PROPERTY OUTLINE!!!
Professor Fried – Spring 1999

I.	Initial acquisition and justification of property rights

A.	Types of property
	Real – land and any affixed structures 
	Personal – anything else
1.	Real, tangible – real estate
2.	Real, intangible – nothing
3.	Personal, tangible – car, blood cells
4.	Personal, intangible – stocks, copyrights

B.	Two ideas of property
1.	Blackstone’s traditional view 
a.	Complete, absolute dominion over something (vertical relationship)
b.	Voluntary contracts between owners governing horizontal relationships
2.	Realist view of property
a.	Interests in property can be divided (bundle of sticks)
	(1)  air rights, mineral rights, easements, etc.
b.	Now includes anything of economic value 
	(1)  ex. Spouse’s earning potential, right to a job (tenure) etc.
c.	Basic ownership rights
	(1)  right to possess
	(2)  right to use
	(3)  right to transfer
	(4)  right to exclude
d.	Shift from idea of vertical relationship between person and 
		 thing to horizontal relationship between people with respect to  
		 things 
			(1) starts to give rise to involuntary limitations (based on 
		 	    conflicting interests)
			(2) So ownership is never absolute

C.	Moore v. Regents of the University of California
1.	Facts:  Unauthorized taking of cells during operation; Suit for 
			conversion because researchers used his cells to create a 
			profitable new cell line.
2.   Holding:   Claim not allowed because of policy – extension of 
			       conversion law into this area will hinder research by 
			       restricting access to needed body parts and stuff.
3.	Mosk’s dissent:   Body is your temple. You should have total 
					      control over it and own everything that comes 
   					      from the labor of your body. (Locke’s labor theory) 
					      If others are allowed to violate your body without 
					      your consent, (like by taking your cells), it’s like 
					      indentured servitude (Fried says – a little 
					      melodramatic)
4.	General arguments for rights to property
a.	Autonomy/personality theory – property ownership is 
		  linked to one’s sense of self
b.	Utilitarian theory – private property ownership maximizes 
				  social welfare
			c.	  Labor theory – right to whatever one creates by one’s labor
    		(1)   Law of accession – If you take something and 
		       contribute a lot to it, you probably get to keep it. 
		       (just have to give the value of the original thing 
		       back to the original owner – reliance damages)
	So Moore wouldn’t get anything 
	because his cells were worthless to 
	begin with
(2)	Whoever gave the thing value deserves the right 
				        to it
d.      Efficiency theory – property owners will use property more 
		  efficiently
e.	         Will theory – I took it because I wanted it. (who wants it the    
             most gets it)
f.	Personality theory – ownership of resources is important to one’s sense of self

D.	Appropriation of “unowned” land
1.	Johnson v. M’Intosh
a.	Question:  Did the Native Americans own the land (since they supposedly didn’t develop it)? So can they convey the land?
b.	Facts:    got land from Indians.   got land from a chain of title through King James’ land grant.  
c.	2 possible bases for title
(1)  1st discovery rule – you discover the land, you get the sole 
right to acquire it and establish settlements on it; possession 
perfects title so if you don’t possess it and someone else 
moves onto it, you lose the right to it. (similar to adverse 
possession)
	Europeans recognize it so it holds.
	Lockean theory – labor used to 
discovery it - so it becomes your own.
	Utilitarian – if 1st discovery is not 
recognized, countries have no incentive 
to discover.
	Certainty – it’s universally recognized 
so a better chance of avoiding conflict.
	Pure will theory – I want it so I get it; somehow being the first person to get there gives ownership credibility;
(2)	Indians and the 1st discovery rule – we didn’t recognize 
Indian ownership of the land because they didn’t own the land in the way we recognized; they weren’t Christians and they didn’t use the land appropriately;
(3)	Conquest – idea that might makes right; you assimilate what you conquer so that once conquered, previous owner cannot transfer title; Conquered people can stay by privilege, not by right.
	Moral basis for conquest: Europeans had to take them 
over because they could not be ruled and were 
warlike. wouldn’t live together in harmony;
(4)	Too late to fix now because there are no records to figure out which Indians would own what land.
2.	1st Possession
a.	Homesteading – a way that U.S. transferred lands from common ownership; 
(1)	 Justifications for taking ownership from a commons
		1st discovery/possession
		Homesteaders “discovered” the land and 
	      possessed it and so they owned it.
          Pure will theory
•	Act of possession is an expression of will; By 
exercising your will, you take the right of others to possess it;

b.	Locke’s 2nd Treatise
(1)	Labor theory – we own ourselves; we own our labor; we must own whatever we mix our labor with.
(2)	From essentialist view that whatever you put your labor into fuses to you; becomes part of our essential selves
(3)	We own unsettled land by being 1st possessors, fixing it up and making it our own;
  ex. If you take land and farm it (mix labor with land), you 
own the land whatever comes from it		
  Based on the idea that land is abundant; doesn’t hold 
   when land is scarce
(4)	Sacrifice theory – I worked hard to get it so I deserve it.
  Problem – the end product is not just the value of the labor 
but the labor + the resources; you deprived all others of the 
resources you took. Why should you be the one to get the 
stuff?
(5)	Locke’s proviso never holds unless resources will never be 
scarce (and possession of them will never interfere with another’s rights). This would only happen when resources are so abundant that the need for private ownership doesn’t even exist (ex. Air)
c.	Nozick’s justification for  Locke’s proviso when resources are scarce (real world)
(1)	Lockean proviso applies when taking ownership doesn’t infringe on the rights of other.
(2)	Appropriation of scarce resources might be justified if owners do not leave future generations any worse off. (then the Lockean proviso is satisfied)
(3)	Proviso does work because private ownership of property increases its value. So future generations are better off. (No conflicting interests)
 
E.	1st possession of wild animals
1.	Pierson v. Post
a.	Rule of capture – wild animals must be captured to be owned; mere chase is not enough; (Mortally wounded or trapped animals are generally treated as captured.)
b.	Compare to 1st discovery vs. 1st possession
c.	Dissent – discusses local custom, effort put forth and likelihood of success – Argues utilitarian theory - that capture rule would not give incentive to hunters (because they could chase it for a while and then lose it to someone else)
2.	Ghent v. Rich
a.	Facts – whale harpooned at sea with marked harpoons; When whales rise to surface, finder is supposed to contact killer; Finder gets a fee; Here, finder sold the whale to be processed; Rick says “The guy’s an asshole.”  
b.	Ct holds for killer and makes finder pay back the value of the whale when sold (-) the expense of processing it
c.	Applying labor theory – the one who labors 1st wins (the one who “captured” the whale – mortally wounding it)
d.	Applying essentialist view of labor theory – whoever changes the nature of the thing through their labor (by mortally wounding it) wins
e.	Utilitarianism – maximizes incentives to do what’s best for society – here, to continue to hunt additional whales after harpooning one, rather than staying there, waiting for it to surface
f.	Certainty – having a defined rule for who owns it (the whale) promotes certainty and peace; Custom will show what the rule is; Custom produces a rule which best promotes certainty, peace and utility; Therefore, best to defer to custom where there is one (cts aren’t best place to decide what the rule should be)
F.	Arguments for private property 
1.	Tragedy of the commons - Hardin
a.	Open access will lead to overgrazing; Each person has incentive to add additional cattles because it benefits them directly - while the cost is spread out among the whole group. (externalities)
b.	Other ex’s – cheating on taxes – personal benefit while cost spread to everyone; or barbecuing in your back yard – benefit to you, pollution spread to everyone
2.	Demsetz
a.	Private property is the solution for 3 things
1)	Optimal use of property w/in one’s own generation
	  owner has to  bear the costs of her actions; If 
	    overused, property will lose its usefulness.
2)	Optimal use over generations
	  owner will have an incentive to use the property in 
   a sustainable way – because if not, won’t be able to    
   sell it later (future problem)
3)	Optimal use of All property
	  Private property reduces transactions costs because   
          one does not have to negotiate with many people
	    (every owner of a piece of communal property) in 
	    order to get anything done
b.	He compares the benefits/costs of private property to benefits/costs of an unrestricted commons. Howver, there could be a restricted commons that would achieve some of the same things. Ex. Lobster gangs of Maine
3.	Reich – private property is good because it allows individuality. Eccentricity should be given value. Allowing people to have private property protects this.
4.	Utilitarian argument for private property – that owners would negotiate with each other to produce the best outcome for everyone. 
a.	ignores the fact that transactions costs keep this from actually happening 
b.	ignores the fact that people value money differently (utility value of $) – the importance of the $ to the individual will affect how they will bargain for things – so land will not always end up being used optimally 
1)	$ is not as great an incentive to people who have a lot of it; poorer people are willing to take less for things and can’t offer enough to get what they want
G.	Intellectual property
1.	Generally
a.	almost all is creation of labor
b.	use is not necessarily exclusive (one person’s use often doesn’t limit another’s)
2.	Pro-IP argument
a.	Utilitarian 
1)	total utility is increased by protecting intellectual property rights – gives incentive for innovation/invention
3.	Anti-IP arguments
a.	Utilitarian
1)	restricts dissemination of information so that it can’t be put to its optimal use.
					 makes the holder of the rights a monopolist – can 
					    raise the price so that fewer people can get access
					  access decreased because of the transactions costs of 
					    negotiating with the holder of the rights
					  holder of rights can restrict for any reason – like to 
					    protect artistic integrity
b.	Cost of enforcement of these rights is high because it’s difficult 
      to tell if infringement has occurred
4.	Ideal situation – protection for the author/inventor – while also allowing the information to benefit the public. Patent and copyright laws try to balance these interests by the letting creator control the use for a limited time followed by free dissemination of information
5.	Copyrights 
a.	Type of rights granted
1)	Subject matter - info has to be of the type that Congress intended the statute to protect 
2)	Some subjects or types of rights are specifically not protected
3)	news facts can’t be copyrighted
4)	a voice can’t be copyrighted (not covered by subject matter of statute)
5)	(states have created a separate “right to publicity” for celebrities allowing them to profit from their likeness etc.)
b.	INS v. AP
1)	INS (news service) was using info gathered on the east coast by AP
2)	Ct. granted AP limited rights to “hot news” (letting them have protection just until the news was no longer “hot”)
3)	Congress did not protect news facts, themselves. Exception here is made because the value depends on the time factor, not on the facts.
4)	If not, AP would be driven out of business by paying all the info gathering costs & wouldn’t have any incentive to gather the info
5)	Lockean argument – AP put the labor in, they’re entitled to the fruits of their labor
c.	NBA v. Motorola
1)	NBA wanted to protect information about the games as “hot news” until they were over; keep Motorola from transmitting scores during the game
2)	Ct. says no 
	 the information is being broadcasted live 
	    so the it’s already publically available 
 	  Motorola is gathering the info themselves – not 
	    stealing it from someone else
	  NBA’s business isn’t threatened by this

II.	Involuntary transfer of property

A.	Acquisition by find
1.	Generally
a.	rights with respect to owner and later finder
b.	property was previously owned, lost and then found
2.	Armory v. Delamirie
a.	Rule – 1st finder’s rights are superior to everyone except the original owner
b.	Facts: kid finds jewel in chimney; took it to goldsmith, who took the jewel out of the setting saying finder’s keepers. Don: “What a dick!”; Ct. says no – 1st finder has superior rights over everyone but the true owner
c.	Disincentive for people to steal because original owner still has superior right; Also because 1st finder would prevail over later “finder”
d.	Usually this protects the true owner because the person who has it now is generally the owner; Protects owner from having to prove that all of her stuff is hers;
e.	Efficiency – want people to be able to entrust their goods to another; this rule protects these relationships (dry-cleaning etc)
3.	Hannah v. Peel
a.	Facts: visitor to house finds a broach; turns it over to police; Police return it to the owner of the house, even though he hadn’t known it was there; finder sues house owner to get it back; Ct – 1st finder gets it because the property owner didn’t know it was there (the property owner wasn’t the original owner, item was considered lost)
b.	(Generally – when stuff is on your own property, you’ll be the 1st finder)
c.	When you own property – you have a right to stuff under or attached to the land but not to lost things lying on the land 
d.	If the property owner knows the thing exists on the property but doesn’t know where it is – they have a superior claim to the finder
e.	When the owner lives there, she probably has a superior claim because it’s more likely that it’s not really lost
4.	McAvoy v. Medina
a.	Facts – guy finds purse in barber shop
b.	Ct differentiates between lost and misplaced things 
1)	misplaced things – something intentionally put somewhere but not intending to leave it – these things seen as put into the care of the property owner (who becomes a bailee – has to hold the stuff so true owner can return for it); Reason – property owner has best chance of getting the stuff back to the true owner
2)	 lost things – generally 1st finder has superior right

B.	Adverse Possession
1.	Defined – circumstance under which people who possess property without good title by their very presence get title through the rightful owner.
2.	An exception to usual rules
a.	property rules – you can only get property through voluntary transfer
b.	liability rules – you can take the property but have to pay for it
c.	adverse possession – doesn’ t into either 
3.	Justifications
a.	utilitarian – user is making best use of the land so they should get it (over the owner who is not doing anything productive with it)
b.	identity – user has been there a long time so the land becomes important to her;
c.	to protect innocent possessor – person who has been adversely possessing without knowing it gets to keep it – protects status quo (those who are mistaken or hold a defective title)
d.	to reestablish true ownership defeated by a technicality
e.	labor – user worked the land, it became part of them
4.	Requirements
a.	actual entry
b.	giving exclusive and continuous possession
c.	for the requisite statute of limitations period
d.	that is open and notorious,
e.	hostile – (in a fashion inconsistent with your not being the owner)(and without consent of the owner)
f.	and under claim of right (state of mind)
(1)	Ryan says, “I don’t think claim of right has anything to do with state of mind.”
(2)	3 possible meanings (different jurisdictions require different things)
	   state of mind doesn’t matter
	   requires that the possessor think they own it
	   requires that the possessor know they don’t own it 
	     but want to (minority)
	most places require some variation of a-f
g.	some places require possession under color of title
		   the possessor has a title that is defective somehow
		   if this is required, almost all adverse possession 
		     claims are defeated
h.	If owner gives explicit permission for use – no adverse 
possession (then owner isn’t seen as giving up the land – it’s like they are using it); Harder for owner to prove if the permission is implicit; 
i.	When you adversely possess, you get the rights of the person who was supposed to be possessing it during the time you were there. If the person was leasing, you only take the lease from them (so you only get to stay for the length of the lease and have no claim against the actual owner)
j.	If owner is disabled somehow (in jail, underage, insane), the statute of limitations doesn’t start to run until the disability is lifted
k.	What do you get by adversely possessing?
(1)	if it’s under color of title, you get the whole thing
(2)	if not, you only get what you were actually possessing (by fencing it in or using it) 
5.	Van Valkenburgh v. Lutz
a.	2 standards for proving adverse possession
(1)	under color of title – easier to make a case
(2)	not under color of title – higher standard
		substantial enclosure
		usual cultivation or improvement (like the 
		owner would have done)
b.	majority opinion seems to confuse the state of mind requirement
(1)	require that possession be “hostile” – which they take to mean living on the land like it’s yours but knowing it’s not
(2)	while at the same time requiring good faith (claim of right – that possessor thinks they own the land)
(3)	So adverse possession is impossible!    
c.	dissent says
(1)	state of mind is irrelevant – you only have to conduct yourself as an adverse possessor
(2)	usually cultivated or improved is enough for you to get the whole piece of land
d.	general rule – if under color of title – get the whole piece of 
land through adverse possession; If no color of title -  get the piece of it that you enclosed and possessed; If you don’t enclose it, you only get the part of it that you possessed/used.
 
