the happening of an event in the future
                i. Fee Simple Determinable – limited so that it will end
                    automatically when a stated event happens (ie. grant land to
                    school as long as it is used for school activity). Has a
                    durational aspect – lasts as long as conditions are met. Future
                    interest held by grantor is called a possibility of a reverter.
                    Language includes “so long as” “until.” May be transferred
                    or inherited subject to the limitation
                        1. DSLUW (defeasible – so long as, until, while)
                        2. Ends automatically
                        3. CL – can only inherit
                        4. ML - may be transferred or inherited
               ii. Fee Simple Subject to Condition Subsequent – Does not
                    automatically terminate but may be cut short by grantors
                    election. (ie. grant land to school but if not used for school
                    purposes grantor has right to re-enter). Grantor merely has the
                    power to terminate the estate. Future interest called a right of
                    entry. Language includes “to A, but if x happens” “upon
                    condition that x happens.” May be transferred or inherited until
                    the transferor is entitled to and does not exercise the right of
                    entry (must exercise right within a reasonable time after
                    condition is broken)
                        1. PHiBIsCuS (provide, however, but if – cond sub)
                        2. Condition must be broken and somebody must reenter
                        3. CL – can only inherit
                        4. ML – may be transferred or inherited
              iii. F/S Subject to Executory Limitation
                        1. Automatically divests to 3rd party when condition
                            breaks
              iv. When language is ambiguous, courts have a tendency to rule in
                    favor of more absolute case and would choose F/S-C/S over
                    F/S-D
               v. Fee simple determinable reverter may be alienable b/c reverter
                    happens automatically.
2. Fee Tail: Estate in which there is a fixed line of inheritable succession limited
   to the issue of the body of the grantee or devisee, and which the regular and
   succession of heirs at law are cut off. All end in reversion or remainder.
   When original tenant and all of his descendants are dead, the land reverts to
   grantor and their descendants. Only Delaware, Maine, Massachusetts and
   Rhode Island honor fee tails. One problem with the fee tail is that it is not
   alienable and children knew that they would inherit the land.
       a. created in 1285 by Statute de Donis Conditionalibus
       b. To A and heirs of his body
       c. Ends after bloodline runs out
       d. ML - can disentail by deed
3. Life Estate: Estate whose duration is limited to the life of the party holding it.
   Upon death of the life tenant, the property will go to the holder of the
           remainder or interest or to the grantor by reversion. Life estates have a future
           interest.
               a. Ways to determine an exact value of a life estate:
                        i. Does a life estate have value? Yes b/c you can sell it
                       ii. How do you determine how much to pay? Based on life span
                           (you would pay less for the life estate of someone 95 versus
                           someone 25 – both are worth less than a fee simple.
                      iii. Is there a way to divide up income from life estate? Create a
                           trust where life estate person gets $ earned on principal and the
                           remaindermen receive what is left if trust after death
               b. Common situation where a life estate is common: Through divorce or
                   death of spouse, individual has a new spouse and wants to care for new
                   spouse for life but want own children from first marriage to obtain
                   assists after death (sometimes includes provisions against new spouse
                   and children—by setting up estate this way it insures that the spouse
                   cannot give estate to new family)
               c. Can transfer but only the share you have
                        i. CL – if you grant more than your share you loose
                       ii. CL/ML – state can take away for waste or other violations
               d. Four types:
                        i. For Life of Grantee (to A for life)
                       ii. Pur autre vie (for the life of another)
                      iii. In a Class (to the children of A for life) – remainder does not
                           become possesory until all life tenants die
                      iv. Defeasible (get as long as you don’t marry or break condition)
E. Future Interest
       1. In the Grantor
               a. Reversion
               b. Possibility of Reverter
               c. Right of Re-entry
       2. In the Transferee
               a. Remainder – occurs at the natural end of the proceeding estate
                        i. Vested
                                1. indefeasible
                                        a. get all
                                        b. to A for life then to B and his heirs
                                2. subject to open or partial divestment
                                        a. life estate
                                        b. could have more children
                                3. subject to total divestment
                                        a. “to A for life then to B, but if B does not survive
                                           A, to C”
                                4. rules –
                                        a. not subject to RAP
                                        b. can only be in an ascertained person
                                        c. no condition precedent
                       ii. Contingent
                                1. rules –
                                       a. unascertained person
                                       b. or condition
                                2. who falls into this group?
