Property
Professor Fried
Spring 1999

I. Initial Acquisition and Theory of Property Rights
A. Theory of Property Rights
(1) Property ownership is a bundle of rights against other people’s behavior.  Bundle of rights include
	(a) right to possess property
	(b) right to use property
	(c) right to exclude others from using property
	(d) right to transfer property 
(2) Theories of property rights
	(a) Lockean (natural) rights
		1. Labor theory - one owns property rights to whatever he creates with his own labor
		2. Autonomy/personality protection - things essential to identity should be protected
		3. Will theory - the first possessor is entitled due to the exercise of his will
		4. Lockean Proviso - take what you want as long as you leave enough for the future
	(b) Incentive/Utilitarian theory - maximize social welfare
		1. Need incentive to discover and create
		2. Demsetz optimization theory.  Private property regimes provide optimal use of prop
			a. within generations - do not abuse land if you own it for entire period
			b. over generations - taken into account in sale price
			c. for all property (including non-owners)
	(c) Certainty/custom - should assign property rights to promote certainty of ownership.  Doing so reduces conflict
B. Initial Acquisition of Property Rights
(1) Acquisition by discovery 
	- First discovery rule - The first person to discover a parcel of land owns it.  The person must make a symbolic gesture of discovery to have title.  The person does not need to have simultaneous possession of the land, but possession is required at some point afterwards to perfect the title and give property rights.
(2) Acquisition by capture
	(a) Wild animals must be captured to be owned.  Mere chase is not enough.
	(b) Mortally wounded or trapped animals are generally treated as captured. [Pierson v. Post (fox chase) & Ghen v Rich (whale harpooning)]
(3) Acquisition by creation - a person who creates property owns it
	(a) Intellectual property
		1. If not protected under common law or by statute, others have a right to imitate another’s invention (Cheney Bros.)
		2. Federal copyright preempts state law when the fed law covers that area.  The state can only make law where the federal rules do not apply.		
			a. Persona - a celebrity owns the “right of publicity”... their name or likeness cannot be imitated without permission
			b. Hot News - facts cannot be copyrighted under federal law, but under state law, a news gathering organization is allowed exclusive possession of facts for a short period of time in order to make a profit while disseminating facts (INS v. AP)
				(i)   The information must quickly lose value over time
				(ii)  The offending party must be free riding on another party’s labor in collecting and disseminating the information (NBA v. Motorola)
				(iii) The appropriation must threaten the existence of the product (NBA v. Motorola) 
	(b) Rights of the Body - a person does not own their cells once they leave their body (Moore v Regents of University of California)
		- Law of accession - if you take something wrongfully from another and perform significant labor to convert it, you owe reliance damages equal to the value of the input before the conversion

II. Subsequent Acquisition of Property Rights
A. Involuntary transfers
(1) Acquisition by conquest - oust others from title
(2) Acquisition by find
	(a) Finder’s keepers rule - The first person to find lost property has superior rights to everyone but the true owner (Armory v. Delamirie).  Even a thief may have superior rights over everyone but the true owner.
	(b) A land owner has superior rights to first finders for property under land (e.g. gas or oil), but a first finder with the right to be on the land has superior rights for property found above the land.  However, a land owner always has superior rights to any trespasser.
	(c) Mislaid property - A land owner has superior claim over the first finder for mislaid property (McAvoy v Medina).  It is not always clear whether property was mislaid or lost.
(3) Acquisition by adverse possession (“AP”)
	(a) A trespasser in possession of property can oust the true owner and claim title if in possession for the period of time prescribed by statute
	(b) AP requires:
		1. Actual entry - cannot have constructive possession
		2. Exclusive possession
		3. Continuous possession
			(a) Possession of seasonal (summer) property can be continuous as long as it is used during that season every year.  This is allowed since the squatter is continually using the property for its intended use. (Howard v. Kunto)
			(b) Abandonment breaks the continuity of possession
		4. Open and notorious possession
			- Claim of title requirement in NY - must show “actual” occupation of the land either by enclosing the land or cultivating or improving the land (Lutz)
		5. Possession that is adverse or hostile to true owner - possessor cannot have true owner’s permission to be on the land
			a. Possession under claim of right - required state of mind of the squatter... varies by jurisdiction.
				(i)  The majority rule does not care about state of mind and instead applies an objective test - the possessor merely needs to conduct himself as if he is the true owner.
				(ii)  One minority rule requires subjective good faith - the possessor must honestly believe that he owns the land.  This usually also requires that the AP is under “color of title”, where the property is not owned merely because of a defect in the title.
				(iii) A smaller minority rule requires subjective bad faith - the possessor must honestly believe that he does not own the land
				(iv) Most courts apply the objective test to boundary disputes
		6. Possession for requisite holding period
			a.. Tacking
				(i)   A prior possessor’s time of possession can add on to the subsequent owner’s time of possession for statute of limitation purposes.  However, there must be privity of estate, which means that the property must be acquired through a voluntary transfer.  Some courts also require a written document that purports to give title.
				(ii)  Ouster and abandonment do not ordinarily qualify for tacking.  Some jurisdictions allow an exception when B ousters the current squatter A and then A ousters B later.  The length of time of A’s absence is added to the statutory time requirement.
			b. Reentry upon the property by the owner breaks continuous possession by the squatter.  Reentry must be performed under the same conditions as AP.
			c. If owner lacks capacity at the time of the AP (infancy, institutionalized, coma), the statute of limitations does not run until the owner regains capacity.
	(c) Land gained
		1. If a trespasser adversely possesses part of the land under color of title, then he gains title to the entire land.  If there is no color of title, then the squatter only gets the part of the he possessed.  However, fencing in all of the land may grant possession of entire parcel even if the trespasser only uses part of the land. 
		2. When a deed purports to give numerous distinct lots and they are all distributed erroneously, the trespasser only owns lot possessed under color of title.
	(d) Improving trespassers
		1. Traditional view is the property rule of damages, where even if trespasser improves land, if he does not have AP, he has no rights to land or the improvements
		2. Many courts today allow the liability rule of damages, where a trespasser who improves property (built a house) that he does not rightfully own keeps the land with the improvements, but pays market damages.  The greater the waste of the trespasser efforts, the more likely the court will use the liability rule of damages.
  			- Boundary disputes where the squatter is partially on the land usually involve the liability rule of damages or at least compensation to the trespasser when the land value is increased.
	(e) Adverse possessor only gains title to estate that owner possesses.  e.g., if a life estate is possessed through AP, the trespasser only gains the life estate
	(f) Adverse possession of chattel
		1. Majority rule for tolling of statute of limitations is the discovery rule (replacement for open and notorious requirement) - The statute of limitations does not start running until the true owner knew or should have known with reasonable due diligence that they had a cause of action against the specific trespasser (must know who the thief is) 
		2. Minority rule in NY is that the statute of lim does not begin until the owner actually demands the property from bona fide purchasers (due diligence is not required), but the statute of lim begins for the thief at the moment of theft... bizarre rule.