6.	Howard v. Kunto
a.	innocent surveying mistake; everyone lives on land adjacent to the one they own
b.	summer occupancy that is uninterrupted for the purposes of adverse possession meets the continuous possession requirement so long as it is consistent with the character of the land
c.	tacking rule – when a chain of people are adversely possessing property one after the other, as long as they voluntarily transfer title from one to the next (privity), the current possessor can tack previous possessors’ time to their own to meet the statute of limitations period  
•	if person gets ousted and then returns, they can tack their past possession to their current possession but can’t add the ouster’s time to yours
•	applies to owners as well – when the statute of 
limitations starts running against the owner, it continues when owner transfers the property to a new owner (as long as adverse possession conditions continue)
d.	If you build on the wrong lot in good faith – modern tendency is to let you stay and pay fair market damages for the value of the land OR to let you move the house
(1)	In practice means – either you get the land free by adverse possession or you get to stay but have to pay for the land
(2)	(so if you build on a lot just because you want it, you don’t get these opportunities because it’s not under color of title and not in good faith)
7.	O’Keefe v. Snyder (adverse possession of chattels)
a.	files a complaint 30 years after painting disappeared. She didn’t say anything at the time.  
b.	Rule – statute of limitations doesn’t begin to run until owner knows or should know through due diligence that the cause of action exists (that they can sue the current possessor to get it back) (until the owner discovers or should discover who the possessor is, they don’t know who to sue; they can’t bring a COA) (“due diligence”  - varies with the facts)
(1)	New York rule – gets rid of the due diligence requirement for the true owner; does not protect an innocent buyer (wants to discourage trafficking in stolen art by making the buyer check the title); the statute of limitations does not begin to run in favor of the innocent buyer until the true owner demands return and the buyer refuses (so that the buyer can’t adversely possess unless the owner just drops the issue at that point);
III. Voluntary transfer of property
A.	Gratuitous Transfers
1.	Basically
a.	Inter vivos 
(1)	between the living
(2)	gift promised and delivered 
	      during life
	(3)  irrevocable
b.	causa mortis 
(1)	 in anticipation of death 
(2)	revoked if the donor recovers
(3)	must be delivered before death (because you can’t transfer something after death without the formalities of a will)
(4)	ct. much tougher on these because of the potential for fraud (Rick – “because you’re old and dying and you think this guy’s your son but he’s really your neighbor or something” 
c.	at death – wills, intestacy statutes   	 
d.	to be irrevocable 
(1)	must intend to give the gift (make a promise)
(2)	must be a delivery 
		it makes the gift more real
	it prevents people from being bound by 
		impulsive promises
		don’t want to destroy the underlying altruism)
(3)	If either of the two fail, the donor can still revoke.
e.	Majority rules for delivery
(1)	If it’s easy to hand over, you have to deliver the thing itself
(2)	If hand delivery is impractical 
		constructive delivery – giving something that 
		is a means to get at the actual property (ex. 
		key)
						symbolic delivery 
							giving of something meant to 
							represent the property (ex. deed)
•	ct. generally hostile to symbolic delivery 
–	stronger intent required for it to stand up
				(3)	acceptance also required
f.	bailor vs. bailee 
(1)	bailor – someone who temporarilt entrusts property 
	to someone else’s possession (ex. leaving car with 
	mechanic)
(2)	bailee – holds onto someone else’s property w/o change in ownership
g.	gifts of checks 
(1)	no good until it is cashed (because it can still be revoked)
(2)	if the person dies before you cash it, you don’t get it (because the $ hasn’t been delivered)
h.	property ownership – includes transfer right
(1)	subject to limitations – for spouse and children; federal 
	and state taxes
i.	Justification for estate taxes
(1)	Lockean idea – right of a person who labors for their money seems stronger than their heirs right to it
(2)	Transfer of wealth - want to level the playing field for those who aren’t as wealthy
(3)	^ these arguments balanced against the idea that parents should be able to provide for their heirs anyway they want 
3.	Newman v. Bost – causa mortis 
4.	gifts
a.	facts – guy was dying; tried to give all his crap to this girl he was sleeping with or something; gave her keys to a bureau that had an insurance policy in it; he dies intestate; 
b.	Ct. says – 
(1)	Receives the bureau – constructive delivery of the key
(2)	Doesn’t receive the insurance policy  because it could have been delivered by his old, paralysis-stricken ass
(3)	Received the furniture in her room because he delivered it to her room (inter vivos)
(4)	Didn’t get the piano because although he said it was for her – no delivery
5.	Gruen v. Gruen
a.	(Klimt painting case)
b.	guy sends letter to son gifting the painting to the him but reserving a life estate; guy dies; stepmother says it wasn’t a valid gift because there was no delivery;
c.	Ct. says this was a valid gift – because letter shows intent; Delivery here not required because a life estate was retained. It would be silly to make the guy send the painting to the son and have the son lend it back (especially when it’s something so valuable)
d.	If it had been a letter conveying the painting outright – it would not have been valid without actual delivery.
e.	Acceptance is implied when there is actual delivery. Here, there was no actual delivery. Court implies acceptance here because the item is so valuable.
 
IV. Possessory estates  
A.	Different ways to carve up property rights
1.	Generally
a.	property rights can be divided over time
(1)	estates can be divided into current and future interests
(2)	allows owners to control the future use of their property
b.	Freehold estates (ownership interests)
(1)	fee simple absolute
(2)	fee simple conditional
(3)	life estate
c.	Non-freehold estates (all other interests)
(1)	tenancies
(2)	licenses
d.	Possessory interests – interest in land that is currently in your possession (freehold or not)
e.	 Non-possessory interest – future interest (freehold or not)
f.	Ex’s
(1)	possessory freehold – life estate; FSA
(2)	possessory non-freehold – tenant
(3)	non-possessory freehold – remainder interest in FSA
(4)	non-possessory non-freehold – future tenant
B.	3 ways to transfer property
1.	inter vivos – transfer by gift or exchange (sale)
2.	affected (divised) by will 
a.	divise – the gift  
b.	testator – the writer of the will
c.	legatee – gets stuff from a will
3.	by intestacy statute
a.  person dies with no will 
	b.  heirs – get stuff through the intestacy statute
			c.  usual statute (usual rules of succession)
	1st – 1/3 to spouse; 2/3 to kids
	2nd – if no spouse – 100% to the kids (no kids – all to spouse)
	3rd – if no living kids – lineal descendants of the kids
	4th – if no lineal descendents – to parents
	5th – if no parents – to siblings
	6th -  no siblings – statutes vary
	No heirs at all – stuff escheats to the state
(go to next level only if there is no one in the previous group)
d.  per stirpes rule – if the person who is supposed to take
	is dead – stuff goes to their lineal descendents, if any (as a 
	stand-in for the person)
 	(1)  ex. if B is going to inherit under intestacy when his father 
	dies – but B dies first – his estate is established at that point 
	(so the father’s stuff is not part of his estate) (there’s no 
	future interest in the father’s stuff because none is 
	established – the father didn’t have a will – could have made 
	a will later and prevented B from getting anything) 
	Therefore, when B’s father does die later – his stuff goes 
	directly to the grandchildren (and isn’t divided with B’s 
	former wife – because W has no relationship to the father 
	directly – she could only have inherited the father’s money 
	through her husband and his estate is already gone)
e.   even in a will – there are still things you can’t do
		     f.    prima genitor – 1st son and his lineal male descendants inherit 
		rather than a daughter (so 1st born grandson over any 
	daughters)
C.	Types of estates
1.	fee simple absolute - you own all ownable rights, present and future, subject to the rights of non-owners (private and government)
a.	under common law –  
(1)	words of limitation - are used (tell the extent of the estate) To create a FSA – have to say “To A and her heirs” (the heirs don’t get anything; “and her heirs” is just intended to mean “in FSA”)
(2)	words of purchase – say who gets the stuff (ex. 
      “To A …”)
(3)	If you don’t use the correct words of limitation – 
      you give something less than a FSA (and the rest   
      goes to someone else)
(4)	If the grant is silent, imply a reversion in the 
      original owner.
b.	modern law
(1)	Virtually all states have abolished the formal 
       language requirement;
(2)	Now, it is assumed that the person is conveying 
					      the largest interest they have (like the entire FSA) 
					      (unless they use words to limit that)
		(3)  “and her heirs” still means nothing
(3)	with everything but a FSA, some other interest is 
					       out there
2.	2 groups of future interests
a.	reversionary interests – grantor retains  future interests 
	(if property to reverts to grantor and grantor is dead – stuff 
	goes to whoever got her other property by intestacy or will – 
	or she could will her reversionary interest to someone else)
b.	remainder interests – the future interest is retained/obtained by someone other than the grantor
c.	ex. “To A for life, remainder to B”
	(1) under common law – life estate to A; life estate to B, 
	   reversion in O
	(2) under modern law – life estate to A; FSA to B
d.  future interest “falls in” = becomes possessory
3.	Fee tail
a.	“To A and the heirs of her body”
b.	designed to keep property in the line forever despite the wishes of the descendents
c.	property goes to lineal descendents (each generation gets a life estate) of the original grantee
d.	If that line dies out and the grantor didn’t specify what happens then, it would revert to the grantor (and if she is dead, then to her heirs under intestacy or to whoever she willed the rest of her estate to)
e.	 Whoever holds the property cannot break the fee tail – can only sell her life estate to someone else – but after she dies, the fee tail continues
f.	Modern fee tail 
	(1) places where fee tail still exists - DE, MA, Maine, RI
 	(2) person can easily break it by conveying a fee simple to 
		someone 
				(3) or conveying it to a straw man and having it conveyed 
					back to them
				(4) if no one breaks it, the fee tail continues
				(5) can’t break a fee tail by will or intestacy – only by 
					conveying a FSA during life
g.	In states with no fee tail – interpretation of fee tail creating language:
	(1)  “To A and the heirs of her body” means FSA for A
	(2) Or means FSA for A with restrictions that
		 If A dies w/o descendants, FSA goes to the party 
		    with the remainder interest under the fee tail; (if the  
		    fee tail grant doesn’t have a remainder – reversion 
		    to the grantor)
	     (If A does have kids – it becomes a regular FSA and 
	      passes to whoever A wants or by intestacy)
(4)	Or means life estate to A and FSA to her lineal 
      descendent (in effect, entails the estate for 1 
      generation)
4.	Life estate
a.	commonly given by rich people to their kids to keep them from selling off all the stuff (all they can sell is a life estate)
b.	Common modern way to set this up – life estate in trust - set up a trust which holds the legal title; the life estate holders get the benefits from it (the rents and profits) (they can also live in it) (sometimes the life estate person is also the trustee) People with life estate in trust have an equitable title (Point – the holders can’t convey their life estate) 
c.	OR legal life estate (“To A for life”)
	(1) assumed to be transferrable unless otherwise stated
	(2) If person sells a life estate, it’s still measured by their life - 
	   Person who buys it has a “life estate pur autre vie” (ex. A 
   has a life estate and sells it to B; B and his heirs keep    
   it until A dies)
			d. White v. Brown 
	(1) under common law – if the grant language was 
	   ambiguous, it’s construed to create a life estate
	(2) modern law – whenever the grant is ambiguous – 
	   construed FSA (unless there is clear language to the 
	   contrary)
	(3) ex. “I wish her to have my home to live in” – generally 
	   considered a FSA
	(4) Interpret language of the will in light of the 
		     circumstances to determine the language of the testator.
	(5) A construction of the will that will result in partial 
	   intestacy (so that you don’t know what to do with part of 
	   the estate) won’t be adopted unless that construction is 
	   clearly intended.
	(6)  Dissent here says – interpreting a will in this way (to 
	    create a FSA just to avoid partial intestacy) can violate the 
	    testator’s obvious intent (to create something less than a 
	    FSA)