                                       a. Unborn children
                                       b. Heirs
                                3. “to A for life then to B if B survives A, but if B does
                                   not survive A, to C”
              b. Executory Interest – does not occur and the natural end of an estate
                        i. Springing
                                1. divests the grantor
                       ii. Shifting
                                1. divests the grantee
                      iii. created by the Statute of Uses in 1536
F. Rules Furthering Marketability
       1. Rule in Shelley’s Case – applies to fee simples and fee tails
                  a. In one instrument that creates a life estate in A and purports to
                       create a remainder in A’s heirs, and both are legal and equitable
                       the remainder becomes a f/s or f/t in A
                  b. merger applies if there is no intervening life estate
                  c. to A for life, then to A’s heirs → A has a fee simple
                  d. applies only to remainders and not to executory interest
       2. Doctrine of Worthier Title
              a. Inter vivos conveyance from grantor to a person with a limitation over
                  to grantor’s heirs (through remainder or exec. int.) = no future interest
                  in land created in heirs; instead there’s a reversion in the grantor
              b. O →(deed) to A for life, then to O’s heirs
                        i. O’s heirs get nothing and O gets a reversion in fee simple
       3. Destructibility of Contingent Remainder
              a. Remainder in land is destroyed if it does not vest at or before the
                  termination of the proceeding freehold estate (does not apply to vested
                  remainders or ext. int)
              b. A for life, then to B and her heirs if B reaches 21
                        i. If at A’s death, B isn’t 21, B’s interest is destroyed
       4. Rule Against Perpetuities
              a. Every interest must be certain to vest or fail within a life in being + 21
                  yrs
              b. Applies to contingent remainders, ext. int., vested remainders subject
                  to open and class gifts
              c. If age is stipulated in conveyance at 21 yrs or less, the remainder is
                  valid whether the person is (un)ascertained or not (works in a one
                  generation scheme)
              d. If person is ascertained remainder is valid b/c he/she is a validating life
              e. If age is older than 21 yrs and person is unascertained, it is invalid
              f. Modern day modifications
                               i. Wait and see – wait to see if contingent remainder vests within
                                  perpetuities period; the interest is judged by actual events
                              ii. For 90 years – wait for a 90 year period to see if interest vests
                                  or fails – allows one to comply within the perpetuities period or
                                  90 years
III. Co-ownership
              1. concurrent interest – situations where two or more people have right of
              present or future interest
              2. Tenancy in Common – each owner has a separate undivided interest in the
              whole
                      a. each tenant in common has the right to possess and enjoy the entire
                      property
                                   i. they can make agreements about possession
                                  ii. one can possess the whole unless the other co-tenants
                                      object
                      b. no right of survivorship
                              i. when a tenant dies, his interest passes to heirs or devisees
                      c. equal shares are not necessary
                      d. Alienability – tenant can sell, give, devise or otherwise dispose of her
                          undivided share in the same manner as if she were the sole owner of
                          the property
                      e. Modern law favors this – if a conveyance is made to two or more
                          people, not HW, they are presumed to take as tenants in common
              3. Joint Tenancy – each co-tenant has an undivided share of property and the
                  surviving co-tenant ahs the right to the whole estate.
                      a. Created by deed, will, adverse possession
                      b. Right of survivorship – tenants are regarded as a single owner; when
                          one JT dies, nothing passes to survivors and the estate continues in the
                          other JT
                      c. Four Unities
                               i. Time – must acquire/vest interest at the same time
                              ii. Title – must acquire title by the same instrument
                             iii. Interest – have equal undivided shares
                             iv. Possession – each has right to possession of the whole
                                      1. can agree that one tenant actually occupies with
                                          possession and not destroy this unity b/c the other still
                                          has this right
                      d. One JT can unilaterally destroy and turn the JT into a tenancy in
                          common – the right of survivorship is destroyed
                               i. This is accomplished by any act that severs any one of the four
                                  united
                              ii. Each JT has a right to convey their interest, which results in
                                  severance
                      e. At common law this form of ownership was preferred and courts read
                          a devise to two or more people to be a JT. Modern day favors the
                          tenancy in common.