B. Voluntary transfers
(1) Acquisition by gift
	(a) Gifts can be given
		1. Inter vivos - during one’s lifetime.  Once made it is irrevocable
		2. Causa mortes - upon contemplation of one’s impending death (upon your deathbed).  If the donor survives, the gift is automatically revoked
		3. After death by will or intestacy statute
	(b) In order to have an irrevocable gift in inter vivos and causa mortes, the donor must
		1. have present intent to make the gift (cannot say “I will give it to you next week”), and
		2. make current delivery
			a. The grantor must deliver the property if easy to do so.
			b. If it is difficult or impracticable to deliver the property,
				(i)   the majority rule is that you must make constructive delivery (e.g., car keys, deed to land, or bank passbook)
				(ii)  the minority rule also allows for symbolic delivery where there is a token of intent or a written intent to deliver.  Courts are generally wary of symbolic delivery, but allow it for cases with strong of evidence of intent.
			c. Even if the delivery precedes the intent, it is still a gift (e.g., a friend finds property that you lost and you tell them to keep it)
			d. A donor can make an inter vivos gift of property even if he retains a life estate in the property and never surrenders physical possession to the donee before his death as long as there is present intent to donate future interest and constructive/symbolic delivery. (Gruen v. Gruen)
		3. and the donee must accept the gift
(2) Acquisition by purchase

III. Estates
A. Introduction
(1) Intestate statutes - determines inheritance when no valid will is left - prefers bloodlines: general order is first spouse (33%) and children (67%), then grandchildren, great grandchildren, parents, siblings, and then escheats to state
(2) Pir Stirpes - Children stand in their parents’ place when the parents die before they are able to inherit property from grandparents (or someone else) through intestate.  If the parents die before the grandparents die, they never have intestate rights, and therefore cannot leave their intestate interest in the grandparents’ property to someone else by will... the children automatically own the intestate interest upon the parents’ death.
(3) Technically, a person does not have heirs until he dies and his estate is created
B. Possessory Estates
(1) Fee Simple Absolute (“FSA”)
	(a) Absolute ownership of limitless duration over the property
	(b) Property is freely alienable and can be transferred by will or intestate.  A grant for FSA cannot attempt to restrain the right of alienation.  Restraints on alienation are invalid and are stricken from a grant.
	(c) Language to create FSA: “to A” or “to A and his heirs”
		- Today, ambiguous grants are presumed to be FSA
(2) Fee Tail - has been abolished in most states
	(a) Owner possesses a life estate in the property and the property automatically passes to lineal descendants of the original transferor
	(b) Owners can transfer their life estate, but cannot alienate or pass by will their potential heirs’ future interests
	(c) When bloodline ends, the property reverts back to the descendants of the original grantor - called a reversion.  If the grantor has transferred his reversion interests to someone else, it is called a “remainder” interest in the hands of that third party.
	(d) Language to create fee tail: “to A and the heirs of his body” - When this language is used in jurisdictions that do not recognize the fee tail, it is usually interpreted to create either:
		1. FSA
		2. FSA subject to requirement that A have heirs or the prop reverts back to the grantor
		3. Life estate in A and remainder interest in FSA to A’s lineal descendants
(3) Life Estate (“LE”)
	(a) LE is measured by life.  It cannot be measured by term of years or it is a leasehold interest.
	(b) Interest in LE is transferable
		1. Most states do not allow absolute restraints on alienation of a LE
			a.  some jurisdictions allow restraints when there is a specified penalty for violating restraint
			b. partial restraints on alienation are usually allowed as long as they do not unduly affect the marketability of the property (e.g., restrictions such as manner of selling property, time of sale, or persons you can sell to)

		2. However, the buyer only has a LE as measured by the life of the original grantee. The buyer owns a “LE pur autre vie” - a LE measured by a life other than the current owner’s (besides a post grant transfer, LE can also be left “to A for life of B”)
	(c) Legal waste
		1. A life tenant is entitled to all ordinary uses and profits from the land.
		2. Legal waste is when a tenant in current possession of estate acts in a manner that unfairly impairs the economic interest of future interest holders.  A court can order an injunction to cease waste or allow remainder person to collect damages.
		3. Three types of legal waste
			a. Affirmative or voluntary waste - affirmative actions that decrease the remainder value of the property (e.g., overcutting forest for lumber)
			b. Permissive waste - land is allowed to fall into disrepair (neglect).  A life tenant has an affirmative obligation to maintain the premises in reasonably good repair, including an obligation to pay taxes on the land
			c. Ameliorative waste - a life tenant cannot significantly alter the character of the land without the consent of future interest holders, even if the change increases the value of the property.  Cts are reluctant to allow ameliorative waste unless: 
				(i)   the grantor intended the property to remain intact
				(ii)  the property can reasonably be used in its current condition
		4. Economic waste is where the property is not being used for its optimal use.
	(d) If future interest is held by the original grantor it is called a reversion interest.  If it is held by someone other than the original grantor it is called a remainder interest.
	(e) Language to create LE: “to A for life”
		- if the grant does not mention future interests after A’s death, then it is implied that the property will revert back to the grantor’s descendants upon A’s death.
(4) Defeasible Estates
	(a) Three types of defeasible fees (“DF”) - Ambiguous DF are presumed to be FSCS
		1. Fee simple determinable (“FSD”)
			a. A FSD estate automatically ends upon the happening of a certain stated event.
			b. Upon forfeiture, the property reverts back to the original grantor.  The grantor’s future interest in the property is called a “Possibility of Reverter”.
		  	c. Language: “to A for so long as” or “to A during” or “to A while” or “to A until”
		2. Fee simple subject to condition subsequent (“FSCS”)
			a. With a FSCS estate, the grantee’s estate can be terminated at the option of the grantor upon the happening of a certain stated event.
			b. The forfeiture of the property is not automatic.  The grantor’s future interest in the property is called a “Right of Entry”
			c. Language: “to A, but if X event occurs...”
		3. Fee simple subject to executory limitation - detail in future interests section
			a. Same as FSD, except the possibility of reverter is granted to a third party.
	(b) Must have clear and express intent to create DF.  Words of mere hope, purpose, intention, or desire are inadequate to create a DF.  Estate is FSA otherwise.
	(c) When a DF is silent on future interests, they presumably belong to the grantor & his heirs.
	(d) Today, most jurisdictions allow a holder of a future interest in a DF (possibility of reverter or right of entry), to transfer their interest inter vivos or by will.
		1. Jurisdictions who do not normally allow transfers of future interests in DF usually allow a transfer to the current interest holder to reunify the property as a FSA.
		2. A minority of jurisdictions allow transfers of possibility of reverter interests by not right of entry interests.
	(e) Statute of limitations for asserting rights of future interests
		1. FSD - AP by the possessor if the future interest holder does not assert his rights within the statutory period.  If violation of the condition is cured, most courts will probably require that the violation must have been detectable by the grantor before they will start tolling of statute of limitations for AP. 
		2. FSCS - Theoretically, there should be no AP since the future interest holder does not own the land, but some courts create AP anyway.  Most of the courts that do not have AP for FSCS hold that upon the violation of the condition, the right of entry must be exercised in a reasonable amount of time or the right is lost (reasonable amount of time is usually the statute of limitations for adverse possession).  If the current interest holder cured his violation, then O has a right of entry even after the cure.