		5. Restraints on alienation
			a. absolute restraint 
b.  complete bar on transferring the property	
c.  can’t have on a FSA
	(1)  We voted unanimously to write annoying comments in 
	    the outline while you were gone
		 4 out of 5 men prefer hanging brains to eating brain 
		  pie
d.  with a life estate (restraint on trying to sell the property)
(1)	disabling restraint – prohibits sale without saying what 
      happens if you violate
(2)	forfeiture restraint – says what happens (or who gets the property) if the restraint is violated
(3)	Usually, forfeiture restraints are considered OK (b/c they’re definite) but not disabling – Makes no sense because with a disabling restraint, you DO know what will happen – a reversion to the grantor)
e. partial restraint – only restricts sale to some degree
	Modern view:
	(1)  allowed if they are reasonable 
	(2) serve a socially useful purpose
	(3) don’t effect the value of the property
(4)	ex’s – can only sell to a member of some club; can only 
	sell with someone else’s consent; can only sell to 
	someone who is approved by the condo assoc. 
	 Older view, even partial restraints are void except for 
	     homeowner’s assoc.’s or co-op boards
D.	Rights of future interest holders
1.	Baker v. Weedon
a.	old bag needed $ wanted to immediately sell the land in which she had a life estate, remaindermen didn’t want her to sell because the property was about to appreciate in value; (they say it’s affirmative waste for her to sell now rather than later) 
b.	ct. sells only part of the land to support the tenant for the rest of her life
c.	But if the property is going to increase in value later and the lady needs $ now, why not just make the remainder people buy her out? 
d.	doctrine of waste –
(1)	legal waste – party who has the property now (current possessory interest) acts in a way that the remaindermen say unfairly affects the value of the remainder
2 types:
	  affirmative waste – (voluntary waste)
-	life tenant is taking actions that decrease the value (in visible character or economic value)
					Special category of affirmative waste:
					ameliorative waste – increases the economic value 
					    but changes its character (more contraversial)
-	modern tendency is against this. Have to prove:
	 the grantor intended to pass the land 
	     to the remainder person unchanged
	 that the property can be reasonably 
	     used in the unchanged condition
	 also depends on how much the 
	     difference improved the land’s value
-	Melms v. Pabst Brewing - house on 
      valuable property; balance between   
      affirmative waste of the property’s  
      character (by tearing down the house) and 
      ameliorative waste (by using the land for 
      industry); ct. allows life tenant to tear down 
      the house and sell the property (probably 
      interest goes to tenant and principal to 
     remainder people)
					 permissive waste – negligence; letting the property 
					   fall into ruin
  
(2)	economic waste – party with the property now acts in a way that under-utilizes the property compared to its maximal use 
(3)	waste claims work against each other. Something can be affirmative legal waste (character is being destroyed by valuable development) (ameliorative waste) – defense is economic waste (“It would be waste not to develop the land”) 
(4)	value of the land measured in 2 ways
	  traditionally – in the character of the land – that it is 
	    intact in the same basic way it was left by the 
	    grantor
	  now probably more in terms of – not the land’s 
	    character but its economic value (different view 
	    indicated different results)
E.	Defeasible estates
(estates with a defined scope that will terminate early if some contingency comes to pass)
1.	fee simple determinable – automatically ends when some specified 
		event happens = possibility of reverter (goes to some person or to 
		the grantor if not specified) (interest can be conveyed or willed – 
		see below)
a.	“To A so long as A uses the land for church purposes”
b.	“…while used for church purposes”
c.	“…until it is no longer used for..”
Note – difference between reversion and possibility of reverter – reversion only occurs when the grant is of an estate less than the grantor’s interest; With p of r – the grant is the same size as what the grantor has
d.	Possibility of reverter – 
(1)	Don plants his pen in his skull.
(2)	Always transferable by will or intestacy
(3)	Under common law – not transferable inter vivos (Mahrenholtz) 
(4)	Under modern law – in most places, transferable
(5)	Either way – you can give up the possibility of reverter (i.e. give up the condition on the grant) to the party who holds the other rights (by “transferring” the rights to the fee simple holder) (Mahrenholtz)
(6)	Some places do not recognize FSD at all so it’s all interpreted as right of entry
(7)	After condition is violated, rights transfer automatically. If the person doesn’t go and take the land, they lose it through adverse possession.
2.	fee simple on a condition subsequent – has a condition that will cause the fee to end IF the person (who has a right to it after the condition is violated) asserts her rights = right of entry
a.	“To A but if A stops using it for church purposes…
b.	“To A provided however that..
…and then a condition
* difference between 1&2  FS on a CS starts out sounding like a FSA but 
   then adds a condition
c.	Right of entry –
	(1)  Always transferable by will or intestacy (Mahrenholtz)
(1)	Under common law – not transferable inter vivos (Mahrenholtz)
(2)	Under modern law – in most places, transferable inter vivos
(3)	Like possibility of reverter, person can give it up (“transfer” it) to the person who holds the fee simple
(Mahrenholtz)
(4)	When the condition is violated – some states say – grantor (or the specified person) has a right of entry now – but they don’t own the land. So they can’t be adversely possessed against (therefore, the right of entry is good indefinately)
(5)	Some states have a statute of limitations on the right of entry – which is the same length as the time for adverse possession (so essentially, it works the same way as a possibility of reverter)
(6)	Tacking of violations is allowed (adding past violation of the past owner of a FC on a CS to the violation of the current owner) when deciding the length of a person’s right of entry. (so that if A violates the condition for 5 years and sells it to B, who violates for 6 more years – and the limit on right of entry is 10 yrs – the # of years of violation are added together – so that the right of entry has expired) 
3.	fee simple with a covenant not to do something – if the condition is violated, the person who holds the rights can seek damages under contract breach (the grantee does not forfeit the land)
a.	promisory language (sounds like grantee promised not to do something) implies a covenant
b.	Because a covenant is a promise by the grantee, its violation is a breach of contract.
c.	“To A. A promises that A will not serve alcohol on the premises.”
d.	Sounds like a covenant – “To A. It is our understanding that it will only be used for church purposes”
e.	Continue to successors
4.	Pointless language – nonrestrictive, hopeful language
a.	“I leave Blackacre to A with the understanding that it will only be used for church purposes” (=FSA)
b.	“I leave Blackacre with the intention that it be used as a porn theater” (=FSA)
5.	Modern tendency – to construe ambiguous future interests as fee simple on a condition subsequent – because the property doesn’t automatically transfer when the condition is violated – makes the grantor go get it if they want it back  (point - they might not even want it back)

6.	Mountain Brow Lodge
a.	Facts:  Guy wills property to the lodge with the restriction that the land only be used for lodge purposes and that it cannot be sold (if it is, it’ll revert)
b.	Ct says the second part is an absolute restraint on alienation. Absolute restraints on alienation cannot exist on a fee simple is not allowed. So, it strikes the offending language. They say the rest of it is a valid defeasible estate
c.	Point – some ct’s strike just the language that creates an absolute restraint on alienation (and leave the rest – as an FSD etc). Some ct’s in these cases strike all of the conditions and create a FSA.
d.	Traditional exception – for charitable organizations – you can restrict property for use by a charitable group.
7.	Forfeiture of property upon marriage
a.	depends on its purpose whether it’s valid or not –
(1)	if the purpose of the condition is to prevent/hinder marriage, ct’s tend to invalidate it 
	 you lose the land if you marry a Puerto Rican like 
	    that nasty Rick guy
	 To A for life , BUT IF A marries, then to B. 
(2)	if it’s supposed to support someone until marriage, it’s generally OK 
	 To A for life SO LONG AS A remains unmarried, 
	then to B
(3)	Ct looks to language to determine the intention

	Note – there’s also fee simple subject to an executory limitation (see below)

F.	Future interests
1.	Remainders
Note – remainders are only in 3rd parties – not in the grantor
a.	contingent remainder (may not vest at all)
(1)	given to an unascertained person (or a group where there’s no members yet)
(2)	AND/OR made contingent upon some event occurring before B gets the remainder (other than the termination of the preceding estate) (i.e. condition precedent)
b.	vested remainder – 
(1)	given to an ascertained person (or a group where at least one member exists)
(2)	AND not subject to a condition precedent (just that all the prior estates expire)
(3)	Choices
	 indefeasibly vested remainder
	 vested remainder subject to divestment
	 vested remainder subject to open
c.	Indefeasibly vested remainder when:
(1)	Given to an ascertained person
(2)	Not subject to a condition precedent – (which is where B will get the remainder only if something happens first)
(3)	Not subject to a condition subsequent (which is where B will get the remainder for sure but it may be taken away)
(4)	Not divisible (so no one else can show up/be born who would get part of the remainder) 
(5)	Ex. To A for life, then to B.
d.	vested remainder subject to divestment (a.k.a. subject to 
	defeasance or subject to a condition subsequent)
(1)	given to an ascertained person
(2)	has a condition that could cause that person to lose the remainder (condition subsequent) (they get it but could lose it)
(3)	ex. Life estate in A, remainder to B; but if B uses the place as a dance hall, then to C.
e.	vested remainder subject to open
(1)	given to at least one ascertained person
(2)	others may be born/appear who may also get part of the remainder – so that the remainder is subject to division at the time of the grant 
(3)	When the prior estate expires and the remainder vests – the class becomes closed (so later kids don’t get a part of it)
(4)	ex. To A for life, then to B’s children.  (when B has at least 1 child now)
•	If B had no kids yet, it would be a contingent remainder.

		Note – a vested remainder may be subject to divestment and subject to 
				open

f.	Contingent remainder vs. vested remainder subject to divestment: all about punctuation
(1)	C.R. – has the condition in the clause that describes the grant – 
	 ex. To A for life, then to B if B does not use the 
		property for a dance hall.
	 because this sounds like a condition precedent – 
		sounds like B does not get the remainder for 
		sure

(2)	V.R. subject to D. – has the condition in a different clause from the one that describes the grant
	 ex. To A for life, then to B; but if B uses the 
		property for a dance hall, to C.
	 sounds like a condition subsequent – that B gets 
		the remainder for sure but it may be taken 
		away
2.	Executory Interests
a.	Remainder vs. executory interest
(1)	A remainder follows the natural termination of the preceding estate (only happens after an estate less than a fee simple)
(2)	An executory interest – cuts short the preceding estate before its terms end (can follow a fee simple or a remainder)
b.	executory interests – when property goes to someone when a condition fails/happens and that person is not the original grantor; can be in fee simple or a life estate
(1)	fee simple subject to an executory limitation
	 like either a FSD or a FS on a CS but the future 
		interest is held by a 3rd party
	 the 3rd party holds an executory interest
(2)	when there’s a vested remainder subject to divestment (or a contingent remainder) -  
					the 3rd party who takes when the condition 
					fails/happens
c.	springing executory interest – possession divests the grantor
	ex. To A if A marries. 
		 O creates a fee simple subject to an executory 
		limitation. A has a springing executory interest.
 		 (Point – that A is the one who has the future 
		interest (takes when the condition fails/happens, 
		rather than O)
	ex. To A for life then to B when B reaches 21. (if A dies when 
		B is 19, there’s a reversion in O until B is 19, then 
		spring to B)
 
d. shifting executory interest – possession shifts possession from 
	the grantee to another
	ex. To A  but if B returns from Dallas, to B.
		 O creates a fee simple subject to an executory 
		limitation in A and a shifting executory interest in B.
	ex. To A but if A remarries then to B.
		 O creates a fee simple subject to an executory 
		limitation in A and a shifting executory interest in B.
d.	ex. using vested remainder subject to divestment or contingent remainder
(1)	To A for life then to B; but if B gets a sex change, then to C.
	 A gets a life estate; B gets a vested remainder 
	subject to divestment; C gets a shifting executory 
	interest;
(2)	To A for life then to B if B is married, then to C
	 A gets a life estate; B gets a contingent remainder ; 
	C gets a shifting executory interest.

G.	Rule Against Perpetuities
1.	Basic definition: No interest is good unless it must vest (if it vests at all) not later than 21 years after some life in being at the creation of the interest.
2.	Rule does not apply to reversion, possibility of reverter or right of entry (future interests held by the grantor) (even if the grantor conveys the future interest to someone else); Also not vested remainders other than subject to open.
3.	So – it applies to vested remainders subject to open, contingent remainders and executory interests;
4.	Possession doesn’t have to occur within 21 years – the interest just has to vest or fail. (so it’s certain to become possessory or not) 
5.	Note – RAP does not cover vested remainders subject to divestment.
6.	Everyone mentioned and is alive at the time of the grant is a measuring life. And also anyone not expressly mentioned (who is alive at the time of the grant) but whose existence is necessary to determine whether the grant vests or fails. – look for the possibility that someone else will be born. 
7.	Think – if person is not specifically named – maybe they’re not alive and aren’t a measuring life.
8.	RAP in use – void the offending clause
9.	ANY possible scenario where the interest 
10.	Ex’s
a.	To A for life, then to A’s children for life, then to B;
(1)	Good because it’s a vested remainder: indivisible, identified person, indefeasible, no condition precedent.
b.	To A for life, then to A’s children for life, then to A’s grandchildren
(1)	Given that A has no children now – A is the only measuring life. A could have a child following the grant; then die; then that child might not have a child until 21 years + after A’s death. = FAILS RAP
(2)	Also, given that A has one child now – That child, B, and A are measuring lives. A could have another child and then die. Then  B could die. The second child could have a child 21 years + after A and B’s deaths = FAILS RAP
c.	To B for life, remainder to those of B’s siblings who reach 21
(1)	B and B’s parents are measuring lives so when B and B’s 
	parents die – whatever siblings are alive will reach 21 
	within 21 years.
d.	To A for life, then to his wife W for life, then to A’s surviving children;
(1)	A and W are measuring lives. When they die, their children will either be surviving or not.
e.	To A for life, then to his widow for life, then to A’s surviving descendents
(1)	Maybe the widow isn’t alive yet – fails.
f.	To A for life, then to B; but if at her death B is not survived by children, then to C;
(1)	It’s good – A and B are measuring lives. When they die, B will either have kids or not and C will either collect then or not.
11.	Modern application of the RAP
a.	2 modern variants
(1)	Wait and see doctrine
•	Instead of looking at the grant at the time of creation to see if it will vest or fail within 21 years, wait 21 years after all the measuring lives are dead and see if it has vested; If so – it’s fine
(2)	Uniform statutory RAP
•	1st look to see if it meets the common law test
•	2nd look to see if it will vest or fail within 90 years
•	Then wait for 90 years after all the measuring lives to see if it vests or fails
b.	Even if it will fail – ct has broad powers to reform a grant to make it survive – as close as possible to the grantor’s intent

V. Common Law concurrent interests
A.	Tenancy in common and joint tenancy
1.	Similarities
a.	unity of possession – each has an undivided interest in the property and a right to use all of it (like tenancy in the entireties)
b.	transferrable inter vivos w/o the consent of the other cotenant or without their knowledge (unlike tenancy in the entireties)
2.	Differences
a.	joint tenants have a right of survivorship – one dies – the other gets the dead tenant’s stuff; so you can’t leave your interest by will
b.	tenancy in common – tenancy in common goes to heirs or legatees – so no right of survivorship
(1)  ambiguous language construed as a tenancy in common – don’t want to imply a right of survivorship