      f. Can only be created by express words indicating that a JT should be
         formed
              i. Some states require that you include language which indicates
                 a right of survivorship
      g. Mortgages (states split about severance)
              i. Title theory – mortgage has the effect of conveying the legal
                 title – the lender holds this title – this act severs unity of title
                 and JT
             ii. Lien Theory – lender does not have the legal title but a lien on
                 the property – does not sever JT (states split about debt)
                      1. surviving tenant takes other’s interest subject to
                          mortgage
                      2. surviving tenant has rights unencumbered by debt –
                          lender looses his security if tenant dies
                              a. if the lender is aware of this rule, they will
                                  typically not extend credit to one JT
      h. Death of JT
              i. Uniform Simultaneous Death Act says that if there is no
                 sufficient evidence that two joint tenants have died other than
                 simultaneously, the property so held shall be distributed
                 equally to the joint tenants
             ii. Murder – if one JT murders the other, ct considers it a
                 severance (time)
      i. Divorce does not sever but the parties can choose to sever if they so
         intend
      j. Bank Accounts – O sets up account for A
              i. True JT - O = ½ and A= ½ interest in money; maintains
                 survivorship rights
             ii. Payable on death – O has until dies and then $ goes to A
            iii. Convenience – A gets screwed; A can use $ to pay o’s bills and
                 then gets nothing
4. Tenancy by the Entirety – created by H+W; held as one person
      a. Created by the 4 unities + marriage
      b. Each tenant has the right of survivorship
      c. Divorce terminates the tenancy
      d. Neither tenant acting alone can destroy
      e. Rights of tenants during marriage
              i. Common law
                      1. husband had right to exclusive possession which could
                          be conveyed to a third party excluding the wife from
                          possession – creditors could reach the husbands right
                      2. husband had the right of survivorship to the entire
                          property
                      3. wife has the right to the entire property if she survived
                          the husband and this right remained with the wife even
                          after the husband conveyed his interest
                       4. neither spouse could partition or sell the property
                           without other spouses consent
               ii. Modern law –Married Woman’s Property Act (2 views)
                       1. gives HW equal rights to possession during the
                           marriage and forbids either acting alone from
                           conveying his/her interest – creditors of one spouse
                           cannot reach the property b/c neither HW action alone
                           could convey his interest – this serves to protect the
                           family home.
                       2. gave W = rights to H – either can convey their interest
                           (like H in CL); neither spouse can destroy the right of
                           survivorship of the other – this view enables creditors
                           to seize and sell one spouses interest (keeps that
                           spouses rights so if W creditors attach, if H dies 1st the
                           creditor gets all but if W dies 1st H gets all interest)
      f. not recognized in about ½ the states
5. Rights and Duties of Co-Tenants
      a. Each co-tenant is entitled to equal possession and enjoyment of the
          entire property
                i. Co-tenants can agree among themselves that one co-tenant has
                   right to exclusive possession
      b. One tenant may lease his share of the property over the objections of
          the other tenant, but the lease is only binding for his portion; the lessee
          has the same rights that the tenant would have if he were in possession
          – courts divided over whether or not upon the death of leasing tenant,
          if the other tenants interest is subject to the lease
      c. Ouster – the wrongful dispossession of a person or exclusion of him
          from property
                i. If one co-tenant ousts another, they must pay the ousted
                   cotenant his share of the reasonable rental value of the property
               ii. Cotenant who cannot access property must demand from the
                   other that she be admitted. Until this demand is made and then
                   denied, there can be no ouster
      d. Generally co-tenants do not owe a fiduciary duty to one another
                i. If one has agreed exclusive possession, they do not have to pay
                   rents to other tenants
      e. When is a duty owed?
                i. Rents from 3rd parties
                       1. Any rents or other income collected by one cotenant
                           from a 3rd party must be equally shared with other
                           cotenants
               ii. Exploiting Natural Resources
                       1. cotenant is accountable for profits derived from a use of
                           land that permanently reduces its value
                       2. must pay a proportionate amount of the net profit
                           received from extracted minerals to her co-tenants
                                     3. for farmed land – cotenant is only responsible for rent
                                        value not profits
                             iii. Taxes
                                     1. each cotenant has a duty to pay their share of taxes
                                     2. if one tenant pays more than her share, she can compel
                                        the other tenants to reimburse
                                     3. if a cotenant is in sole possession, she has duty to pay
                                        taxes up to reasonable rental value of property
                             iv. Repairs
                                     1. repairs are voluntary and for this reason if one tenant
                                        does repairs, they cannot require other cotenants to pay
                              v. Improvements
                                     1. no cotenant has a duty to improve and cannot be paid
                                        for improvements
                                     2. but the improver should get the value added by the
                                        improvements
                                             a. if A/B co-tenants of property worth $20,000,
                                                 and A erects building for $10,000 which
                                                 increases value to $55,000 (land worth $30,000