	(f)  Suits for trespass
		1. FSD - if property has not yet been AP by current interest holder, the future interest holder can sue for trespass after the condition is met since they own the land
		2. FSCS - future interest holder does not own the land, so they cannot sue for trespass.
	(g) DF’s are freely alienable and transferable by will or intestate
		1. The transferee takes the property subject to the conditions	
		2. Conditions restraining the alienation of a current possessor interest in the land are void. Conditions on use that severely affect the marketability of the property are usually held to be equivalent to restrictions on alienation.  However, courts usually allow severe restrictions on use for charitable organizations. 
C. Future Interests in Property
(1) Future Interests in Grantors
	(a) Reversion - e.g., expiration of life estate
	(b) Possibility of Reverter - FSD
	(c) Right of Entry - FSCS
(2) Future Interests in Grantees
	(a) Remainders
		1. A remainder interest is a future interest capable of becoming a possessory estate upon expiration of the estate that precedes it. (e.g., “to A for life, then to B”)
		2. Two types of remainder interests
			a. vested - the interest is vested if:
				(i)   there is an ascertainable person (“to Paul”), and
				(ii)  the interest is not subject to a condition precedent before it becomes possessory
			b. contingent - a remainder interest is contingent if it is not vested.  A minority of states hold that if the contingent remainder does not vest at the time of the termination of a prior freehold estate, the remainder is destroyed
			- There is no implied remainder for a vested remainder, but there is always an implied remainder for a contingent remainder, even if there is no chance of reversion.
		3. To be indefeasibly vested, a remainder interest must be:
			a. indivisible - the future interest holder’s interest cannot be diluted by additional people added to the class (ex: additional children dilute your interest)
				(i)   a divisible vested interest is called a “vested remainder subject to open”
				(ii)  class closing rule - unless the grant ambiguously states otherwise, at the time of vested possession, the class in grant is closed
			b. indefeasible - there is no chance that the future interest holder will lose his vested remainder - his interest is not subject to divestment.
				(i)   a vested interest that is defeasible is called a “vested remainder subject to complete defeasance” or “vested remainder subject to divestment”
		4. When there are two consecutive life estates the person with the second life estate has a vested remainder in life estate
	(b) Executory Interests (“EI”)
		1. EI are interests that cut short the prior possession holder’s estate before its natural end
		2. Two types of EI:
			a. Shifting - divest possession from other grantees
			b. Springing - divest possession from grantor
	(c) The Rule Against Perpetuities (“RAP”)
		1.  The RAP states that if there is any possibility that a future interest will not vest in interest within 21 years beyond the last measuring life then a grant is void
		2. The rule is designed to prevent someone from controlling from the grave
		3. The rule covers EI, Contingent Remainders, Vested Remainders Subject to Open, but does not cover other vested interests or future interests in the grantor (reversion, right of entry, possibility of reverter)
		4. The interest must vest or fail in interest, not in possession.  A future interest may vest in interest, but you still have to wait to gain possession.
		5. The timing is the time of transfer.
			a. upon effective delivery for inter vivos transfers
			b. upon death for wills
		6. Perpetuities period - who can be the measuring life
			a. anyone who is named in a conveyance who is alive at the time of transfer counts as a measuring life.
			b. those not mentioned in a grant, but are essential in determining when the future interest will become vested can count as a measuring life (e.g., for a conveyance to grandchildren, children are implicit measuring lives since they can have more children who will not reach 21 within the period and open the class)
			c. in most jurisdictions, the measuring life does not need to have any interest in the grant (e.g., upon Newt Gringich’s death)
			d. due to administrative difficulties, courts usually refuse measuring lives if the number of people is too large to keep track of (e.g., entire NYU class of 2001)
		7.  If there is any possibility that it will not be decided, then the interest flunks... no relation to probability.
		8.  If the future interest fails, strike out that interest from the grant.  If there is no clear grant afterwards, keep on striking out words until the grant makes sense
		9.  Modern reforms of RAP
			a. The Wait and See Doctrine - do a post-ante analysis instead of looking at possibilities.  However, this doctrine leaves the final disposition of property open for a long period of time.
			b. Courts will rewrite the grant to match the grantors likely intentions
			c. The Uniform Statutory Rule Against Perpetuities - requires that it either:
				(i)   meets the common law rule
				(ii)  all perpetuities are definitely decided within 90 yrs from the time of grant
				(iii) wait and see for 90 years from the time of the grant.

IV. Co-Ownership and Marital Interests
A. Tenancy in Common (“TIC”)
(1) TIC has no right of survivorship.  A tenant’s interest in the property is transferable to his heirs by will or intestate 
(2) An interest in TIC is transferable inter vivos without the knowledge of other tenants
(3) A grant ambiguous as to form of cotenancy is assumed to be TIC rather than JT
B. Joint Tenancy (“JT”)
(1) JT features the right of survivorship.
	(a) When a tenant (“T”) dies, the remaining tenants share his interest.
	(b) A party cannot override the right of survivorship.  Any attempts by a joint T to transfer his interest by will or intestate is void.
(2) Four unities of JT
	(a) possession - each party has an undivided interest in the property
	(b) time - each interest in the property must have been created at the same time
	(c) title - each T must have acquired interest through the same conveyance
	(d) interest - each T must have an equal fractional interest and an identical type of estate
(3) Traditionally, all four unities were required to be a JT.  The co-ownership was a tenancy in common if any of the four unities were not met.  However, today, many jurisdictions have weakened these requirements.  Some jurisdictions:
	(a) allow different fractional interests
	(b) no longer require third party straw-man for unity of time and title when passing ownership from sole possession of one party to that party and another as joint T’s
(4) A conveyance may be split.  It may create a joint tenancy in combination with some other form of tenancy. (For example 3 people can own property.  2 people own interest as JT’s and as a group with third person as tenants in common) 
(5) Severing a JT
	(a) If a JT interest is transferred inter vivos, the interest automatically becomes a tenancy in common since the unities of time and title are violated.
		1. A joint T cannot prevent other T’s from transferring their interest and severing the JT
		2. A joint T can sever the JT by conveying his interest to himself.  A straw-man is not required so long as there is a clear intent to sever the JT (Riddle v Harmon)
			- However, this rule potentially allows for fraud in the conveyance.  A T could convert his interest to tenancy in common while in private and not reveal his conversion if the other T dies first.  Some jurisdictions require a joint T to notify a third party when converting his interest in order to prevent this form of fraud.
	(b) The majority rule is that a mortgage given to one T does not sever the JT.  Since the T’s interest ends at his death, the other joint T’s take the property free of liens and encumbrances.  However, a minority of states do hold that the execution of a mortgage by one joint T severs the JT
	(c) A partitioning of the property terminates the JT.
	(d) To create an indestructible JT, a grantor should grant the property as a life estate to both parties with a remainder fee simple contingent on who dies first.