B.	Joint tenancy
1.	Must meet the 4 Unities
a.	Unity of Time- The interest of each joint tenant must be acquired or vest at the same time.
b.	Unity of Title – All joint tenants must acquire title by the same deed or will or by a joint adverse possession – A JT can never arise by intestacy succession or other act of law
c.	Unity of Interest – All must have equal, undivided shares.
	Same fractional shares/ same duration estate (life ten, FSA)
d.	Unity of possession – as above
e.	Traditionally – if any are violated – it’s a tenancy in common
f.	Modern times – interests can be unequal fractional shares
(1)	ex. that’s how govt. taxes joint tenants – looks at how much each contributes to figure out what % tax each has to pay
g.	Unity of title requirement – requirement gone or qualified in some places – but still exists in most – so you can’t create a joint tenancy by giving half your stuff away – you have to transfer it to a strawperson and have it transferred back to you and the other person
h.	Unity of time – requirement is avoided the same way
i.	Because of the ability to avoid the requirement – some places have eliminated them all together (time and title elements)
2.	How to sever
a.	You can convey a ½ interest to another person inter vivos (not by will because of the right of survivorship)  joint tenancy becomes a tenancy in common (because the 2nd conveyance is at a dift time and by a dift instrument)
b.	Joint tenancy is really easy to break
(1)	what it’s good for – cheap way for middle class to pass things to their spouse automatically – to avoid wills/probate court
c.	If you sever, you don’t change the relationship between the original cotenants – 
(1)	JT between a,b & c; a conveys to d; now – JT between b & c; T in C between (b&c) and d;
(2)	B dies; c collects by survivorship  TinC between c and d;
d.	Potential for fraud – because you can get dissolve the JT without a lawyer or a 3rd party (b/c some places don’t require a strawman)
(1)	Riddle v. Harman – says you can break a JT by conveying your interest in the joint tenancy in yourself; no strawperson required
(2)	Ex. of fraud - You can dissolve the JT – hide the conveyance and then if you survive, collect under the right of survivorship; if not – you die and they find the document so that the other party can’t collect 
3.	Harms v. Sprague
a.	a mortgage does not sever a joint tenancy
b.	If one of the tenants dies – her mortgage obligation does not survive (and carry to the other tenant/s)
c.	A mortgage is more like a lien than a conveyance to the bank (of some rights to the property after the person’s death) (inconsistent with a JT b/c of the right of survivorship giving all the interests to the other tenants)
d.	B/c of this – banks won’t lend $ on 1 part of a JT
e.	So – banks have to deal with all the parties (so the bank has to deal with the wife)
4.	Partition 
a.	Unity of possession is a fiction – says that both tenants have a right to do whatever they want with the land – implies that the parties will agree on what to do with it
b.	Cotenants can’t agree on how to use the property – partition physically divides the property – giving each sole title to one part of the property  (thereby destroying the JT)
c.	Delfino v. Vealencis
(1)	physical division of the JT is preferred in situations of conflict between the tenants – over partition by sale
(2)	only partition by sale under 2 conditions
•	partition is impracticable b/c of the land’s 
						physical features
•	interests of the owners would be better served 
	by partition by forced sale 
						- some places – sell where it is the most 
							economically favorable choice
(3)	here, P says division would hurt the land’s value as residential property;
 b/c there has to be a buffer zone around D’s dump
concerned about zoning
 has to build additional roads
 so D is externalizing her costs 
(4)	D says the land is easily divisible and she should be allowed to continue her dump;
(5)	These issues can be argued either way – but who can judge what the highest and best use of the land is? A tenant should be allowed to use the land for what they want to do – even if it’s not the “highest and best use” by someone else’s standards.
(6)	Cts don’t want to force a sale unless it’s in everyone’s economic interest;
(7)	If it’s worth it enough to P, he can just pay her to leave.

	C.Accounting – apportioning rights and liabilities
a.	Spiller v. Mackereth
	(1)  each cotenant has a right to possess the whole
		 unless 1 cotenant physically bars others (ouster) ( 
			when cotenant is occupying all of the property 
			and ignores an order to vacate the other 
			cotenant’s half)
		 “Full Nelson” and “Rings of Saturn” count as 
			ouster.
(2)arguments to show ouster
					 adverse possession – tenant out of possession has 
						to show evidence that the other tenant is 
						behaving in a way that is inconsistent with 
						being a cotenant and not a  sole owner
-	hard to show b/c the “adverse possessor” has a right to use the whole property
-	So you’d have to show something like clear-cutting property; renting the whole property to someone and not giving any $ to the cotenant; paying all the taxes on the property; changing the locks and refusing to give the cotenant the keys; tell the cotenant – “you’re never welcome here again”
-	Has to be open and notorious
					 or show that they demanded possession and were 
						denied it
(3)In Spiller – he didn’t do anything open and notorious inconsistent with being a cotenant; when he filed the petition for partition – he acknowledged the cotenancy
(4)So it seems like unless the possessor denies that the cotenant has a right at all, an adverse possession claim fails
b.	Doctrine of constructive ouster
(1)	where copossession is impracticable (unlivable by the other cotenant) 
(2)	ex’s teeny house; 1 cotenant has 100 cats; husband and wife when it’s impossible for them to live together;
(3)	Remedies
•	accounting – payment of ½ the rental value
•	partition – extreme remedy 
c.	What if the land is rented to a 3rd party?
(1)	accounting - cotenants split the rent according to their % ownership
•	either they split the $ received and then settle expenses later
•	Or they just split the profits
•	The amount is how much that is actually collected – not the rental value you might be able to get
(2)	partition – if one cotenant is really unhappy, she can seek partition
(3)	If one cotenant rents out just her interest, as long as the other cotenants can co-exist with the renting party, lessor gets to keep all of the rent
d.	Maintenance expenses
(1)	All occupying cotenants are liable for their share of expenses
(2)	If they’re not all occupying AND expenses are less than the imputed rental value  the possessing tenant has to pay all expenses.
(3)	(If expenses are greater than the imputed rental value, they are shared by all the cotenants)
	 so that possessors can sue the others for a 
	contribution which is in proportion to their % 
	ownership
e.	Improvements to property
(1)	If one cotenants makes improvements without agreement of the other cotenant/s, she has to pay for them
(2)	If the rental value increases, the one who made the improvements can collect all of the increase in rental value.
(3)	In partition, the improving cotenant can demand a greater % of the proceeds (b/c of the increased value to the property due to their improvements)
(4)	Partition is based on the value increase to the property – not on the cost of the improvements
	D. Marital interests
1.	Tenancy by the entireties
a.	limited to married couples
b.	some states assume that an ambiguous grant in married couples creates a tenancy in the entireties
c.	3 aspects
(1)	can be created only between a married couple
(2)	interest cannot be partitioned without the consent of both parties
(3)	cotenancy ends only if done together (death, divorce, voluntary transfer)
(4)	neither may destroy the right of survivorship of the other tenant
d.	The only thing a cotenant can sell is their own right of survivorship (the right to collect if the other spouse died first) (under common law)
2.	Sawada v. Endo
a.	car accident in 1968 caused by husband (Endo)
b.	sued in June and August of 1969 (by Sawadas)
c.	July 1969 – conveyance of tenancy by the entireties by Endo’s to their sons
d.	Complaint served in October 1969
e.	Judgement in 1/71 for Sawadas
f.	Mrs. Endo dies 10 days later
g.	Sawadas make a fraudulent conveyance argument – saying Endo’s just conveyed the property to avoid attachment
h.	Issue – fraudulent if P could have attached the property (when it was under tenancy by the entireties) before the conveyance occurred – Can P put a lien on the property (held in a T by the E) based on one cotenant’s liability
i.	Dift states have dift rules about creditor’s rights in these cases
(1)	Common law - husband (but not wife) can convey the whole property – except if he died first, his wife would still take the whole property by her right of survivorship; Only in Mass.,  can creditors attach the property to cover the husband’s debt (still subject to the wife’s right of survivorship)
(2)	The bank can attach the property of the debtor spouse (husband or wife) and ½ the other’s right of survivorship;  And if the debtor spouse survives – bank takes 100%; if non-debtor survives – the bank takes 50% of the property (survivor’s right of survivorship). 
(3)	Neither spouse can alienate anything separately and the property can’t be attached unless it’s for the debt of both spouses
(4)	Survivorship is alienable but the property itself cannot be touched by creditors during life; (right of survivorship can be attached by creditors)
j.	Here, ct uses rule 3 – so no fraudulent conveyance; P couldn’t have attached husband’s interest at the time; So the land belonged to the sons following conveyance by both parents. P can’t get it.
k.	(If the wife had died and had they not transferred the property – the husband would have gotten a FSA, which P could have attached) 
3.	Using rule 3, couples can insulate their assets against the debt of one spouse; 
4.	Joint tenancy and tenancy in common – not broken by divorce but tenancy in the entieties is.
5.	Community property
a.	9 states
b.	all property acquired during marriage by either spouse is divided evenly unless title to that property is held in some cotenancy by the consent of both parties
	(so that if only one spouse is a cotenant with some other 
	party – with consent of the other spouse – the cotenancy is 
	not community property)
c.	Includes all earnings, all things acquired through earnings; earnings on things bought; 
d.	Each party can control any of the stuff during marriage subject to a fiduciary obligation to the other
e.	Right of creditors to reach community property – if it’s the debt of both – no problem
f.	Debt of one – dift rules
(1)	creditor’s can take 100%
(2)	can take 0%
(3)	can take debtor’s ½ and ½ of the other spouse’s part (i.e. 75%)
			g. no tenancy by the entireties
g.	tenancy in common – one spouse can transfer it without consent if they want to
h.	joint tenancy – one spouse can sever a joint tenancy
i.	separate property – 
(1)	all property held prior to the marriage that is not changed to community property (through actions that show intent to share the stuff) (transmutation)
	 ex. using a bank account as a house down-
	payment
	 generally – who holds the title will show whether 
	the person wants to keep it separate or not

prenuptual agreement  - reverse transmutation – when things are changed to community property and then changed back upon divorce

(2)	assets acquired during the marriage through gift or inheritance
(3)	earnings on separate property
j.	Divorce in a community property state 
(1)	community property – split 50-50 or distributed equitably
(2)	separate property – retained by each
6.	Non-community property states
a.	during marriage – stuff brought in by 1 person is theirs unless it’s comingled purposely
b.	still – there’s a general mutual obligation of support (may mandate equal sharing during marriage)
c.	divorce
(1)	equitable distribution statute – property held by either spouse at the time of the divorce should be divided looking at cerytain factors
	 need
	 duration of marriage
	 economic contribution
	 whether alimony or child support is needed
(2)	a few jurisdictions consider fault
(3)	majority rule – stuff owner by either distributed equitable to both
(4)	other minority rules:
	 Uniform dissolution of Marriage Act
		property = the same property that would be 
		split in a community property state (makes it 
		just like community property)
	 all community property and marriage assets 
	     acquired through gift or will (not just the stuff you 
	     brought in) – is split
7.	Generally – enhanced earning capacity is not divible property
8.	In re Marriage of Graham
a.	equitable distribution state – using Uniform Dissolution of Marriage Act
b.	education is not like $ or property for the purposes of division
(1)	no exchange value
(2)	not transferable
c.	Ct here is talking about the degree itself (the MBA) (Fried says if you looked at the increased earning potential – it looks more like property)
9.	Equitable options when 1 spouse has supported the other
a.	50/50 split of human capital (increased earning potential)
b.	force 1 spouse to make an equivalent investment in the other’s human capital
10.	Elkus v. Elkus
a.	minority view – that increased earning capacity during marriage is marital property and can be divided at divorce;
b.	justification – not that one spouse actually contributed to increasing the earning potential of the other; just that they contributed to the marriage in general
c.	Fried – problem – how do you figure out what future earning potential? Here – with the opera singer – what if she does something that doesn’t maximize her earning potential – like quit singing?
d.	Also – hard to value what should be split because she brought the talent into the relationship – argument – that she could only have developed that potential with the spouse there to take care of things
e.	Potential for her future earnings to be levied against again if she ever remarries
11.	Domestic relationships (same-sex marriage)
a.	Hawaii has given the rights of marriage to same sex couples – with equitable distribution upon dissolution
12.	Other unmarried couples
a.	Any couple can make any K they want which will be upheld
b.	No K?
(1)	remedies:
	 contractual – maybe where patterned behavior 
		created an implicit K
	 restitutionary (some jurisdictions) – treat 
		partnerships like marriages and do equitable 
		distributions (like common law marriage)
13.	Death 
a.	community property states
(1)	surviving spouse retains his/her ½ interest in the property and deceased spouse can leave his/her ½ to whoever they like (as well as his/her separate property)
(2)	can be overturned by K
b.	Non-community property states
(1)	a forced share statute – requires that one spouse leave a minimum amt to the other
	 an attempt to cut a spouse out of the will is 
	considered void (can be overridden by a K)
	 can still leave more if you want
	 no difference between community and separate 
	property (deceased has to leave a given amt.)
	 a lot of places – if there’s no will – everything goes 
	to the spouse
c.	non-married couples
(1)	no background for division – property goes by intestacy succession or by will