                                                 and building worth $25,000), A is entitled to
                                                 $40,000 and B to $15,000
              6. Partition
                     a. Only applies to JT and tenancy in common
                     b. Equitable proceeding where the court physically divides or sells the
                         property
                     c. Partition in Kind – physical partition or separation
                              i. After partition, each party owns their portion in fee simple
                             ii. If lot cannot be partitioned in equal value, court may require
                                 tenant with greater value to pay other tenant to equalize the
                                 value
                     d. Partition Sale – sell property and give tenants the proceeds
                              i. This is used if physical partition is not feasible or not in the
                                 best interest of all the parties
                             ii. Typically used for houses, apartments, urban lots and
                                 commercial property
                            iii. Each co-tenant is entitled to equal shares of the proceeds (if
                                 one pays more, they can get more with proof)
IV. Marital Property
              1. Common Law Marital Rights
                     a. during marriage all of wife’s property passed under husband’s control
                     with the exception of clothes and ornaments - jure uxoris
                     b. at death of one spouse
                              i. Dower
                                      1. upon death of husband, W gets 1/3 life estate in all
                                          freehold estates (not to leaseholds or remainders)
                                      2. attaches at moment of marriage
                         3. divorce or death extinguishes
                         4. H‘s attaching creditors are subject to wife’s dower
                         5. W must release her dower for H to sell to another
                ii. Curtesy
                         1. life estate in all of wife’s property
                         2. H has only if issue was born to the marriage (doesn’t
                             have to survive)
                         3. abolished in many states (some give husband dower
                             rights)
2. Modern Statutory Rights
       a. husband and wife have separate property
       b. upon divorce
                i. equitable distribution – in common law states, the poorer spouse
                is entitled to equitable distribution of a share of the wealthier
                spouse’s property
               ii. professional degrees – 3 views
                         1. not divisible property – increased earning potential is
                         not property and therefore not divisible
                         2. provide the supporting spouse reimbursement for the
                             amount of their investment
                         3. divisible property – earning power is divisible property
                             which may be subject to equitable distribution
       c. upon death
                 i. elective forced share – available in most common law property
                     states
                ii. surviving spouse takes part, usually ½ or 1/3, of all real and
                     personal property
              iii. surviving spouse elects to take the forced share or what was
                     provided in will
              iv. most states provide protection for inter vivos transfers that
                     defeat spouse’s elective share
3. Community Property (AZ, CA, ID, LA, NV, NM, TX, WA)
       a. considers HW a marital partnership where both should equally share in
       marital acquisitions
       b. exists in earning of either spouse during the marriage and property
       acquired through these earnings
       d. property owned by either spouse before the marriage or acquired by
           gift, descent or devise is separate property.
       e. By agreement, community property can be converted into separate
           property and vice versa
       f. Upon divorce the community property is divided equally between the
           spouses
4. property rights are determined by the state of domicile when the property is
   acquired. If the couple moves from common law state to community state,
   these rights do not change
              5. what happens when you have community property mixed with separate
                 property?
                    b. If a house is purchased w/ the wife paying 1/3 down before marriage
                        and the remaining 2/3 are paid by community assets after marriage
                             i. Inception of right rule – the character of the property is
                                determined at the time the contract to purchase is signed – the
                                house is her separate property
                            ii. Time of vesting – title does not pass to wife until all
                                installments are paid, prior to this, house is considered
                                community property, once fully paid – wife gets all
                           iii. Pro-rata – community payments buy into a pro rata share of
                                title – each spouse gets what they put into it – W gets 1/3 for
                                down payment and ½ of other investment = 2/3 share
                    c. Burden of proof in community property is on the person who wants it
                        to be considered separate property
              6. Rights of Unmarried Partners
                    a. common law marriage – where an unmarried man and woman hold
                    themselves out to the public to be married and conduct their affairs like a
                    married couple, they are treated as if they are lawfully married. This has
                    been abolished in most states.
                    b. contracts between unmarried partners
                             i. express contract providing how to divide property is
                                enforceable in most states
                            ii. others will not enforce b/c this would be too similar to common
                                law marriage
                           iii. if enforced, a contract cannot give status rights to the other
                                (inheritance, taxes, spousal benefits etc)
                    c. same sex partners
                             i. may contract but may not enter into marriage and acquire rights
                                granted to married persons
V. Waste
     A. unlawful act or omission of duty on the part of the tenant which results in
     permanent injury to the inheritance. One must treat the premises in such a manner that no
     harm be done to them.
     C. It is not considered waste if property is sold to if money is used to take care of the
         person (might be if they take all money and spend it traveling).