C. Tenancy by the Entirety (“TBE”)
(1) TBE is only created for property owned jointly by a husband and wife
(2) TBE features the right of survivorship 
(3) Any conveyance to a husband and wife is presumed to be a TBE
(4) TBE can be terminated by
	(a) divorce - becomes TIC
	(b) death of a spouse
	(c) voluntary transfer of ownership interest from one spouse to his/her partner 
(5) Alienation
	(a) Majority rule is that neither spouse can unilaterally alienate their interest in the property through either a voluntary or involuntary transfer.
		1. Property held in TBE cannot be partitioned or sold without consent of both spouses
		2. Creditors of one spouse cannot reach property held in TBE
	(b) Minority rule in NY & NJ is that transfers are allowed, but the remaining spouse and creditor/buyer hold property as joint tenants.
D. Rights and Duties of Co-ownership
(1) All forms of co-ownership feature unity of possession, where each party has an undivided interest in the property.  This means that:
	(a) no T can be excluded from use or can exclude other tenants from using the property, and
	(b) each T has the right to complete use of the property
(2) If there is no agreement beforehand, a co-T in possession of the prop does not need to pay co-T’s not in possession unless there is an ouster.  Each co-T has a right to possess the whole prop
	(a) In order to have an ouster, the co-T must show either:
		1. Adverse possession by the T in possession.  The T in possession must act in a manner that is inconsistent with the non-possessory co-T’s interest (e.g. change locks or give notice that they are not welcome on the land)
		2. That they demanded possession and were denied it by the co-T
	(b) There can also be a constructive ouster, where the T in possession makes it virtually impossible for the other tenants to use the property (e.g., bring in 100 cats or physically abusive ex-husband lives there)   
	(c) The remedy for ouster is normally accounting, but a court can order a partitioning
(3) If the owners are renting to a third party, they must split the profits from the rental.
	(a) A T is not responsible to pay the other tenants if he rents the property for an amount less than the FMV of the property
	(b) Non-possessory T’s can rent out the prop. against the possessory T’s wishes
(4) Maintenance expenses - each co-owner is liable to pay the maintenance expenses and carrying costs according to their percentage of ownership interest unless all parties are not in possession.  If one of the T is not in possession and another T is in possession,
	(a) if the expenses are less than the imputed rental value of the property, the T in possession must pay all expenses
	(b) if expenses are more than the imputed rental value of the property, the owners must share the expenses equally
	 -  This creates a strong cliff effect at the point when the expenses equal the rental value
(5) Improvements - The co-T who pays for improvements cannot get reimbursed by the other owners.  However, he can demand the incremental rent generated from the improvements if the property is rented and the incremental value of the property due to the improvements if the property is sold.  The incremental amount is based on FMV, not cost.
(6) A co-T may not commit waste
(7) Partitioning
	(a) two methods the court can use for partitioning
		1. Partition by sale - force the sale of the property and divide the proceeds
		2. Partition by kind - sever the co-ownership and physically divide the property
	(b) Traditionally, a partition by sale was ordered by the court only when:
		1. it would be impracticable or inequitable to physically divide the land
		2. the overall interest of the owners would be better promoted by a sale
		- The modern tendency of courts is to force the sale 	
E. Interests in Marital Property
(1) Community Property (“CP”) Regime
	(a) Property and earnings on property acquired through the earnings of either spouse during the marriage is owned jointly.  Each spouse owns a 50% interest in the property.
	(b) Each spouse is allowed unilateral use of the property, but have fiduciary duty to partner to properly use property
	(c) Real property and jointly owned businesses cannot be sold without consent of both parties.  However, a spouse can sell personal and intangible property without consent.
	(d) There is no right of survivorship.  However, a spouse can only dispose of 50% of the CP by will.  The other spouse automatically gets a 50% interest.
	(e) CP cannot be transformed into JT property without consent of the other spouse
	(f)  Separate property
		1. Whatever is not CP is separate property.  This includes:
			a. Property and earnings on property held by either spouse prior to marriage
			b. Property and earnings on property acquired by one spouse via gift or inheritance during the marriage.
		2. Separate property can be transmuted into CP when one spouse donates the property to the CP.  However, there must be a clear demonstration of intent to donate.
	(g) Divorce 
		1. Upon divorce, real property is subject to jurisdiction where it is located while personal property is subject to the jurisdiction of the couple’s domicile.
		2. Each spouse retains their separate property and CP is split between the spouses.  
			a. The majority rule is just and equitable distribution.  The split is presumed to be 50%, but can be different if equity demands
			b. The minority rule requires an automatic 50% split.
(2) Non-Community Property Regimes
	(a) During the duration of the marriage, property is separate unless it is commingled or used to purchase jointly held property.  However, each spouse has an obligation to support each other.
	(b) Divorce - equitable distribution of property
		1. The equitable distribution rules require property held by either spouse to be divided equitably depending upon factors of (a) need, (b) other assets and liabilities, (c) the duration of the marriage and the contribution to the marriage, (d) custody of children, (e) future earnings ability, and in a minority of states (f) fault
		2. The majority rule is that all property held by either spouse at the time of divorce is subject to equitable distribution.
			a.  One minority rule excludes assets brought in prior to the marriage.
			b.  Another minority rule only allows equitable distribution of assets actually earned during the marriage.
(3) The majority of courts have held that an increase in future earnings potential (e.g., MBA degree) is not a marital asset.  It is not transferable, has no exchange value, and terminates upon death.  The minority view adopted by NY recognizes enhanced earnings ability as marital property.
	- Some courts hold sacrifice as equitable factor when dividing property instead of treating enhanced earnings capacity as property to be divided.
(4) Distribution of property upon death
	(a) CP - The spouse retains a 50% interest in the CP and the dead spouse transfers his/her share by will or intestate
	(b) Non-CP - Spouse leaves state imposed percentage of all property to spouse and rest by will.  There is no distinction between marital and separate property.

V. Private Land Use Controls
A. Easements (“E”)
(1) An E is a grant of a limited non-possessory right to use another person’s land.
(2) An E is either
	(a) appurtenant - the rights attach to the land and all future owners of prop have E rights
		1. terminology
			a. the parcel benefited by the E is the dominant land
			b. the parcel burdened by the E is the servient land
		2. transfer of E with the land
			a. benefit side - the benefit passes automatically with the dominant land even if not mentioned in the instrument of transfer
			b. burden side - the burden passes automatically with the servient land UNLESS the buyer is a bona fide purchaser without notice of the E - 3 kinds of notice
				(i)   actual notice
				(ii)  constructive/record notice - E included on deed and can be found by the buyer with due diligence
				(iii) inquiry notice - if there is a visible sign of the E, the person will be burdened even if they do not ask			
	(b) in gross - the rights attach to the person and does not run with the land
		1. No dominant estate since the person, not the land, benefits, but there’s a servient estate
		2. Transfer of E
			a. Modern cts allow transfers if the granting party intended them to be transferable
			b. If ambiguous, cts presumed the E is not assignable if for personal use, but presumed to be assignable if for commercial purposes
	(c) if the language in the grant is ambiguous, cts will assume it is appurtenant
(3) E can be defeasible - e.g., appurtenant E in FS determinable
(3) An affirmative E can be created by
	(a) grant - created expressly in writing - subject to statute of frauds
	(b) reservation
		1. The property grantor reserves the E when he transfers the land.
		2. Some modern cts allow the grantor to reserve the E for a third person (Willard) - the common law bar was a mere formality - easy to get around anyway by using the third person as a strawman or by expressly granting them the E before the sale.