VI. Non-possessory Interests (easements, covenants, servitudes)
	A. Generally
1.	Allowed to use land but not possess it
2.	Smaller bundle of rights than ownership
3.	Interests in land vs comtractual obligations between parties – typically interests go to successors
C.	easements
1.	affirmative – right to enter upon another’s land (land is burdened)
2.	negative – like covenants (saying can’t do something on the burdened estate)
D.	Profit – right to take something from another’s land – usually comes with a right to enter
E.	Covenants = all other promises w/ respect to land 
1.	affirmative promise to aid – maintain a fence between 2 lots
2.	affirmative promise to pay - $ given for something
3.	promise not to d something w/o permission
4.	Real covenant is the same as an equitable servitude – but RC is enforced by damages and an ES by injunction
F.	Terms
1.	benefit – right to use anoyher’s land
2.	burden – the corresponding restriction on the land owner
3.	servient estate – land whose use is restricted
4.	appurtenant – benefit of the easement is attached to the land rather than a person and runs with the land when sold
 when language is ambiguous, ct’s favor appurtenant easements
5.	dominant estate – land to which benefit attaches (so if you have the land, you have the benefit)
6.	in gross – benefit is attached to a particular person; (not to person’s land ownership)
G.	Creation of easements
1.	Most are created by a grant or reservation
2.	Statute of Frauds – applies to explicit creations of easements (but easements may also arise by implication)
3.	Also can create – 
a.	by estoppel
b.	by implication
4.	Easements by grant – owner retains all rights but gives up the easement;
5.	Easement by reservation – former owner reserves an easement for themselves and transfers the other rights to someone else;
6.	Common law 
a.	you could reserve an easement for yourself but not for someone else
b.	you could grant an easement to anyone you wanted
7.	Willard v. Church of Christ Scientist
a.	guy tries to convey property and reserve an easement for a 3rd party
b.	Ct says it’s ok
(1)	even though it was restricted by common law – ct says common law is old and dumb
(2)	today, ct’s try to give effect to grantor’s intent
(3)	grantee paid a reduced price b/c they knew about the incumberance when they bought it
c.	Point- you can reserve easements in 3rd parties now
d.	grant language “easement to run with the land” – means appurtenant easement
e.	“easement to run with the land so long as it is used for church purposes” = appurtenant easement subject to a FSD; (or) app. easement in FSD (or) determinable easement
(1)	don’t have to use the easement constantly to keep it; just can’t violate the condition
8.	easement by estoppel –
a.	When it’s clear that access to property is necessary to use some other interest (like a profit) – the ct may imply an easement for so long as the other interest exists
b.	AND/OR When a party has been using the property and invests in reliance on being able to continue to use it (where the owner induced the reliance) – irrevokable easement created
c.	These easements may be for a short period or may be permanent depending on the conditions
d.	 Also – could be created where the grantor intends to create an easement but doesn’t complete enough of the formalities necessary
e.	Holebrook v. Taylor
(1)	P invested in a house in a certain location– based on the fact that D let him use a road to get to his property
(2)	P got permission to use and improve the road and did
(3)	D changed his mind about letting P use the road
(4)	Ct. says easement by estoppel
(5)	Ct. didn’t express the length of the created easement (could set a time-limit)
9.	easement by implication
a.	seems like person intended to allow it
b.	by prior use 
(1)	dominant and servient estates were held in common ownership
(2)	owner used part of the (now) servient estate to benefit the (now) dominant estate (quasi-easement)
(3)	when owner sells part of the land, the ct will imply an easement
(4)	for the same use that the old owner used it for
(5)	prior use has to be apparent and continuous
c.	by necessity 
(1)	easement must be necessary for the use of the dominant estate
(2)	necessity arose when the (now) servient parcel was separated from the (now) dominant parcel
(3)	only last as long as the necessity
(4)	If a parcel is cut and land-locks part of it – and the land-locked part is granted, an easement by necessity is created over the grantor’s land (not over any other land around it – even though there’s just as much necessity)
	 the easement is implied here, rather than 
	forcing the person to bargain with someone 
	around them – because those people would 
	have oligopoly power (and would screw the 
	person over)
(5)	In most states, you don’t have to pay when the ct. finds an easement by necessity
(6)	In some states, in land-locked land situations, you can force an easement but you have to pay for it
(7)	If grantor is selling a land-locked parcel, they are likely taking an easement over their land into account in fixing the price (unless the grantee is granted the valuable “helicopter rights”)

d.	Van Sandt v. Royster
(1)	woman owns 3 adjoining lots. Builds sewer pipe across 1 and 2 to the 3 (quasi-easement)
(2)	Sells 1 and 2 
(3)	When necessary uses can be discovered through reasonable investigation – then uses are considered apparent
(4)	Parties, then, are assumed to know about the uses and realize that they will be continued in the future
(5)	An easement is implied by these circumstances 
(6)	To create an easement by necessity for the grantor’s use – stricter showing of necessity required because the grantor could have reserved the easement in the grant
10.	Prescriptive easement
a.	adverse possession in the context of an easement
b.	owner can defeat it by actively interrupting the use (more than just a sign or something); or by granting the user a license
(1)	have to successfully physically bar the people (otherwise owner hasn’t met the burden of preventing use)
c.	uses elements adverse possession
(1)	open & notorious use
(2)	adverse and under claim of right
(3)	continuous and uninterrupted
d.	a private individual or the public can obtain a prescriptive easement (Ex. Rockefeller Center)
e.	person trying to get a prescriptive easement has to use it exclusively (can’t be obtained as a group – like over a common driveway)
f.	can be created for any reason – not just necessity
g.	exception - sometimes, ct will enforce an prescriptive easement even in cases with no adverse possession 
(1)	This is the tradition with beaches
(2)	Up to the high-water mark is public beach
(3)	Above that – private property
(4)	Some cts say that there must be an easement across the private property to get to the public beach – “public trust doctrine”
(5)	 Matthews v. Bayhead Improvement – 
	 ct. finds that public has the right to cross the 
	private dry-sand beach to get to the public part 
	of the beach (under the public trust doctrine)
h.	Comedy laugh-riot of the commons
(1)	when the optimal use of the land is as a commons (for a celebration or something - the more the merrier!)
	 can turn into a tragedy of the commons if it 
	gets too crowded, it stops being the best use of 
	the land
(2)	The private owner has no incentive to let the public use her land
(3)	Then the land is under-utilized
(4)	(Even if people could use it, it probably wouldn’t happen because large public events are  hard to organize)
(5)	When land is really good for public use/special to people in the community – potential for holdout – where the owner of it demands a higher price for it (or for its use)
	 this is similar to a monopoly on natural 
	resources (water) – where the best use is use 
	by a large # - and the monopolist could hold-
	out for high payment; But with these resources, 
	the monopoly is mitigated by regulation by the 
	govt.;
H.	Passing of easement burden to successors in interest
1.	requirements
a.	parties who created the easement clearly intended for it to run with the land
(1)	If intent is ambiguous, the ct. will look at surrounding language 
(2)	If grant is prescriptive, it is implied by law that it will run with the land
b.	successors in interest have notice
(1)	actual notice 
(2)	constructive notice –recorded on the deed (responsibility of the successor to discover)
(3)	inquiry notice – if there’s something visible to indicate that there might be an easement – successor is found to have notice (they should ask about it)
2.	If the burden runs with the land, all successors have it
3.	If it doesn’t run with the land, the servient estate reverts to FSA (the easement ends when the land is sold)
	Remember – if the easement is in gross, the burden runs with the servient 
	parcel and the benefit runs with the person; If it’s appurtenant, the benefit 
	runs with the dominant estate and the burden runs with the servient estate 

I.	Passing of benefit to successors
1.	easement in gross – in most places is transferable and assignable (if the parties wanted it to be and stated it in the grant)
a.	typically assignable or transferable when it’s commercial
b.	easements in gross are usually commercial
2.	appurtenant – the benefit always runs with the land
J.	Scope of an easement
1.	Brown v. Voss
a.	You can use an easement any way you want as long as it doesn’t over-burden the easement 
b.	(ex. dividing your lot so that now your easement is the only road into a subdivision)
c.	allows for more development of the estate but it has to be gradual and reasonable (dominant estate owner may have to pave the road)
d.	You have no right to widen the easement to accommodate for increased need due to development
2.	Easements in gross 
a.	In many places, you are limited in your ability to divide your right
(1)	Policy - It would be unfair to allow the easement holder to profit from dividing the easement, while diluting the servient estate owner’s interest 
b.	You can divide your right if its mentioned in the document
c.	If it’s not mentioned in the document:
(1)	If it’s a non-exclusive easement (meaning that the owner is keeping the right to use it themselves) – easement is not divisible (b/c you can’t dilute the grantor’s rights
(2)	If it’s an exclusive easement (so that only the holder will be using it – it’s divisible (b/c only the holder’s rights are diluted by division)
3.	Preseault v. US
a.	Govt had a valid easement across guy’s property, which it used to build RR tracks; 
b.	P buys property; (RR stopped running);
c.	Govt. wants to use the strip again later as a nature trail;
d.	P objects
e.	? whether the RR had an easement or a FSA to the strip of land
(1)	If they had a FSA, they couldn’t have given up their rights by abandonment
(2)	If it was an easement, they could have
f.	Ct determines that it was an easement so:
g.	Was the easement abandoned?
(1)	mere disuse or oral release - not abandonment
(2)	abandonment:
•	the easement is blocked for a long time without complaint by the holder OR 
•	 the holder starts using an alternate route (uses a dift easement) - I.E.
•	holder has to act to show unequivocal intent to abandon – oral release or nonuse coupled with a failure to maintain
(3)	Ct here says disuse + removal of most of the tracks = abandonment
(4)	Fried says – it has to be stronger than that – have 
	to show unequivocal intent to abandon (and 
	the state here left some of the RR stuff and 
	continued to take fees for crossing the 
	easement)
h.	Did the scope of the original easement include use as a nature trail?
(1)	Did the original grantor contemplate this use?
(2)	Ct. says no – there were no nature trails then and no one thought the RR would ever lose its value – so the easement was limited to RR purposes
(3)	Ct uses equitable analysis to decide if the purpose should be expanded
•	burden on the owner vs. justification for allowing the expanded use
(4)	Ct. says no
i.	Basically, govt. has an easement and abandoned it, so it reverted to the servient estate-holder (P); When govt. started using the land for a nature trail – it constitutes a taking of a new easement;
K.	Terminating an easement
	1.   By abandonment (see 3g above)
3.	By consent
a.	in a writing (subject to S of F)
b.	with agreement of all parties
c.	w/o writing if circumstances allow waiving the S of F
(1)	estoppel – where the servient estate - holder relies on the other party saying they’re giving it up
4.	By merger 
a.	dominant and servient estate come into the same hands
b.	not automatically revived when the parcels are split again
5.	By adverse possession/ prescription
a.	adverse possession – when the servient estate-holder takes the easement back
b.	prescription – when a 3rd party takes the easement away from the easement-holder
c.	= barring the true easement holder for a certain period
		6.  By statute
a.	statute says the easement lapses after a certain time unless the parties act  to renew them
6.	By misuse
a.	the easement owner uses it for purposes not covered by the original grant
b.	usually the ct will enjoin them from misusing instead of extinguishing the easement
c.	(in extreme cases – the ct will extinguish it)
7.	When it’s useless
a.	when it can’t be used for its intended purposes anymore 
b.	ex. easement to access a dry lake
L.	Negative easements
1.	Defn. – prohibits the burdened estate holder from doing something on their own land
2.	Hard for the buyer to discover if it’s not in the title (you can’t see someone Not blocking your light)
3.	Modern trend to expand the # of negative easements from the traditional 4
a.	traditional 4
(1)	interfering with the support of the neighbor’s land (shared walls etc)
(2)	blocking access to light
(3)	blocking access to air
(4)	blocking access to an artificial stream
b.	new modern neg. easements (sometimes referred to as Neg. covenants or Neg. ES’s)
(1)	conservation – can’t develop some or all of the land 
(2)	historic preservation – can’t alter in certain respects
(3)	solar – can’t block panels
(4)	for view
M.	Real covenants/equitable servitudes
1.	Real covenants 
a.	promises related to land (real = land)
b.	enforced by damages
2.	Equitable servitude
a.	promise related to land and enforced by injunction
		(some cts use 1&2 interchangeably and some have abolished the 
			distinction)
3.	Some places, 1&2 are created in dift ways
4.	Easier to have an ES run with the land than a real covenant
5.	Tulk v. Moxhay
a.	English case that originated ES’s (1st time a promise is protected when covenant requirements are not met – promise is implied and equitable remedy is used  (injunction) = ES)
b.	real covenant has to be in writing; In many states, an ES may be implied when the writing requirement is not met
N.	covenants/ES’s vs. easements
1.	easements give an interest in land
C’s/ES’s are promises with respect to land
2.	The real difference with affirmative ones
a.	easements – it’s the right to go on another’s land (in a way that would traditionally be prohibited by trespass)
b.	covenant – doesn’t allow a physical invasion by the holder – instead gives the holder the benefit of the the other person’s obligation to do something for them.
3.	Similarity
a.	negative covenants – seems just like a negative easement – both make it so that the burdened person can’t do something on their own land
(1)	So the difference between negative ones is – if it’s one of the traditional 4 negative easements, that’s what it’s called; If not, may be called a Neg. Covenant or Neg. ES – depending on the remedy)
O.	Real covenants
1. When covenants pass to successors:
a.	burdens:
(1)	has to be in writing – S of F (with its usual exceptions)
(2)	intent to have it run with the land (if surrounding circumstances suggest the intent – other party has to argue that they didn’t intend it to run)
(3)	notice to successors
•	actual, record (constructive), inquiry
(4)	privity (Note – applies only to covenants, not ES’s)
•	don’t know how impt the requirement is today
•	even if you fail the privity requirement for covenants, you can still get an equitable remedy (ct can construe it as an ES)
•	In some places, you can call your covenant an ES to get by privity – and then the ct may still give you $ along with the injunction (or whatever)
b.	benefit
(1)	writing
(2)	intent
(3)	no notice requirement b/c it doesn’t burden the person not to know about the covenant
(4)	most places don’t require privity