     D. It is never waste if there is a current use.
     E. Waste is conduct by the life tenant that permanently impairs the value of the land
             a. Rationale behind
                     i. Grantor intends that the life tenant have general use of the land in a
                        reasonable manner
                    ii. B/c technically more than one person has an interest in the land and
                        fairness requires that one shall not impose economic damage upon the
                        other
             b. Types
                       i. Affirmative – when the life tenant actively causes permanent injury by
                           destroying structures, nature or removing natural resources from the
                           land
                      ii. Permissive – occurs when the land is allowed to fall into disrepair or
                           the tenant fails to take reasonable measures to protect the land from the
                           elements
                     iii. Ameliorating – occurs when the principal use of the land is changed
                           but that change increases the value of the land
      F. Baker v Weedon – court says it would be waste to sell property now b/c the value of
         it will increase greatly in the future. It is not waste for Anna to lease farm b/c it does
         not affect remaindermen interest
      G. The owners of the remainder may enjoin threatened waste by the life tenant or
         recover damages
VI.   Possession
      A. Acquisition by Discovery or Conquest
             a. “in the beginning all the world was America”
             b. discovery of land gave title to the government which discovered it
             c. Native Americans did not posses b/c not settlers; given the right to occupy
                 their land but could not hold title or ownership
             d. possession is an elastic word with different cultural definitions
             e. determination and enforcement of property rights depends on the power of the
                 state to impose its will
             f. Locke – labor theory of possession – one doesn’t gain possession until they
                 work the land
             g. ejectment – a legal action brought by one claiming a right to possess real
             property against another who possesses the premises adversely or who is a
             holdover tenant who remains beyond that termination of a lease but who is not a
             trespasser
                      i. CL- used against intruders and in landlord/tenant relations
                     ii. ML – action to regain possession of a legal title
      B. Rule of Capture – first in time, first in right
             a. if wild animal is captured, it belongs to the captor
             b. must be captured, chasing the animal is not enough
             c. why do we have this rule?
                      i. competition – society wants wild animals captured
                     ii. ease of administration – easier to determine who captured it as opposed
                         to who was chasing it
             d. if an animal has been mortally wounded or trapped so that capture is virtually
                 certain, the animal is treated as captured
                      i. but if the animal is in the process of being captured but the “trap has
                         not shut” there is no capture – another may still come in and take unless
                         the captor has used reasonable precautions against escape
                     ii. domesticated animals cannot be captured if they get free
                    iii. captured wild animals which escape are free for recapture for another
                         unless the animal is clearly not a native of that area (elephant in Penn
                         woods)
              e. custom can sometimes be used to define the legal rule
                       i. when should the court apply custom?
                                1. if custom is long standing
                                2. generally accepted – extensive or pervasive
                                3. affects few people
                     ii. custom needs to be defined narrowly so that it only impacts a small
                         group
                    iii. if you find a custom that affects the majority of the town and the custom
                         is not the same as the legal rule, you should not apply it
              f. to get damages, you don’t need to have possession but an interest in pursuit
                       i. law wants to promote competition but to also keep competition fair
                      ii. if a person is in the process of entrapping animals and a competitor
                          wants to also capture the animals, he may try. A person who does not
                          want to capture the animal cannot interfere
                                1. if A uses a duck decoy pond to capture ducks and a neighbor
                                    cannot shoot at ducks to scare them off but can try to kill them
                                    when they for own use
                                2. an action lies in all cases where the violent acts of others is
                                     done against a man’s occupation
VII.   Law and Economics
       A. efficiency -
       B. externality – includes external costs and external benefits; every cost and benefit
       associated with social interdependencies; exist whenever some person makes a decision
       about how to use resources without taking into account the effects of the decision b/c
       some of the costs or benefits may fall on others
       C. transaction cost – include the costs of obtaining information about persons involved,
       conducting negotiations, coming to terms with the other party and enforcing any bargains
       made – the more parties involved, the higher the transaction costs
       D. productivity -
              1. externality
                       hypo              N neighbors                          J house
                                         plans to remove                      doesn’t have
                                         all trees to send to                 advantage from
                                         send to mill                         shade - unhappy
                                         views as an improvement
                                                  + $100                               - $50
                                if there an externality? Yes
                                what can be done to alleviate it? Bargain between to two parties
                                for change – make N realize the benefit/detriment of his action
                                consider a context where J would pay N to reduce loss
                                                  + $100                               - $150
                       what is an efficient use? Keeping the trees is a socially efficient outcome
                       b/c J would lose a greater amount
                       2 rules:
                                1. N has right to cut trees
                                2. J has right to prevent tree cutting
               under the Coase Theorem – resources should be put to an efficient use
               regardless of legal rule
                        assume transaction costs are $ 0
               if cost to A of installing smoke equipment is $100 and the damage to B
               from smoke is $50, if the right to emit smoke is given to A, A will
               continue to do so b/c B would only offer $50 to stop; if the right to stop
               the smoke is given to B, A will offer between $50 - $100 to buy B’s
               ability to stop. If the figures are reversed, A would stop emitting smoke
               regardless of the right – the market then determines whether the activity
               will continue not the allocation of rights (only works in transaction costs
               are 0 or really low)
               people will continue their behavior is the alternative is too costly
               externalities may provide a benefit to both parties (if N has rose garden
               near J’s property line – may increase value of both properties, but N does
               not have to keep this garden)
E. Ownership
      1. if there are 20 emus and 20 owners –
               a. according to Demsetz theory – systems of communal ownership tends
               to increase externalities b/c there are more people with rights to do things
               that will affect others
               b. creates problems with over killing and over hunting - when we have
               scarcity, we are likely to see a transition from common property to private
               property
      2. people own emus and tenants in common; each emus worth $1000
               a. if one cotenant wants to sell, he can
               b. rule requires sharing under these circumstances
               c. he could capture and kill emus every week? – argue that other
                   cotenants have right to do this too
      3. what happens when you move from common property to private (partition)
               a. as a cotenant, one might not consider the health and food for the emus
               b/c think that someone else will and if one dies, you still have right to
               others
               b. private owner would take an interest in the well being of his emus
F. Acquisition by Creation
      1. a person may acquire property by creating it
      2. it is easier to recover for tangible things than to recover for ideas
               a. absent statute, common law does not provide relief for ideas unless
               they are in tangible form (books, recorded songs)
               b. a person cannot copyright an idea but can copyright the expression of it
      3. is this fair?