	(c) by estoppel - a normally revocable license to use the land becomes irrevocable (i.e., an easement) through equitable principles - because justice requires it
		1. access is necessary to use other interest in land (e.g., profits interest)
		2. investment - the party using the property under permission invests in justifiable reliance (induced by the owner’s actions) upon their ability to use the property in the future
		3. sometimes granted where there is a clear intent to grant an E, but it lacked the technical requirements
	(d) by implication
		1. implied by prior use - created when the land is divided and there is a readily apparent existing use that the parties reasonably intended to continue (e.g., prior owner using a private road on the parcel that is transferred)
		2. implied by necessity - landlocked setting - an E of right of way will be implied by necessity when the grantor grants a portion of the land and provides no way out
			a. if multiple exits, the last transaction grants the E
			b. even if the grantor clearly intended not to give the E, cts will often grant it anyway for public policy reasons - do not want to create oligopoly situation.
			c. if the parcels were not previously unified, some states will use eminent domain to take the E
			d. if the necessity is eliminated (e.g., another neighbor grants easement), the E by necessity disappears.  If the necessity later reappears, the E is granted against the same person who was subject to it before - it lies dormant
	(e) by prescription - adverse possession
		1. the owner of the servient estate can defeat AP by
			a. granting explicit permission
			b. interrupting trespasser’s use 
				(i)   signs are not enough
				(ii)  if a gate or fence fails, some cts will hold that use was not interrupted
		2. exclusive possession
			a. some jurisdictions require that the property is only used by the servient estate (e.g., a private road used by the owner and the squatter is not exclusive).
			b. other jurisdictions require it to be used by an individual, not a group of squatters
		3. public prescriptive E’s
			a. cts will enforce public prescriptive E’s even when AP has not been met
			b. property value is enhanced by public use
			c. ex - beach area below high water mark is public, but the only way to get to the beach area is to go through privately owned dry sand - cts imply public use of the dry beach area to get to the water (Matthews v. Bay Head)
(4) Scope of use of the E
	(a) The scope of the E is fixed by the terms or conditions that created it.
	(b) This scope not only includes improper type of use, but excessive use
	(c) However, the manner, frequency, and intensity of the use of the E may gradually change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate (R3d of Property '4.10)
	(d) Also, courts may allow an equitable expansion beyond the scope of the E if there is no harm to the servient party and a significant detriment to the dominant party if the expansion is not allowed (Brown v. Voss)
(5) Termination of E’s.  E’s last until they are terminated by:
	(a) abandonment - the owner must indicate an intent to abandon, not simply non-use. Also, must be a servitude... an owner cannot abandon a FSA
	(b) written consent of all affected parties
	(c) merger - when dominant and servient estates are unified in the same hands - not automatically revived in most jurisdictions if they divide again.
	(d) AP by the owner of the servient parcel or a third party
	(e) by statute - marketable title act - holds that E’s and covenants expire over time unless reasserted and recorded
	(f)  sale of servient estate without notice of E
	(g) misuse - cts only usually allow termination in cases of extreme misuse
	(h) useless - the E no longer has a purpose (e.g., the right to swim in a lake after the lake has dried up).  Cts use the doctrine very cautiously - normally only allowed for necessity when the necessity no longer exists
(6) Negative E’s
	(a) Neg E’s are restrictions upon rights to use one’s land in a manner normally allowed.
	(b) Historically, cts usually only allowed negative E’s for access to air, light, and stream water, lateral support of a building.  Some modern cts also allow for protection of a scenic view, historic preservation, and conservation.
	(c) Neg E’s must be created expressly in a signed writing - cannot be created by prescription, necessity or on public lands.
(7) Profits interest - right to take resources of land (e.g., mining or farming) - usually coupled with E’s to get to the land.
B. Real Covenants and Equitable Servitudes (“ES”)
(1) Cov’s and ES’s are contractual promises not to do something on the land.  The main difference between the two is the remedy allowed:
	(a) Cov’s bring monetary damages
	(b) ES’s bring equitable relief - injunctions
	- also there are slightly different requirements for the burden to run with the land
(2) Covenants are normally pure K rights.  To become a real cov and run with the land, the right must be transformed from a K right to property right.
(3) Difference between a real cov and an E
	(a) An E gives the holder the right to use someone’s land that would otherwise prohibited
	(b) A cov gives the holder the benefit of the other sides obligation to perform for them
(4) Requirements for a cov to run with the land 
	(a) burden side - requires:
		1. original promise in writing
		2. intent to run with the land
 		3. notice to the grantee
		4. horizontal and vertical privity - for covs (but not for ES’s)
		5. the cov touch and concern the land (“T&C”)
	(b) benefit side - requires:
		1. writing
		2. intent
		3. vertical privity - only non-AP requirement (Tulk v Moxhay)
		4. T&C - a minority rule only requires the burdened parcel to have T&C
	(c) Writing requirement
		1. Only the grantor needs to sign
		2. Implied reciprocal negative covenants.  Writing of covenant not necessary for all deeds if there is a general scheme (Sanborn v McLean).  Requires that:
			a. All parcels in question must start from a common owner
			b. There must be a common scheme from the start to restrict
			c. The parcel must benefit from the reciprocal burdens placed on other parcels.  
			d. Notice - only a minority rule requires the buyer to check his neighbor’s deeds
			- implied reciprocal neg cov’s do not require that all lots be equally burdened
	(d) Horizontal and vertical privity - only for covenants.  ES’s do not require privity
		1. Vertical privity - the relationship to successors in interest.  Requires:
			a. a voluntary transfer - the land cannot be acquired through AP
			b. of the same estate - cannot be a lesser estate (e.g., only a lease). However, the rule on this have weakened and most cts today allow for lesser estates
		2. Horizontal privity - the original relationship between the burdened and benefited landowners.  They must have been in a grantor/grantee relationship (e.g., one owner transferred the land to the other) when the covenant was created
	(e) Touch and concern  (“T&C”) - not required for the benefit side for ES’s
		1. Traditional rule
			a. cov must change the physical use to which the owner may put the burdened lot
			b. the benefit must be physically enjoyed by the dominant parcel
		2. Modern rule broadens the tests - The cov must have some connection to the actual use and enjoyment of the land.  It must affect the parties as landowners
		3. Examples:
			a. T&C on both parcels - cov for one party to maintain the fence between the 2 lots
			b. T&C on benefit side - A promises to keep B’s driveway, which B does not use, in good repair - the burden is not attached to the property of the burden-holder
			c. T&C on burden side - owner agrees to rent and maintain a sign for a company - the benefit is not attached to the land of the corporation
			d. No T&C on either side - cov to buy newspaper
				- If no T&C, the cov probably relates only to the tastes of the original land user and is economically wasteful to force the benefit on subsequent purchasers who may not value it 
(5) Restrictions on covenants - A court will not enforce covenants that promote unconstitutional behavior - e.g., racially restrictive reciprocal cov’s (Shelley v. Kraemer)
(6) Termination of cov’s & ES’s
	(a) written release - must get agreement from all parties involved in the cov
	(b) by its own terms - time-limited or conditional
	(c) by merger - dominant and servient parcel enter into the same hands
	(d) by acquiescence - when the benefited party tolerates continual lapses in the cov by the burdened party, he effectively waives the cov  
	(e) by abandonment - the benefited party tolerates violations in the surrounding parcels, but not the current one.  The reciprocal rights no longer have value
	(f)  by statute - marketable title act - holds that E’s and covenants expire over time unless reasserted and recorded
	(g) by sale of servient estate without notice of covenant - burden does not run with the land
	(h) changed conditions - cts are strict - will lift the cov only if it no longer has any value to the party trying to enforce the cov and the burdened party benefits from not enforcing the cov
		1. As long as cov can be enforced and there is a benefit, the cov will be enforced even if it is more valuable to the burdened party if the cov is not enforced (Western Land Co.)