	2. Privity requirement
a.	horizontal – required relationship between original parties to the covenant; both have the same interest in the estate that is benefitted or burden
(1)	tenurial privity – landlord and tenant (and all successors have to be landlord and tenant)
	ex. tenant covenants to keep the property in 
		good repair
(2)	substituted (mutual) privity – covenant coupled with an easement in favor of one of the parcels and burdening the owner of the other
-	it’s ok to burden successors with a covenant when they’re already burdened with an easement
-	easement has to have something to do with the covenant
(3)	instantaneous privity – 2 parties agree to the covenant – and also they transfer some other interest in the land that is benefited or burdened with the covenant 
-	it’s a grantor/grantee relationship – some interest in land conveyed along with the covenant
-	can be reciprocal 
•	Horizontal privity is required for burdens to run but not benefits
b.	vertical – required relationship between each of the original covenantors wit their successors
(1)	successor got an identical estate to the one the original covenantor had
(2)	in a voluntary transfer
•	no clear how much this rule still matters
•	Some cts insist on it for the burden to run (not required for the benefit)
•	Some cts – if you get a lesser estate, but still have vertical privity – the burden to the successor may be pro-rated if it seems more fair
c.	Neponsit –Ct’s don’t generally require vertical privity for the benefit to run; Ct. here says there is a VP requirement but gets around it when it’s not met; 
	 look at the wording of the deed to see if the intent 
		of the parties to make the benefit run (also the 
		deed gives notice)
d.	Sanborn v. McLean
(1)	deed doesn’t contain the restriction but a lot of  the homes around it do (that there only be residential buildings)
(2)	Usually – requirement that a covenant be in writing; 
•	doesn’t necessarily need to be signed by both
(if the grantor signs it (and the grantee is the burdened one) – if the grantee accepts the deed, they are deemed to have consented)
•	Exception – when a residential subdivision is created – where they were all planned to have reciprocal covenants – ct will imply the burden on every lot, even if certain ones don’t have the burden in their deeds
(3)	Here, all the parcels are from a common owner
(4)	With a common plan for the development (platt – development plan) from the start
(5)	That is known (filed with the city)
(6)	Many of the first lots had the burden written into the deed
(7)	The next deed didn’t have it
(8)	Ct implies the covenant on that deed as well
(9)	D has inquiry notice that the covenant existed (notice requirement met) 
(10)	Rule for implying a covenant in a common plan situation
•	all the parcels from a common owner
•	common scheme from the start (shown by platting, advertising etc.)
•	plan must be in place before the plot in question is sold by the original owner
•	burdened parcel in Q must benefit from the reciprocal burdens
•	doesn’t require that all the lots be burdened in the same way – just that it conform to the originally planned scheme
•	in many places, the developer can retain the right to change the scheme
-	has to be done in a reasonable manner
-	has to protect the interests of the development
•	buyer has to inquire into the deeds of his neighbors when he sees that the other parcels seemed to burdened – so inquiry notice not constructive notice (it’s not in his deed); also he could get notice by asking the city - they have the plan of the development
(11)	Policy – that it wouldn’t be fair to the burdened 
	owners for later buyers not to have to conform 
	to the plan
					
4.	Touch and Concern requirement for covenants or ES’s 
* See Handout 5&6
a.	agreement has to have something to do with the status of the parties as occupants of particular parcels of land
b.	For BURDEN to run with the land
(1)	promise must T&C both the benefited and burdened parcels for the burden to run
(2)	won’t run when the benefit is held in gross
(3)	required for the burden of a covenant or an ES to run with the land
c.	For BENEFIT to run
1.	w/ equitable servitude – no T&C needed for the benefit to run
2.	w/ covenant – must T&C only the benefited parcel
				c. To T&C the burdened parcel = 
1.	the agreement must change the physical use of the burdened parcel itself
2.	Modern tendency – to include restrictions that affect the economic value as well
				d. To T&C the benefited parcel = 
1.	covenant must be physically enjoyed by the benefited parcel
2.	expanded to include anything that economically benefits the benefited parcel
e.	examples
f.	Rationale/policy - T&C requirement
1.	shouldn’t burden subsequent owners unless they have an interest in the covenant/ES
2.	Problem – when the benefit is held in gross and the individual who holds it has a legitimate interest in having the burden run with the land – Too bad. Covenant is out because it doesn’t T&C any benefited parcel. Not a good result. 	
			3.Enforcing covenants
a.	Shelley v. Kramer
1.	14th A says that the state may not engage in discriminatory practices (do anything that violates equal protection)
2.	(at that time, 14th A was only enforced against state action)
3.	So homeowners made racially-restrictive covenants that basically created private zoning
4.	SC says that judicial enforcement of the covenants is equivalent to state action violating equal protection
5.	So private parties can make any covenant they want but once it’s challenged, it’s gone
6.	Later, people try to do the same thing using defeasible fees – saying that they act automatically; Ct says no – none of this stuff is automatic – it all must be enforced by the state
			4.Ways to end ES’s and Covenants
a.	written release – by all named beneficiaries (and any intended 3rd party beneficiaries)
b.	time limited – ends by its own terms
c.	by merger – dominant and servient parcels come into the same hands
d.	acquiescence – benefited party tolerates infringement for enough time that the ct. decides you effectively acquiesced to the violation (equitable doctrine)
(1)	also – if P violated it in the past, that was 
						acquiescence
e.	abandonment – the value of a covenant is in uniform enforcement; without that, it’s considered abandoned – like when a party has tolerated violations in all surrounding parcels but tries to enforce against one – no dice (it’s like they reduced the overall value of the covenant to the point that it’s worthless) (equitable doctrine)
f.	by statute – under marketable title acts – where holder is required to reassert the covenant periodically
g.	sale of servient estate with no notice – no notice of the burden given to the buyer (record, inquiry, constructive)
h.	changed conditions – covenant becomes useless (dried-up lake) – more debatable
i.	private release – typically not very effective b/c of the transaction costs of negotiating the agreement
j.	Western Land Co. v. Truscolaski
(1)	covenant on a 40 acre lot - restricted to residential use – lot was surrounded by wilderness; developer kept a big chunk of it
(2)	developer wants the covenant lifted so he can use his chunk for commercial purposes - saying changed conditions – b/c the parcel is now surrounded by commercial development
(3)	Ct says no because 
•	the original purpose of the covenant is still possible
•	(doesn’t matter that the value will be greater without the restriction – You agreed to the covenant - Tough shit.)
•	the covenant is still of value to the benefited parcels (this is hard to judge)
k.	Rick v. West
(1)	market doesn’t dictate the benefit of a covenant; Generally - it’s not a balance of equities; if someone thinks there’s still a benefit to the covenant – it’s protected
(2)	Very difficult to get a covenant dissolved for changed conditions
(3)	If ct. feels that the person is just holding out for more $, they are more likely to dissolve the covenant
(4)	Some ct.’s do take changes in market value into account.
l.	Damages
(1)	In Massachusetts cts will release the covenant but will award damages. So Mass. uses subjective measure of damages since objective measure will result in zero damages.
(2)	If Ct. is going to dissolve the covenant, they will award the market value plus some subjective damages 
(3)	Ct.’s are typically not sympathetic to someone who wants the covenant dissolved because of a change in economic value
VII.	Ownership and Control Over the Use of Property
A.	Right of exclusion
1.	Traditional view of ownership was – vertical relationship between an owner and a thing; Modern view – relationship among people with relation to things – so that everyone’s use of property affects the rights of others (Locke’s view)  right of exclusion is not absolute
2.	Shopping center cases
a.	conflict between rights of people to exercise 1st A rights and the rights of property owners
b.	1st A and 14th A together say that Congress nor the state can pass laws that abridge free speech – this is only enforced against private property owners when they act like the state
c.	Logan Valley 
(1)	When privately owned business district is functionally equivalent to a public meeting place – the private district will be treated like it’s publically owned
(2)	So – the private owner can regulate the speech but can’t bar it
			d.  Lloyd
(1)	free speech on private property is definitely protected only when it is site-specific
	ex. grocery store strike – protesting outside grocery 
	      store
(2)	Also – speech rights when private property is functioning like the state
(3)	Here, ct. says a shopping mall is not the equivalent of a public meeting place
(4)	Also, unlike Logan Valley – the mall does not have a monopoly on meeting places
(5)	Dissent – there are limited places where people congregate – the malls might be one of a few places where public speech is possible
(6)	Lloyd limits the scope of Logan Valley
d.	Pruneyard Shopping Center v. Robins
(1)	conflict between CA’s more liberal free speech rights law and the federal rights of owners under the 14th A
(2)	SC says CA has essentially changed the definition of property rights (the definition of a FSA) (which they can do) not to include the right to prevent speech on private property
(3)	It’s ok for the state to regulate property rights (up to the point that regulation becomes a taking)
(4)	The state can redefine property rights but there’s some point where they are redefining the rights out of existence in violation of due process 
			
			Note – now, the only federally-protected speech on private property 
				is site-specific 

e.	State v. Shack
(1)	rejects 1st A argument from shopping center cases – that the speakers 1st A rights trump ownership rights b/c the owner here has not opened the property to public use
(2)	This is like the company town case – b/c here, migrant farmworkers are completely isolated and never leave the farm
(3)	So, like the co. town, if the right to exclude is strongly enforced, the people will never hear anything
(4)	It makes a difference in this case that the speech is important; that it’s material to the workers
(5)	This case shows that there is a central limitation that private property rights may not be used to harm others
•	So here, because the helpers weren’t coming on the land to do harm, the owner shouldn’t be allowed to exclude them and thereby harm the farm-workers

B.	Discriminatory exclusion
1.	Civil Rights Act of 1964
a.	superceded Skellely
b.	outlaws discrimination on race in public facilities (hotel, restaurants etc)
c.	may exclude customer for whatever reasons you want except race
d.	has been applied to private places, as well
2.	Fair Housing Act
a.	prohibits discimination on the basis of race in sales and rentals of private housing
b.	exception for single family owner-occupied houses and a multiple unit if it’s owner occupied and 4 units or less total
(1)	reflects a balance of public and private concerns
(2)	Here, when you’re renting a room in your house, your private interest wins
(3)	If you advertise a room in your house – you can’t show discrimination in the ad or the ad itself (and not the discrimination) is a violation
(4)	You can include stuff in the ad about speaking certain languages (for practical reasons) 
c.	Most legislation doesn’t protect homosexuals
d.	With these acts – look for a pattern of behavior to prove
e.	Questionable whether national origin is covered – depends on whether you can consider it a race (b/c “national origin” is not covered by §1982 under the FHA)
f.	If ads can be reasonably construed as targeting a certain race – like only including pictures of white people or something
3.	ADA
a.	2 sets of obligations for anyone who acts in a quasi-public way
(1)	nondiscrimination provisions – prevent discrim. against people with physical or mental handicap
(2)	affirmative duties to accommodate those with handicaps
•	employer can’t refuse to hire a handicapped person if the person could work at a non-handicapped level with assistance – and employer has to provide/pay for the existence
•	retrofitting structures – if you renovate a structure, you have to make the structure handicapped-accessible
•	New buildings must be handicapped-accessible
b.	ADA vs FHA – FHA says even the playing field – ADA says you have to take affirmative steps; Problem – that the cost of these affirmative duties isn’t evenly distributed (which is when it would work) so that these accomodations may cause a business to become noncompetitive
(1)	this gives an incentive to employers not to hire 
people with handicaps
c.	Why impose these affirmative obligations?
(1)	society wants to even the playing field
(2)	shouldn’t the cost be evenly distributed
C.	Nuisance
1.	private - unreasonable interference with use and enjoyment of land; 
2.	public nuisance - an invasion of public rights
3.	similar to trespass – hard to tell the difference between traditional nuisance (air pollution) and trespass (b/c we know that pollution has physical properties)
a.	difference matters because trespass is closer to strict liability while nuisance is closer to negligence, a balancing test – so it’s easier to prove trespass
b.	some cts do consider air and noise pollution to be physical trespass but most don’t
c.	damages are the same
4.	Types
a.	per se – certain activities that are per se unreasonable if anyone is harmed (any residential ultra-hazardous or deeply offensive activities)
(1)	If you come to the nuisance – you’re not likely to be able to recover (like assumption of risk)
b.	all others – active conduct that seems physically intrusive
(1)	negligently operated halfway house
(2)	fence built for spite (not just an ugly fence)
(3)	unreasonably operated junkyard
c.	Social balance of nuisances
(1)	Coase joint cost theory – eliminates idea of fault – tries to see every land use as equally reasonable and that the choice of each owner puts costs on every other owner
-	it’s just incompatible desires of landowners
-	he says this idea should be taken into account when figuring out who is entitled to be free of injury – b/c both parties are always injured by the other
As opposed to the traditional test – where social norms dictate which party should be free from “injury”
(2)	Coase: in a transaction cost-less world
-	If there were no transaction costs – the entitlement given by the ct. wouldn’t make a difference.
-	If P got the entitlement, D wouldn’t stop but would buy out the P
-	If D got the entitlement, P couldn’t pay D enough to stop
-	So either way – the outcome would be the one that yields the highest social utility ($)
-	When bargaining breaks down – Coase theorem goes to shit.
(3)	Coase ignores reality (transaction costs do exist) - whoever the ct. grants the entitlement will be the one who gets what they want – bargaining won’t happen in real life – so Duty should go on the party that is in the best position to avoid the injury (technological or wealth advantages) – efficiency argument 
(4)	Coase theorem ignores wealth effect - disparate wealth, bargaining power, the effect of these entitlements on future wealth (Coase acts like the amount people are willing to pay reflects the level of their desire to eliminate the nuisance – ignores the idea that they only have so much $ to begin with)
(5)	Coase ignores – how endowment effect affects bargaining – higher value you place on something when you have it and are afraid of losing it vs. when you don’t have it and you want it; if P has the entitlement – they will make D pay more to continue than they would have paid to make the D stop (had the D had the entitlement)
(6)	Fairness Q – where we put the entitlement affects distribution of wealth between the P and D
					-   public policy
-	who came to the nuisance?
(7)	Coase’s bargaining model (where parties would bargain to reach the best result) ignores outside parties – who are affected but aren’t liely to be taken into account in bargaining

(8)	Morganv. High Penn Oil
-	resident vs. oil co. spewing gases/smells
-	Ct. looks at the injury to P and finds for P 
-	(intentionally and unreasonably released the pollution)
-	Coase would say there shouldn’t be a value judgement; there are costs to both of them