               a. allowing knock-offs provides accessibility of more products to more
               people
               b. increases efficiency – encourages competition and increases quality
                   and number of ideas for improvement
               c. freedom – leaves people free to make copies (I can buy a dress or tape
                   and copy it for my own use)
               4. balancing factor?
                       a. lessens new products and ideas b/c not large money incentive to keep
                       creating if everyone could copy
               5. can avoid these problems by patenting ideas (patents are hard to get and take a
               long time, this would not make sense in silk dress case)
               6. to avoid monopoly and encourage competition, the common law generally
               allows copying and imitation
                       a. celebrities are an exception – you cannot use their name and likeness
                       without consent for profit
               7. rights in body parts
                       a. Moore – spleen fatal to Moore but could be used outside of him to
                       benefit others that need hormones
                       b. Dr recognized the value of the spleen but Moore’s spleen itself
                           provided doc with the idea
                       c. Court finds no conversion b/c Π must establish an interference with
                           ownership and rights of possession of cells; no evidence that Moore
                           planned to retain cells after removal; finished product different from
                           what was taken (product of invention)
                       d. If doc took spleen and sells to another for transplant at $10,000 is this
                           conversion? Yes – doc didn’t do anything to make spleen his own
                       e. If doc performs operation and sees what spleen is doing and removes
                           spleen, disposes of it but later based on what he saw, creates a cell
                           line, then who has the property right? Most likely the doc b/c he has
                           done all the work without the use of patients property
                       f. If Moore knew of the value of the spleen, he could have found the
                           highest bidder at a research school
                       g. If you steal sperm of Nobel prize winner from sperm bank, it is
                           conversion but if you go and seduce him for the sole purpose of
                           getting sperm, it is not (argue that this is a gift)
VIII.   Ownership Rights
        a. Right to use – owner has the right to use as they see fit subject to some rights of
           neighbors and the police power of regulation
        b. Right to transfer – owner can transfer property through sale, gift, inheritance or will
        c. Right to exclude – can exclude others; have the right to exclusive possession
                        i. Law does not allow owner to exclude govt workers from accessing
                           those they benefit – benefits of people are more important than
                           property right
                       ii. Owner may require the visitor to identify themselves and state a
                           general purpose
                      iii. Owner cannot deny worker from things that they need or do things that
                           result in commercial advantage for owner
        d. Kaiser Aetna case (Hawaiian marina) – fed law says that navigable water is subject to
           government regulation and is allotted for public use
                        i. Development company dug a connector between lake and ocean –
                           should the public be allowed to enter? No – can charge a fee for public
                           access
                       ii. Court upholds right to exclude others unlike in worker case
                                1. those who want to enter v those who are already there
                                2. 3rd party involved
                      iii. requiring access to public of private property may constitute a taking
      e. move mobile home across property owners land b/c cannot move it around land
         despite the express prohibition by owner – property owner has the right to exclude
         and is entitled to both nominal and punitive damages
              a. what about emergency vehicles? Can cross land b/c of necessity – 0 damages
              b. pizza delivery – nominal damages (sneaking across yard to deliver pizza will
                   result in a minor intrusion and minor damage
              c. each scenario deals with the right to exclude – perhaps it is not only the right
                   to exclude but also the reasonableness of the exclusion
      f. landowner owns the earth below his surface as well as the sky above
              a. who is entitled to caves that go under two properties? The owner of the
                   entrance or the owner of the surface? Could be considered trespass to enter
                   into portion of cave under another’s property
              b. what would be considered trespass?