		2. If D relies upon the cov when buying the land and believes that the cov has value even if the land is more valuable without the cov, the cov may be enforced (Rick v West).
			a. However, many cts will not follow this rule if the market does not show value to the cov or if they detect illegitimate reasons for the holdout (e.g., monopoly power or for spite)		
			b. Even when not a holdout situation, cts will sometimes release the cov because of transactions cost of getting everyone to agree in good faith - Eminent Domain

VI. Ownership and Control Over the Use of Property
A. The Right to Exclude
(1) Collision between trespassing and 1st Amendment rights
	(a) Normally, even if the private land functions as a public square (e.g., a shopping center), a person is allowed to use 1st amd rights on privately owned property if (Lloyd v Tanner)
		1. the speech is site specific (e.g., picketing actions by a shopping center) or 
		2. there is no local public place available
	(b) However, state law can reconfigure property rights of exclusion to include free speech for invited guests (Pruneyard)
(2) Discriminatory exclusion in commercial settings
	(a) 1964 Civil Rights Act
		1. Prevents businesses from restricting customers on the basis of race, color, religion, or national origin
		2. Only brings injunctive relief
		3. Exempts private clubs
	(b) 1866 Civil Rights Act - '1981 and '1982
		1. Although originally interpreted as only preventing the state from discriminating on the basis of race, it is now read as preventing private parties from discriminating as well
		2. Gives a private right of action for damages
	(c) Fair Housing Act (“FHA”)
		1. Prevents discrimination on the basis of race, color, religion, sex, or national origin in the sale or rentals of housing - includes the advertising of the properties
		2. Can get injunction and damages in fed ct or arbitrate through HUD
		3. There is an exception for single family housing and multiple family rentals with less than five families with the owner living there, but still cannot discriminate in the ad
		4. Do not need intent.  Most cts require either intent to discriminate OR disparate impact
		5. Taking the prop off the market to avoid selling it to a protected class violates the FHA
		6. Steering
			a. Practice by real estate agents of steering different classes to different neighborhoods violates the FHA
			b. Violation of FHA if you can show practice of steering away protected status people through advertisements that only show white people (Ragin v NY Times)
B. Nuisance
(1) Nuisance is an interference with someone else’s quite enjoyment of their land (trespass is interference with their right to possession) - an invasion of their land
(2) Traditional test - P wins as long as the P is substantially injured by the nuisance - ignores the burden and injury to the D from not engaging in the activity... whoever comes first wins
(3) Restatement (Torts) test - includes Balancing test - the ct also balances the costs to each party and the costs to society (Boomer v Atlantic Cement).  Elements under R2d
	(a) a substantial interference with the P’s use and enjoyment of his land caused by the D
	(b) the interference must be intentional and unreasonable, or the negligent - unreasonableness balances of the gravity of the harm v the utility of the conduct.  Factors include
		1. the extent and character of the harm
		2. the social value of the P’s use
		3. its suitability to the locality in question
		4. the burden on the P from avoiding the harm
	(c) the P must be entitled to use and enjoyment of the land
(4) Arguments for nuisance rules - Coase theorem efficiency arguments
	(a) The theory
		1. All social costs are joint costs - nuisance claims arise not from the fact that one landowner is invading the space of another, but instead from the fact that two owners wish to use their property in ways that are incompatible with each other
		2. In a world without transaction costs, the outcome would be unaffected by entitlements - it is always in the joint interest of the two sides to ensure that resources are not being put to their most highly valued use.  All that entitlements do is determine who has to bribe whom to secure that optimal outcome.
	(b) Problems with the theory
		1. If transaction costs, the default rules for liability would set the rule. Least cost avoider rule - set entitlements so as to give the party in the best position to minimize social costs the incentives to do so
		2. Wealth or technological advantages, wealth effects - relative wealth of parties affects the bargaining outcome
		3. Endowment effects - psychological  effect - people are generally willing to pay more to prevent from losing a right than to get it in the first place
		4. Static v. dynamic analysis - if we set rules in advance, people will not place themselves in a position where the nuisance is created.
	(c) Fairness - distributive effect and the party that came second had notice of the nuisance.
(5) Remedies for nuisance
	(a) Cts can either award injunction (property rule) or damages (liability rule) for nuisance.
	(b) The traditional presumption is strongly in favor of injunctions.
	(c) However, they tend to give damages if: (Boomer v. Atlantic Cement)
		1. the behavior is socially worthy,
		2. it is suitable for the particular location, and
		3. it is impractical to prevent the invasion
	(d) Comparisons between damages & injunction remedies
		1. In a world with transactions costs, the balancing test and damages reduces the bars to fair efficient bargaining that maximizes the overall utility.  Injunctions give the holder monopoly power.  Also some rights may be inalienable.
		2. The suit may not include additional parties who are adversely affected by the behavior.  An injunction benefits them while damages do not.  However, a ct should take into account injuries to third parties when applying the balancing test
		3. However, a ct is not always efficient at measuring damages and the fact-finding to determine the damage amounts requires more effort than simply granting an injunction
C. Homeowner’s Associations (“HA”)
(1) Restrictions created by HA’s are essentially reciprocal negative covenants
(2) Covenants by HA’s are enforceable unless they are unreasonable (Nahrstedt v. Lakeside Village)
	(a) the unreasonableness is in reference to the common interest of the development as a whole
	(b) they are enforceable even if the individual case does not cause a nuisance or interfere with the rights of other owners
D. Zoning
(1) The government’s power to zone comes from either
	(a) Police Powers - right to regulate private conduct for public safety and welfare.  These powers are implied as part of federal power.  The gov’t does not have to compensate for loss due to zoning regulation
	(b) Eminent Domain (“ED”) - gov’t has right to take private property for public use.  However, it must compensate for the value of the property as required under the 5th amendment.