(9)	Estancias Dallas Corp. v. Schultz
-	loud-ass AC in an apt. complex next to a house
-	Coase says P has right to be free of noise and apt co. has the right to put the AC there
-	Ct. here looks at injury to P; finds for P using a threshold test – when the injury to P is over a certain amount  nuisance
				Modern tendency – to use a more comparative standard – 
				balancing P and D’s costs and benefits (R2 defn of nuisance 
				= harm vs. utility of D’s conduct)
-	If you were going to balance the costs to P vs. to D here -  you would use damages to P’s health and decreased property value (vs.) the cost to D
-	What is the cost to D? Cost of fixing the problem now or what it would have cost to do it right the first time?
-	Should use the cost of doing it right the 1st time – to give an incentive to future D’s to prevent the nuisance (otherwise P’s injury would always be smaller than the huge cost of  fixing D’s mistake)
		               -	Still, here - if you look at the modern balancing test, the D’s cost is more than the cost to P – so there should be no injunction but D pays P the reduction in their property value
				-	
(10)	Boomer
-	liability determined by threshold standard (certain amt of damage to P ($100/yr) = nuisance)
-	damages – whether to grant the injunction is decided using the balancing test (balancing the cost of granting an injunction vs. just making D pay damages)
d.	A rare remedy in nuisance cases – where ct finds that D is not liable but allows P to have an injunction to make D move; In these cases, P has to pay D to move (b/c it’s not D’s fault)
e.	Property rules of damages – an absolute right/strong entitlement is given as damages 
(1)	(ex.’s injunction for P; absolute right to continue the activity)
	(2) An injunction may be difficult to administer
f.	liability rules of damages – Ct finds one party liable and awards damages; 
(1)	If D is not liable, D doesn’t have to stop the activity (so in effect, they keep the $ they would have had to pay to eliminate the nuisance); 
(2)	If D is liable, they have to pay the value of the damage that the nuisance causes P (they don’t have to stop doing it);
(3)	When the ct thinks the nuisance has some social value – this favors granting damages
(4)	When ct. thinks the social harm of the nuisance is great, this favors granting an injunction (thereby stopping the activity) (property rule)
(5)	Strong argument for giving an injunction and not damages: an injunction lets parties bargain it out – then the ct doesn’t have to decide the value of these rights
(Won’t happen – It’s a big Coasian steamer)
g.	Ct. may rule that the parties can’t negotiate out of the injunction
(1)	Ct may decide that the nuisance has a greater social cost than what the P is willing to sell out for (so even if the P would bargain and let the nuisance stay, the ct says – It’s gotta go!) Fried thinks this is paternalistic.
-	Related to wealth effect – where the poor P is willing to sell out her entitlement for less than it’s worth
-	
(2)	Ct may determine there’s a greater overall social benefit in destroying the nuisance than in letting parties bargain out of it. 
D.	Private agreements vs. Public Regulation
1.	main argument – 
a.	public regulation – non-negotiable, compulsory, subject to change, no consent required, exit is costly (Leave the country! Anarchy!)
b.	private regulation – negotiable, optional, easy to exit from terms you don’t like, taking the deal indicates consent
2.	Home Owners’ Assoc. cases
a.	A home-owners’ assoc. looks like private agreement BUT
(1)	Mimicks government functions 
(2)	May impose new restrictions that the members do not have to agree to (as opposed to the ones contained in their deeds which they consented to by buying)
(3)	(If you have the rule from the beginning (in the deed) – easier to administer)
(4)	It’s hard to say that home owners’ assoc’s are consensual and negotiable b/c many times their regulations are consistent in the whole area – so they are hard to escape from 
(5)	It’s expensive to try to search for somewhere without the regulation you want to avoid – so there’s no easy choice
(Like public regulation – if you don’t like it, all you can do is leave)
(6)	Nahrstedt – 
a.	lady with cats in condo with flat rule against pets
b.	If you move in and the rule is already in place, you get less leeway (b/c you knew it was there) (and the restriction was accounted for in the purchase price)
c.	If a new regulation is enacted after you’re there, it is held to a higher standard of reasonableness when challenged
E.	Public Regulation: generally, zoning
1.	sources of govt.’s power to regulate land use:
a.	police powers – gives govt the right to regulate private conduct for public saftey and welfare; not required to compensate for any losses resulting
(1)	ex. zoning
(2)	implied, not in Const, very hard to oppose in ct.
(3)	may diminish property values without consent or compensation
b.	eminent domain – govt right to take private property for public purposes; compensation is required by the 5th A (for the federal govt.) and the 14th A (for state govts)
2.	Village of Euclid v. Ambler Realty
a.	P said zoning exceeded police powers
b.	Cumulative zoning ordinance – each zone can have X use and also all higher uses
(1)	ex. zone 1 – single family; zone 2 – multi-family and single family etc.
c.	Ct. defends regulation (zoning) by saying the laws control nuisance – trying to prevent factories in neighborhoods etc.
d.	Issues
(1)	Is having a quiet low-rise office park in a neighborhood a nuisance (like a factory would be)? Hard to make that argument
(2)	Zoning takes the place of difficult, improbable transactions where a neighborhood pays a factory to leave
(3)	Does putting all the factories together encourage pollution (b/c factories won’t sue each other)? That’s where environmental laws have to step in;
(4)	People with single family homes don’t want to live by apartments; problems:
-	could result in economic segregation
-	obvious gains in separating industrial and residential – but why separate single and multi-family homes?
-	Mixing single family and apt’s takes value away from single family and adds value to apts (wealth redistribution)
-	What’s the point of single-family home neighborhoods – to avoid crowding or really to keep lower income people out and keep property values up
F.	Eminent Domain
1.	state vs. federal laws – state laws only take effect if they are more stringent than the federal 5th A rule
2.	3 parts:
a.	taking of land
b.	for public use
c.	requires just compensation
3.	Just compensation
a.	If govt. takes your whole property – you get fair market value of buildings and land
b.	If govt. regulates in a way that’s a taking – you get the decrease in value of your land
c.	Issues about “fair market value”
(1)	fixed by the ct in condemnation proceeding – could be too low (don’t get how much the property really might go for)
(2)	may not equal ownership value (not reflect subjective value to the owner, relocation costs etc.) – just pay objective value
(3)	damages don’t include going concern value of a business (loyal customer base, good will in neighborhood etc)
(4)	this is a liability rule – fixed $ amt.; (under a property rule, you would have the right to your property and could bargain with the govt. to factor in subjective value – like you would with any buyer)
(5)	Justification – “just” compensation can’t try to make people whole using their subjective values - if the govt paid for that – they’d never be able to buy land b/c people would hold out
4.	Public Purpose
a.	construed deferentially to govt.
b.	rarely disputed – except when the property is transferred to a private interest
c.	state cts – less deferential to govt. power – so some takings get struck down for lack of public purpose (state cts defer to their legislatures and many states have more stringent ED laws) 
d.	At some point – private interests are aggregated to the point that they become “public”
e.	Hawaii Housing Authority vs. Midkiff
(1)	a few people own most of the land
(2)	landowners didn’t want to sell b/c of high taxes (no tax on ED sales)
(3)	State law passed so that - Hawaii condemned the land and people who had been renting could buy it with financing from the govt.
(4)	Is this a public purpose? HHA never takes possession; looks like transfer directly from owners to former renters
(5)	Ct says this is not for a few landowners but for the general good: the interest of all the citizens of the state in widespread land ownership (the benefits will be generalized)
(6)	SC here respects the state legislature’s interpretation of what constitutes a public purpose (what promotes the public good)
(7)	All public acts incidentally affect private individuals –overall goal must be the public good
f.	Poletown v. City of Detroit
(1)	Detroit planned to condemn a neighborhood for a GM plant – GM said they would leave if the city didn’t give them land for a new plant
(2)	Economy was really bad – Detroit trying desperately to keep GM in town
(3)	P says this isn’t a public purpose – the land is being taken for GM
(4)	Ct. says – what’s good for GM is good for the public in this case
(5)	If city had just given tax breaks – the burden would be widely distributed; But in ED, even though homeowners are compensated – the real value of their property (subjective value) isn’t taken into account – so they bear a disproportionate burden
(6)	Policy
	(a)	What’s objectionable about it?
				(1)	GM may end up being the primary beneficiary
	      	(2)	Seems disturbing that a private party initiated 
	the taking
					(b)	Counterargument
				(1)	city council made the decision and they 
	represent the interests of the people
	      	(2)	not clear that GM is profiting from the situation 
	– could be that Arizona offered GM incentive to come there and Detroit just matched that amount (so that GM was indifferent)
	(c)	Seems like what makes the difference (in how we feel about takings) = who bears the burden And who gets the benefit
(1)	ex. tax breaks for GM
-	burden – widely disseminated
	-	benefit – both public and private
(2)	ex. Poletown
-	burden – concentrated on the area
	-	benefit – both public and private
(3)	ex. an urban renewal project
-	burden – concentrated on the area
	-	benefit – public
	(d)	Should there be a way for cities to prevent corporations from leaving like this? 
(1)	ex. Local 1330 v. U.S. Steel – union tried to prevent the co. from leaving the town using estoppel/detrimental reliance argument – failed
5.	What counts as a taking? 
a.	Core taking – you house is torn down to build a highway
b.	Other physical invasions (per se rule) – constitute a taking no matter how slight; no matter what the impact on the owner is
(1)	ex. air rights
(2)	ex. putting a cable line to your house
c.	Hadacheck v. Sebastian
(1)	guy operating a brickyard on the outskirts of LA
(2)	LA expanded toward his land until he was within the city limits
(3)	Now his business violates a city ordinance
(4)	P says this exceeds the state’s police powers so it’s a taking; So govt should
(a)	not be allowed to do this (wrong use of police power)
(b)	have to compensate P for a taking
(c)	modify the regulation
(5)	Ct holds – this is a legit exercise of police powers
(6)	Focus on the fact that there is value left in the land
(7)	Here, the govt is trying to stop destructive behavior – not bestowing a public benefit
d.	Tests for police power vs. taking
(1)	Permanent physical invasion – per se taking
(a)	an action that would constitute a physical trespass if it had been a private party
(b)	Causby case – letting the govt. have a flight pattern over property under the allowable height (within the owner’s air rights)
(c)	If the govt. permanently floods someone’s land to build a dam, it’s a taking
(d)	Loretto v. Teleprompter Cable 
i.	law required people to allow TV cables to be run over their houses
ii.	It’s a taking – any permanent physical occupation, no matter how slight, is a per se taking
iii.	(4 points from opinion) – invasion violates the most property important rights (market value of selling the right to the cable co.) (also maybe aesthetic value)
iv.	lets a stranger invade – so what?
v.	Permanent physical invasion (owner has no control – makes it more intrusive than just a regulation – even if the regulation forces you to put something on your property – at least you have control over it)
vi.	It’s good to have per se rules to make things easier – so the clear physical invasion = taking rule is good (but it’s really not that clear b/c the meanings of permanent and physical aren’t always clear)
-	Don’s really important comment – what if the planes aren’t flying overhead but are creating constant sound on your property
-	Pruneyard is still Ok after Loretto (1st A speakers case) Why?
1.	it’s temporary
2.	regulations that enforce a right are not a taking
3.	distinction between regulating behavior of invitees and forcing entry
4.	owner’s property rights don’t include the right to exclude people unconstitutionally
(e)	Yee v. City of Escondito – owners say a rent control statute is a taking b/c it says they have to keep tenants there and charge them a certain rent; (can’t evict w/o cause)
i.	rent control is OK because the owners invited the people in and the law is regulating the conditions of that
ii.	once you let people rent, you have to let them stay unless you have a good reason to make them leave
iii.	But doesn’t this seem much more intrusive than Loretto? – especially financially
(2)	Harm prevention vs. bestowing benefit
(a)	govt can use police power to prevent a nuisance
(b)	if govt is trying to get a public benefit from the landowner – taking
(c)	Coase argument – what’s a “harm” or “benefit”? – everyone’s use of land affects everyone else’s – joint costs
(d)	Michelman’s argument – what’s p.p. or taking is determined by what rights we say people have to begin with (normative view of entitlements) – if you have a right and it’s taken away taking; if you don’t have the right, your behavior can be limited under p.p.
-	ex. you don’t have a right (society says) to pollute – so if the govt tells you to stop, it’s p.p.
(e)	Michelman applied to Poletown
-	To make it for public benefit - define right – people have a right to the property; govt takes it = taking
-	OR to make it harm prevention - define right – people have a right to their property subject to the state’s decision to take it for public purposes; state takes it = police power
(f)	What is usually considered a harm (things people don’t have a right to do)?
-	traditional nuisances (seems like p.p. can eliminate anything that looks like a nuisance)
-	ex. Hadacheck – his business is a nuisance; When p.p. is regulating a nuisance – you can’t use the argument (like you would in a civil case) that the neighbors came to the nuisance (to try to make the govt. pay); Ct says the city has to be able to regulate these things or the city won’t be able to grow and change (don’t want the city to have to pay every time they pass a law)
(g)	harm prevention v. bestowing benefit test doesn’t tend to be dispositive except in typical nuisance cases
(h)	Not really used as a balancing test – instead, govt/society decides what rights people have/don’t have (i.e. prior determination is made as to what is a nuisance- a “harm”); once that decision is made, that behavior can be regulated under p.p. 
		(3) Amount of value taken
			(a)	taking 100% of the value = taking
			(b)	too much value taken = taking
			(c)	Penn. Coal Co. v. Mahon
		1.	Facts: Penn Coal transferred surface rights to property to 
Mahon but reserved the subsidence and coal extraction rights; Mahon waived rights to damages from coal removal
2.  	 Later – Kohler Acts passed –   saying you can’t mine coal in a way that causes subsidence on residential land
			3.	P tries to mine the land; M tries to get an injunction based on the Kohler Act
				4. 	P says the Kohler Act was a taking of their rights w/o 
				  	compensation
5.  	Ct says it’s a taking b/c it takes 100% of their coal extraction rights and subsidence rights (they look at it that way b/c Pennsylvania law divides the property into 3 bundles of rights – coal extraction, subsidence and surface; Penn coal only had subsidence and coal extraction – so the law took 100% of the rights they had)
6.  	Important how rights are defined because of the denominator problem
7.  	Potential problems – companies could sell off unneeded rights ahead of time to shrink their denominator 
8.  	Home owner got what they paid for – price reflected risk that the land would fall in due to mining (landowner receives a windfall – Kohler Act gave then more rights then they contemplated at purchase)
9.  	Did the parties explicitly divide the rights and risks in the purchase contract?
			(d)Average Reciprocity of Advantage
10.  	If the owner obtains some amount of benefit, even though it’s disproportionate to their loss, it may justify police powers because person is not losing everything (i.e. the benefit they are receiving is offsetting their loss)
11.  	How do you measure this? – Must the person being burdened benefit from this particular exercise of police power or is it enough to say they benefit from society as a whole?
			