                        i. Putting you hand into the air space across the property line? Yes
                       ii. Eaves of a carport over property line? Yes
                      iii. Flying over? It depends on how high and for what purpose (can’t
                            charge money to fly people over your neighbors natural wonder
                            without permission)
              c. If you seed clouds over A’s airspace is it trespass to B if he is down the road
                   and doesn’t get any rain? No b/c you don’t invade his air space – could
                   possibly be nuisance though
IX.   Nuisance
      a. an unprivileged interference with a person’s use and enjoyment of their land
      b. one must use their property so as not to injure that of another
      c. is it fair to shut down Δs business simply b/c it interfered with the neighbors? Interest
         of the town or area may outweigh the interest of the business
      d. Test for nuisance:
                        i. Jost test – any unreasonable interference with ones reasonable use of
                            the land is a nuisance
                       ii. Restatement – harm to Π (interference w/ability to enjoy property)
                            must outweigh the social good of Δ’s action to be considered a
                            nuisance
                      iii. Π must show that activity interferes with ordinary and reasonable
                            person’s use (doesn’t take into account hyper-sensitivity of Π)
                                1. amusement park v drive-in theater (park wouldn’t interfere
                                    w/normal use of property; the drive-in has a sensitive need =
                                    no nuisance)
      e. to determine if there is a nuisance the court considers: depreciation of property value,
         discomfort created (noise, smoke), fear of harm, social value of conflicting views and
         who came first
      f. when to grant an injunction
              a. first determine if there is a nuisance
            b. then balance the equities by comparing injuries to determine if there should be
                 an injunction
                       i. ct grants an injunction for a private homeowner who is bothered by
                          bldgs air condition but wouldn’t grant if the building was a hospital b/c
                          the social utility of the hospital is greater than the devaluation of others
                          property
     g. society demands recourse for people who invest in building a nice home or
        establishment when the neighbors unreasonably interfere with the quiet enjoyment or
        value of this property (junk cars/oil refinery)
     h. court stresses market value over people liking or disliking action – this helps alleviate
        the hypersensitive user and provides a good indicator if person or use is reasonable
                       i. How do you determine Full Market Value (value of property in a wide
                          open sale if seller wanted to sell) ask experts in real estate, put on
                          market and see what bids you get, compare to other similar property in
                          the area
     i. Types of nuisance
            a. Public – that which interferes with rights common to the general public or
                 which affects the public directly (public health/safety) – damage = injunction
            b. Private – that which causes a substantial interference with the private use of
                 land and is either intentional and unreasonable or unintentional but negligent –
                 damage = $ and/or injunction
            c. Nuisance per se – public or private wherever it is located regardless of
                 whether the conduct is reasonable
            d. Nuisance per accidens – is a nuisance b/c of where it is located
            e. Spur cattle feed case – determined that the feed lot is a nuisance per accidens
                 and public nuisance b/c of flies are dangerous to public health and property is
                 near a populous area; it is also a private nuisance b/c it interferes with owners
                 ability to sell land – ct requires feed lot to move but forces developer to pay
                 damages b/c he was aware of feed lot when he built area and essentially chose
                 to come to the nuisance
X.   Eminent Domain
     a. the federal, state and local governments have the power to take title to property