(2) Zoning laws are presumptive valid and are not takings
(3) A comprehensive zoning plan restricting the use of properties according to areas designated by a legislative body are not normally unconstitutional as a whole, but individual application of arbitrary portions of the plan may be (Village of Euclid v. Ambler Realty)

VII. Eminent Domain and Regulatory Takings
A. Eminent Domain (“ED”)
(1) The gov’t is allowed to take private property for public use.  However, under the 5th amendment, it is required to compensate the property owner.  The rule applies to fed, state, and local gov’ts
(2) Some states have their own ED clauses in their Constitution that can further restrict the right of the state and local gov’t to take without compensation
(3) Property cannot be
	(a) taken by gov’t
	(b) for public purpose
	(c) without just compensation
(4) Public purpose
	(a) Normally construed in a broad manner similar to police powers - health, safety, welfare of the public (Parker v Berman)
	(b) Only usually an issue where the gov’t acts as an intermediary for other private owners
		1. Even if the land is not used by the public, as long as the purpose of the taking is for the public good, it is not unconstitutional (Midkiff & Poletown)
			- serious questions in Poletown though about the public good when it is taken to make a large corp like GM happy and prevent them from relocating - lack of proper compensation makes small group bear burden of taking for the general public’s benefit
	(c) When gov’t marks a property a historical landmark it is not normally a taking (Penn Central)
(5) Just compensation
	(a) Entitled to FMV of prop including land and building
	(b) If regulated in a way found to be equivalent to a taking, you are given the decline in the FMV from regulation
	(c) However, gov’t assesses FMV and does not include subjective value, goodwill, or the costs of relocating
B. Regulatory Takings
(1) Physical Takings
	(a) A permanent physical occupation by the gov’t of a portion of your land is a taking per se (Loretto).  The extent of the invasion or damage caused by the invasion and the public benefit from the invasion is not important (Loretto - cable lines in building).  It is still a violation of right to exclude and a dignitary harm
	(b) Temporary occupations are subject to a balancing test taking into the account the burdens on each party before it becomes a taking.  Factors to look at include
		1. The owner has no control over timing, extent, or nature of the invasion
		2. A stranger is authorized to invade
		3. Who holds title to the property that is forced onto the owner’s property 
	(c) Physical invasions - sometimes questions of what is physical (e.g., floods, electronic data) - typically defined as actions that would be a common law trespass if done by a private party
	(d) Permanent includes continuous use - e.g., military jet patterns always done over same house
	(e) Taking (Loretto) vs. legitimate restriction on right to exclude (Pruneyard)
		1. Initial configuration of rights - Constitution abolishes the right to discriminate
		2. Invitee v. non-invitee - difference between forcing an owner to let people on the prop (Loretto) vs. letting people speak after they are invited on the prop (Pruneyard)
	(f)  Rent control statutes are not takings (Escondido)
(2) Regulatory Takings
	(a) Harm prevention test - harm prevention vs. bestowing a benefit (Hadacheck v. Sebastian)
		1. Police power if preventing a harm - to prevent nuisances
		2. The only real use of the harm prevention test is that the prevention of a common law nuisance is not a taking per se.  The test is highly discredited in most other contexts. There is no functional distinction between harm prevention and bestowing a benefit.  It is based purely upon baseline legal entitlements
	(b) Extent of value taken test (Pennslyvania Coal v. McMahon)
		1. Not all decreases in property value caused by gov’t regulation are takings - must be excessive taking based upon the relative diminution in value
		2. However, there is a serious difficulty in measuring value
			a. how much was taken
			b. what is the measurement of the denominator?  Full property rights or a portion of property rights - depends on what the law recognizes as separate property rights
		3.  If not almost 100% look at investment backed expectations (Penn Central)
			a. The measure of value is the distinct investment backed expectations of owners
			b. The following are more likely to be protected and deserve compensation:
				(i)   primary expectation when the investment is made
				(ii)  significant invested capital and regulation does not allow for a reasonable return on capital
				(iii) present uses of the land
		4. If not 100%, the ct should also balance the harm that the regulated conduct causes vs. the extent taken
		5. Transferable Development Rights (TDR’s)
			a. Gov’t can give TDR’s as compensation as value lost from regulation
			b. However, they do not imply that the regulation is a taking and they are not necessarily just compensation for the regulation
(3) Gov’t Exactions - trading license for taking - even if gov’t has legitimate police power to regulate conduct, it may not necessarily be able to cash out that power through exaction.  Also requires:
	(a) Nexus - there must be a nexus between the harm allowed by granting the license and the abatement that is exacted in return (Nollan)
		1. The decision depends partially on the broadness of definition of harm (e.g., visual access to beach or just access)
		2. The gov’t has the burden to prove the Nexus (Dolan)
	(b) Rough proportionality - the price the gov’t is demanding must be roughly in proportion in value to the harm allowed by granting the license (Dolan)
(4) Harm prevention vs. Nuisance
	(a) Deprivation of 100% of the value of property is a taking unless it is preventing a common law nuisance, in which case it is a valid use of police powers (Lucas).
		1. Social benefit in eliminating activity is not enough, it must be common law nuisance.  
		2. All property rights are subject to the background constraints of common law nuisance, but not to later legislative determinations.
	(b) Problems with common law nuisance requirement:
		1. This rule freezes the definition of nuisances, which are meant to change over time as technology and scientific knowledge improve (e.g., environmental issues)
		2. The legislature already performed a balancing test when it passed the regulation.  Should the cts be reviewing it? Who determines what a nuisance is? How much power does legislature have to redefine nuisance?
		3. What about a reduction in owner rights that are not common law nuisances, but that are basic essential rights to the other parties.  Do they need to be compensated? e.g., civil rights legislation, abolition of slavery - these were not compensated
(5) Academic theories on ED
	(a) Fairness (Ackerman) - Supreme ct should look at what lay observer would think.  When would neighbors and society say that the gov’t went too far?  However, circular argument because people are outraged because of preexisting rights established by the ct
	(b) Utilitarian (Michelman) - courts should measure efficiency (“e”) gains from action vs. the demoralization (“d”) costs from taking and the settlement (“s”) costs for compensating the owner.  If e > d or s, the gov’t will take action.  If d > s, compensate.  If s > d, do not compensate.  However, the factors are difficult to measure
	(c) Libertarian - want to strengthen private property rights.  When the prop is taken for reasons other than harm prevention, it is a redistributive tax.  Should be treated as a tax program.  Epstein said that taxes are takings.  No need to compensate if benefits and burdens are distributed throughout society.  If purely redistributive intent, it should be compensated.  However, why are current property rights privileged?
	(d) Social view - everyone benefits from society - state created and defined property rights - it can do whatever it wants to the property, limited by ED.  However, just because it can take property does not mean it should... demoralization costs. 

VIII. Landlord-Tenant Law
A. Leasehold Estates
(1) Tenancy for Years
	(a) the lease must be for a fixed determined period of time
	(b) do not need notice to terminate a tenancy for years
(2) Periodic Tenancy
	(a) continues for succeeding periods or intervals (e.g., month to month) until landlord (“L”) or tenant (“T”) give proper notice of termination
	(b) can be created expressly or by implication
		1. land leased with no mention of duration, but rent is paid periodically
		2. oral term of years in violation of SOF
		3. holdover doctrine - L holds over T in residential lease after it has expired
	(c) must normally give proper notice to terminate periodic tenancy
		1. the lesser of a period or 6 months
		2. however, the parties can privately agree to modify the notice requirements
(3) Tenancy at Will
	(a) tenancy for no fixed period or duration - lasts as long as L or T desire
	(b) both parties have the right to terminate at will, unless expressly stated otherwise in the lease
	(c) reasonable notice must still be given or bad faith
(4) Tenancy at Sufferance
	(a) created when T has wrongfully held over after expiration of the lease
	(b) exists until L evicts the wrongdoer or elects to hold him to a new term
(5) Inalienability of lease (e.g., no assignments or subleases) is allowed.  However, a minority rule still requires that even if bar on alienation in lease, L must act in good faith (reasonably) in denying requests by T for alienation

B. L’s Rights & Duties in the Case of a Defaulting Tenant
(1) T has a duty to pay rent.  If T does not pay he can be evicted.  T can also be evicted for other material violations of the lease or for committing waste
(2) Eviction when T in possession - Self-help by L
	(a) Majority rule allows L’s to resort to self help even it T in possession as long as
		1. T breaches and L is entitled to possession, and
		2. L reenters peacefully and does not use unreasonable force
	(b) However, minority rule quickly gaining in momentum - If T is in possession, L can evict through judicial action or sue for rent, but L cannot resort to self-help and forcibly oust the tenant (Berg v. Wiley) - helps prevent potentially violent scenarios
	(c) Some jurisdictions hold no self-help rule to be default rule that can be changed by K rather than mandatory rule 
	(d) Some jurisdictions also only apply the no self-help rule to residential leases
(3) Eviction when T is out of possession and has abandoned property
	(a) Under classical property rules, L could
		1. treat the nonpayment of rent as a surrender by the T - the lease is terminated
		2. ignore the abandonment, and hold the T liable for unpaid rent as if in possession. 
		3. relet - relet on T’s behalf and T liable for deficiencies in the new lease including costs involved in reletting (e.g., advertising)
	(b) New majority rule imposes a duty to mitigate upon the L (classical rule did not)
		1. L cannot ignore the abandonment and must make efforts to relet and avoid waste
		2. Volume-sales (other available units)
			a. L does not have to mitigate because he would have had two sales if not for T’s breach.  L would have been leasing a unit anyway, so they should not be hurt because it happened to be T’s apartment
			b. L must treat unit as if it was one of his vacant stock and show it as if it were just another vacant unit - shown randomly
			c. If potential customer only wanted T’s unit, not a lost volume-seller case 
		3. If L does not attempt to mitigate, some jurisdictions allow the L to get money from the T that he would not have been able to get through mitigation anyway.  Others say that he is out of luck 
	(c) Abandonment (non-possession) requires clear intent of not returning (Berg v. Wiley)
(4) Summary eviction proceedings - cts try to keep the proceeding speedy.  A minority limit defenses such as lack of habitability to keep the trial speedy and require the T to bring their claim later in a full litigation case
(5) L’s avoid some of the problems from wrongful T’s by setting up security devises, such as deposits, advance rent, and rent acceleration clauses
C. T’s Rights
(1) L must put T in actual possession as the start of the lease - T sues L if holdover T in possession
(2) Right to quiet enjoyment - T has a right to quiet use and enjoyment of the premises without interference from the L
	(a) overt breach - by excluding T from possessing the land (e.g., eviction)
	(b) implicit breach - Constructive Eviction... three elements
		1. substantial interference
			a. act or failure to act that is attributable to the L
			b. does not need to be permanent - can simply be regularly recurring problem
		2. notice - T must give notice of the problem to the L and the L must fail to correct the problem in a reasonable amount of time
		3. T must vacate the premises within reasonable time after L fails to remedy the problem - T cannot be in possession
	(c) L is responsible for the behavior of other T’s
		1. L has a duty not to permit nuisances on the premises
		2. L has a duty to control common areas
	(d) The right to quiet enjoyment is an implied promise that L makes in every residential and commercial lease - caveat lessor (e.g., “as is”) no longer applies
(3) Implied warranty of habitability
	(a) L implicitly promises that the premises will be maintained in a habitable condition for the duration of the lease
		1. Must be fit for basic human habitation... bare living requirements including running water, plumbing, heat in the winter, and no infestations
		2. Local housing codes are the floor for standards of habitability
		3. Applies to latent and patent problems - eliminates assumption of risk by the lessee
	(b) Implied by law (cannot be waived) in all leases in which the rule applies. 
		1. The majority of cts apply it only to residential prop
		2. Some only apply it to multifamily housing or exclude agricultural leases
		3. A minority of cts also apply it to commercial leases
	(c) When L breaches the warranty of habitability, T can either
		1. move - move out and terminate the lease
		2. repair - repair the problem and deduct the cost from future rent
		3. reduce - T can reduce rents equal to the reduction in the FMV of the property because of the defects.  However, most states require the T to pay the missing rent into escrow until the dispute is settled (by ct adjudication or Statute of Lim) to show good faith 
		4. remain - pay rent and remain in possession, but sue L for damages
	(d) T must give L notice of the breach and allow an opportunity for cure
	(e) Policy issues on warranty of habitability
		1. It eliminates substandard social conditions and eliminates the social costs and externalities from these conditions
		2. Theoretically L will pass on cost of warranty to T.  Poor person already cannot afford better conditions, or they have rented a better apt.  However, the empirical evidence on L passing costs on to T’s is not clear.  Even if it is, it is still fixing market failures, so it is not necessarily bad
(4) L cannot make retaliatory evictions - L cannot evict or penalize T for being a whistle blower (e.g., for reporting housing code violations)
(5) A minority of states also require that T has a right to renew at the end of the lease unless just cause - L cannot evict T at end of lease without just cause - usually included in rent control statutes as well
(6) Tort liability for defective conditions
	(a) Majority rule is that L subject to duty of reasonable care to prevent harm - cannot be waived
	(b) Common law minority rule does not hold L liable for injuries caused by defects in the prop
D. Rent Control
(1) Rent Control controls rent raises that L may incur upon existing T’s
	(a) vacancy decontrol - most common rule - protects only existing T’s.  However, it provides a great incentive for L to harass existing T’s
	(b) rent stabilization - rent is controlled as long as the prop is on the market.  Some restrict L’s ability to take the prop off the market (e.g., cannot convert it to a condo)
(2) Policy issues on rent control
	(a) Against
		1. Only redistributes wealth, but it does so randomly - the beneficiaries are often not in need of help
		2. Reduces supply of housing as L’s leave since they cannot get adequate return on equity
		3. L will invest less into the property and general housing conditions will fall - only invest enough to avoid problems with warranty of habitability 
	(b) For
		1. Empirical evidence is ambiguous - T’s may not bear burden - L may not pass through costs - depends upon the elasticity of the supply and demand in the housing market
		2. Property owner already has significant sunk costs, so he will not necessarily abandon the land and cannot convert if not allowed to by local law
		3. Provides stable communities since people do not move