        against the owners will
     b. the 5th amendment requires compensation for property taken for public use
     c. statutes and judicial decisions also require compensation
     d. public use
                      i. narrow – public must have the actual use or right to use
                     ii. broad – (modern) condemnation must benefit the public
                    iii. where the exercise of eminent domain is rationally related to a
                         conceivable public purpose, the legislature may take the property
                    iv. a public purpose may be furthered by transferring ownership from one
                         private person to another
                                               a. Poletown – want to condemn residential
                                                   neighborhood so GM can build a plant; there is
                                                   a problem in the city w/unemployment and
                                        industries are leaving; will pay fair market value
                                        for home
                                               i. All agree that condemnation for public
                                               use or purpose is permitted and all agree
                                               that condemnation for a private use or
                                               purpose is forbidden and cannot be
                                               authorized whatever its incidental public
                                               benefit and condemnation for a public
                                               purpose cannot be forbidden whatever the
                                               incidental private gain
                                               ii. Court decides that this is a public
                                               purpose and Detroit condemns
                                               neighborhood and the GM buys in from
                                               Detroit
                                     b. Hawaii Housing Authority – land in Hawaii was
                                        originally owned by the king – a missionary
                                        came in and married royalty – creates Bishop’s
                                        Trust who along with the Doles essentially own
                                        all of the land in Hawaii – this land was leased
                                        for 99yrs to others –these leases are close to
                                        expiring – Housing authority proposes an idea
                                        which would allow tenants in an area to petition
                                        for the sale of the property that they have lived
                                        on
                                               B. Question as to whose public benefits?
                                                      1. good for the majority of Hawaii
                                                          but bad for the native Hawaiians
                                                          b/c the Bishop’s trust supports
                                                          them
                                               C. the USSC says that a state can go to
                                                    the extreme and find some remote
                                                    connection with the public good as
                                                    long as it is rational
e. Just compensation
              i. Typically this is viewed as the fair market value, but the fair market
                 value assumes a willing buyer, and unwilling buyer may want more for
                 sentimental reasons and the inconvenience of a forced sale
f. Physical Occupation and Regulatory Takings
              i. Taking title – if the government formally exercises the power of
                 eminent domain, bringing a condemnation proceeding and taking title
                 to the land, the government has taken the property and must pay for it
             ii. Taking possession – if the government takes permanent possess of
                 property, without taking title, this is a constitutional taking which must
                 be paid for b/c taking possession is the functionable equivalent to
                 taking title
          1. if the government invades the property substantially enough, it
              must pay for this taking even though it has not undergone a
              condemnation proceeding
          2. permanent possession is any permanent physical occupation
              regardless of how small the intrusion into the property is and
              must be compensated for
                  a. Loretto – NY statute allowed the cable company to
                      install cable boxes on the roofs of buildings and drop
                      cable down the side to provide cable access to tenants –
                      ct holds that this is a constitutional taking and landlord
                      should be compensated for the value of the occupation
          3. compensation is required regardless of the public interest
              provided by the taking
iii. Regulatory takings – the government can regulate the use of property
     under the police power for the purpose of protecting the public good.
     If the regulation places a significant burden on the landowner, it is
     sometimes considered a taking
          1. eminent domain v police power
                  a. when the regulation has the purpose or effect of
                      protecting the public from harm, it is an exercise of
                      police power and is noncompensable
                  b. when the regulation has the purpose of exacting a
                      public benefit it is an exercise of eminent domain and
                      the owner must be compensated
          2. Hadachek – Π owns property outside of LA where he makes
              bricks. City expands their limits and annex this area. City has a
              regulation forbidding the making of bricks and operating kilns
              within its limits
                  a. Prior to the regulation, the property worth $800,000,
                      after law worth $60,000 as residential – brick making is
                      not nuisance per se but – ct considered the brickyard
                      harmful and said that he could not make brick there and
                      city did not have to compensate
                  b. A city can change regulations to prohibit existing
                      activities but cannot completely deprive one of the use
                      of his property
                            i. Here, the regulation did not take all value,
                               owner can still use property
                           ii. “there must be progress and if in its march,
                               private interests are in the way, they must yield
                               to the good of the community”
          3. how to analyze
                  a. first id the property taken – define this property
                  b. look for the following:
                            i. Did regulation prevent use of land?
                           ii. Has all the value of the land been taken?
                                             iii. Is there an interest is public health and safety?
                                             iv. Is there a permanent physical invasion?
                                              v. Does the rule mess with a property owner’s
                                                  right to exclude others?
                              4. property may be regulated to a certain extent, if the regulation
                                 goes too far, it will be a taking – this is question of degree
                              5. for all building permits – need to consider if there is a close
                                 enough connection between the provision and the land
                                 development (is what is being required or prohibited strictly
                                 related to the right being protected?)
                                     a. in Nolan case – permit requires an easement across
                                          property to connect beach area – council says their
                                          concern is viewing beach from road – the easement
                                          would not further this – regulations that specify the
                                          height of the house would be ok b/c they directly
                                          further this interest
                                     b. Lucas – does not allowing owner to build on land
                                          remove all value? The court says yes and the
                                          government has to compensate, but does it really?
                                          There are some who might be willing to pay for this
XI. Adverse Possession
              a. if within a number of years specified by statute, an owner does not take legal
              action to eject a possessor of land who claims adversely to the owner, the owner is
              thereafter barred from bringing the action of ejectment. Once the owner of land is
              barred from suing in ejectment, the adverse possessor has title to the land.
              b. the owner must be aware of the other’s use of his property
              c. the possessor must show an actual entry giving exclusive possession that is
                   open, notorious and adverse under a claim of right and which is continuous for
                   the statutory period
XII. Trespass
              1. Π must prove act (invasion), intent to enter without consent
                        a. Any intentional use of another’s real property without authorization and
                            without privilege is actionable as a trespass regardless of harm
              2. don’t have to prove actual damage
              3. reasonable mistake does not negate intent element – accidentally entering another’s
                 land even w/ reasonable mistake is still trespass
              4. air space near the ground is almost as inviolable as the soil
              5. scope - time/place/conduct may transform lawful entry into non-lawful (failure to
                 remove fence stake after snow season is violation)
              6. pollution – court requires accumulation of particles causing actual or substantial
                 damages
              7. trespass v nuisance
                             i. invasion of actual property v interference with ones right to use
                             or enjoy property
                             ii. for trespass you only need nominal damage; for nuisance you
                                 must prove actual damage to property
Easement – a right created by an express or implied agreement of one owner of land to make
lawful and beneficial use of the land of another
Public easement – and easement enjoyed by the public in general

				
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