(e)	Penn Central v. City of New York  
1.	Facts:	Penn Central owns grand central station and 
wants to build a big office building over it but the building has been declared a landmark so they can’t
6.	     Measuring the extent of the value taken (the 
	denominator)
a.	investment-backed expectations – the “primary expectation” of the parties when they acquired the property (here – they expected the property to be used for a terminal and some office space)
b.	Other ways of measuring IBE’s are the cost you put in and the present value of the property considering changes since purchase – the court rejects that idea here
c.	This is the value that should be protected – not later increases in market value due to newly discovered ways of exploiting the property
d.	What about Average Reciprocity?
Penn Central has lost an amount disproportionate to others in the city but the court says this is mitigated by TDR’s (transferrable development rights) 
e.	Court treats the denominator as IBE here and numerator as air rights as they were originally contemplated upon building minus the TDRs
a.	Exactions
= under legitimate police power, the govt could forbid you to do something (what you’re doing is a violation of an ordinance or they could refuse to give you a permit etc) but they let you do it (stretch the law) in exchange for something
1.	Nollan v. California Coastal Commission
(a)	Ordinance against building something that restricts the public’s view of the ocean
(b)	building permit given but conditioned on providing an easement to let people walk across their property (horizontally) to connect two parks
(c)	there has to be a nexus between the exaction and mitigation of the harm that the ordinance is meant to prevent (it’s ok if the exaction is mitigating that harm)
-	important because you don’t want the govt. to be able to extort things from people 
-	If these exactions were taken unfairly – it could scare off economic development
-	Still, why do we care if the developer will have to be burdened in unfair ways – because we could tax them for these things anyway
(d)	If the easement was just taken outright, it would be a taking but it’s ok here because it’s part of a permit that the govt is not required to give
(e)	Makes a big difference how you define the harm – b/c here, if you say the harm is restricting beach access, the easement mitigates that harm but if it’s restricting visual access of the beach, the easement is not related
2.	Dolan v. City of Tigard
(a)	Dolan wants to expand hardware store and city wants to exact 15% of the land to expand the greenway along the creek and to dedicate as a bikepath.
(b)	City says the greenway is to alleviate flooding and the bike path is to alleviate traffic congestion.
(c)	Court says this is a taking because they could further the purpose of the ordinance by just forbidding development on the part of the parcel to alleviate the flooding problem.  However, here the city is actually trying to take the land away.
(d)	Rehnquist uses two tests here: Nexus Test and Rough Proportionality
(e)	Nexus Test Applied-Could say greenway needed to mitigate flooding but do they really have to take Dolan’s land?  Also, will the bike path actually carry biking traffic to the hardware store or is it solely recreational?
(f)	Nexus needs to pass the laugh test but need not be perfect synergy.
(g)	Rough Proportionality Applied-Must be able to show some quantitative relationship between the harm caused and the mitigation proposed.
Also, this test considers fairness.  Isn’t it more fair that the person who harms the community be made to mitigate that harm.
3.	Lucas v. SC coastal council – 
(a)	Facts: guy makes big investment in land – statute enacted that says you can’t do anything with the land (to prevent erosion/ecological reserve)
(b)	If it’s to prevent a nuisance – the govt can take 100% (under police power) 
(c)	100% of the value was taken – is it preventing a nuisance? (Is the law preventing a harm or just benefiting the state?)
(d)	Scalia says that when the govt takes something from you that you have a right to under your title – that is not harm prevention. Activities that expose you to nuisance liability are not your right – so it’s ok to regulate those activities. 
-	Classifying something as a harm shouldn’t be just semantics
-	Trying to protect people’s expectations when they buy (by using nuisance law - allowing nuisance law to evolve over time but not allowing sudden legislative changes) 
-	Counter-argument – you should have seen the law coming (how would you figure that out?
(e)	Problem – Scalia says regulation is for harm prevention only when a good nuisance claim could be made to prevent the activity. (otherwise it’s conferring a benefit of the govt and has to be compensated) This is too narrow a definition – there are other things that you do not have a right to under your title – that the govt should be able to regulate as well.
(f)	How is the state supposed to decide what rights are included under title?
(g)	Dissent says that this rule prevents the legislature from defining new things as harms; gives all the power to the court
- presumably when they made the law, they decided that the activity was a nuisance and wanted to prevent it – now the ct is going back and making that decision again (Is the ct better to decide this – so that they should be able to overrule the legislature?)
(h)	Also – this test only works when it’s a 100% taking – ignores lesser takings
(i)	Person who buys after the regulation should not be protected by this (if they paid with the idea of building or whatever but it was already illegal – they just overpaid) (Hunziker)
b.	Summary
1.	Physical invasion = per se taking (would be a trespass)
(a)	invitee vs noninvitee – can’t throw someone out after you’ve invited them unless you have good cause (doesn’t become an invasion)
2.	100% deprivation (remember denominator problem) is a taking unless it’s a nuisance (remember definition problem)
3.	balancing test – (Penn Central) – when it’s less than 100%
-	extent of harm conduct would impose
-	extent of the burden to the owner
-	extent of value taken away from expected investment
4.	Caveat from Nollan and Dolan – even if the taking is an exercise of police power, still must have a nexus between harm and remedy (the prohibition and the exaction) as well as rough proportionality (or justice)
5.	Policy:
(a)	Rough Justice! – govt takings should not just benefit or burden one person (if the govt takes all of your ownership rights, taxpayers should pay for that b/c they’re all benefiting from it)
(b)	Giving up the right to exclude = bearing a disproportionate burden (but this can be taken too far – see Loretto)
(c)	Ackerman – maybe instead of all this – the test should be – What would the typical citizen think is unfair (if they saw it being done to someone else)? 
(d)	Michelman – Utilitarian analysis – choose the option with the lowest cost
i.	weigh settlement costs (cost of getting the land through ED),
ii.	demoralization costs (where people are pissed and nervous when their stuff is taken without compensation) and
iii.	efficiency gains – benefits to society
iv.	You shouldn’t regulate at all if efficiency gains don’t outweigh the costs that will be incurred by regulation (demoralization and settlement costs)
-	if demoralization cost is low (people don’t care) – then just take it by police power 
-	If demoralization cost is high (people do care) – then use ED because it’s worth paying the settlement cost
(e)	Couldn’t we just use insurance instead of having ED at all?
i.	cost of owning land would go up a little; the cost of lost land would be spread out
ii.	but it probably wouldn’t work to cover smaller takings – b/c the insurance wouldn’t be worth it
iii.	Also – likely targets of taking wouldn’t be able to get insurance because the taking would be predictable
(f)	Libertarian – relationship of person and govt = everyone has isolated rights and gives up some to get police state benefits
i.	When the regulation is to prevent harm – it’s like placing a tax on the owner, causing him to internalize the costs
ii.	when the regulation is for benefit – it’s equivalent to tax and transfer  (transferring wealth – making one person benefit others) 
(g)	Holmes – average reciprocity of advantage – the taking benefits everyone including the target of it
(h)	Epstein – Any redirection of money from the rich to the poor is a per se taking-  But if the benefits and burdens of the regulation are spread widely enough – everyone benefits including the owner (like Holmes); no compensation is required then
i.	1 virtue – treats taxes and takings as one integrated system (doesn’t make sense to scrutinize one and not the other)
ii.	problem – likely that the Constitutional framers meant takings only to cover core takings (land etc.) but nothing supports the idea
(i)	Social argument – we’re all a group and we’re all better off (we all benefit each other) – so much that whatever we have is up for grabs b/c society gave it to us; all of our actions have social ramifications; without the state there wouldn’t even be property
-	but ED clause itself shows that everyone agrees that there is a limit to this
-	the social idea would mean that the govt could do anything with property that it wanted – that doesn’t mean it should – would be very demoralizing
VI.	Landlord-tenant law
A.	Leases 
1.	contract
2.	3 possible remedies when landlord defaults on the lease 
a.	tenants can retain possession and not pay
b.	leave early and not pay
c.	fail to vacate at the end of the lease
3.	Berg v. Wiley
a.	person leasing property to operate a reastaurant; person in violation of health codes; They had to make changes in a certain period and didn’t (had a sign that said closed for remodeling) Also they were remodeling without the landlord’s consent; landlord changes locks while person was gone
b.	landlord claimed the property was abandoned and that the lessee was making changes without permission
c.	Landlord is allowed to use self-help if it’s peaceable/non-confrontational; Ct says picking/changing locks is not peaceable
(1)	could make for a physical confrontation
(2)	landlord could have gotten a legal remedy within 7-10 days through a summary proceeding
d.	If there is a fair forum to raise the issue quickly, self-help isn’t allowed
e.	Some jurisdictions won’t let a tenant use landlord’s misconduct as an excuse for withholding rent – have to go after the landlord in a summary proceeding
f.	Is the “no self help” term a default term (so that it can be avoided by K)? or is it a mandatory term? Unclear from the case. Jurisdictions disagree
(1)	When it’s a default term – all K’s will have a provision waiving the no-self-help rule
(2)	When it’s mandatory – rents will be higher to pay for legal proceeding
4.	Sommer v. Kridel
a.	D signed the lease and then tried to cancel it – didn’t pay the rent
b.	Traditionally in property – landlord has no duty to mitigate
c.	Landlord has duty to mitigate damages under K law (has to try to get a substitute renter)
d.	The person renting couldn’t sublet the apt. so he couldn’t mitigate the damages. So it’s ridiculous to allow the landlord to sit back and not rent the apt – that’s economic waste
(1)	even if the tenant could sublet the apt – the landlord 
					would probably still have to mitigate because the 
					tenant is not in the best position to find a replacement
e.	Here, the landlord turned away someone trying to rent that specific apartment – can’t do that
f.	If the landlord has other vacancies, they would want to fill their other vacancies first and reserve your right to sue
g.	But – the landlord can’t do that. If someone wants that specific apartment, they can’t refuse. If they do, they didn’t mitigate damages (and they could only recover the difference between the K price and the amount you would have been paid had you rented the apartment when you should have)
h.	What does the landlord have to do?
(1)	has to treat that apt like any other vacant one. If you do that, you can collect those months of lost rent (if you made reasonable efforts) – but you could only collect what the apartment would go for on the market (not what the tenant had rented it for)
(2)	Even if you do rent the apt for less $ - in some places you could get the difference (probably only if it’s in good faith)
5.	Reste Realty v. Cooper
a.	Basement keeps flooding
b.	Landlord keeps cleaning it up and trying to fix the driveway. He dies. New landlord doesn’t help. Tenant leaves. 2 or 3 years later – next new landlord sues to recover back rent
c.	Ct says she could leave b/c the landlord has an obligation to protect her enjoyment of the property
d.	This is like an eviction – she doesn’t have to pay (b/c the tenant doesn’t have to pay when wrongly evicted) and is released from the lease (repudiate)
e.	Constructive eviction – what the landlord does is a substantial interference with the tenant’s rights (tenant is off the hook)
f.	The lease said that the tenant had a responsibility to keep the area clean – but didn’t have any responsibility to keep the driveway from flooding
6.	Implied warranty of habitability
a.	when leases are silent, the warranty is implied
b.	Mandatory obligation
c.	Breach of the covenant to maintain can be used as a defense for nonpayment of rent (in the past, could only say this when evicted but now, extended to constructive eviction)
d.	Hilder v. St.Peter’s – 
(1)	traditionally – LL has no obligation to maintain the premises in any condition unless it’s explicitly in the K
(2)	Modern rule – non-waivable W. of H. implied into all leases for latent and patent defects (people used to be able to fix everything – but now the LL is in the best position to maintain)
(3)	2 ways to remedy
(a)	uncontroversial – tenant can claim damages for the difference between the condition it should have been in and the condition it was in.
(b)	controversial – tenants have the right to set-off the rent by the value of the breach; (even if the tenant does not vacate) – some places make the tenant put the un-paid rent in escrow (how can you put the $ in escrow when you need it to do repairs)(sometimes tenant can make the repairs and deduct it from the rent)
-	important victory for tenants, important right to be able to stay put – then the burden is on the LL to sue
(4)	tenant didn’t withhold the rent here
e.	generally – no implied WofH for commercial rentals; sometimes none in owner-occupied single family houses
f.	Most places – tenant can raise breach of WofH in a summary proceeding as a defense to non-payment of rent
7.	Rent Control
a.	Rent control – imposes limits on current tenants but once they leave, the LL can raise the rent. (unless there’s a spousal provision); original price + reasonable maintenance
-	some places restrict the ability of rent control LL’s to 
pull properties off the market and convert them to condos
b.	Rent stabilization – once it’s under the law, the rent stays controlled no matter who rents
c.	effect of mandatory terms on housing K’s? (what about other effects – like the value of people being able to stay in their homes? Are there other ways to protect these interests?)
(1)	White – all these measures inflict costs on someone; you can’t put the cost on the LL – b/c she will just pass the cost on to the tenants
(a)	WofH imposed – supply will decrease b/c LL will fold – then the cost of what’s left will go up
(b)	If both WofH and rent control – even more LL will leave
(2)	costs of rent control will cause quality to go down; If you add WofH, LL will go out of business
(3)	Some tenants will benefit at the cost of those who are driven out and can’t afford new higher cost housing (and often the ones who benefit aren’t the ones who really need the help of rent control)
d.	Response – empirical evidence about effects are unclear
(1)	Posner – even if evidence did show that implied WofH did increase rent – maybe that’s just correcting for the fact that people would have been willing to pay more for better housing. Problem with that – in most places where the WofH would be an issue – the people can’t afford to pay more.
(2)	Some reasons to think that tenants would not bear the cost
(a)	elasticity of supply and demand – if consumers are price-sensitive – LL will have to absorb cost because people will start moving out
(b)	If LL has invested a lot of $ in the apt building that can’t be recovered, they are more willing to absorb some costs; they can’t get out easily because even if they get out, the price will reflect the presence of warranty and rent control statutes; They will stay as long as they can absorb the costs
(c)	LL’s have imposed monopoly rents so they can absorb some costs without leaving
(d)	Problem – ignores the fact that people take risks investing in land – if profits get capped when the land gets valuable – creates a disincentive to invest in land at all
(e)	If the LL doesn’t have a lot of $ invested, they’re likely to leave – Baker
(f)	The supply isn’t likely to change much because unless the LL is losing $, they’ll stay; Demand may be more changeable – tenants may not be able to pay any increased cost; LL will have to absorb it then
e.	There are values to housing that can’t be measured in economic terms
(1)	– person’s attachment to the housing (part of your identity) – so maybe it’s ok to protect community and identity even if rent control only benefits some people
f.	Is rent control too paternalistic? Is it really helping?
g.	Effectiveness is bound by the market reaction (how LL’s react)
h.	Govt could give vouchers or build housing
(1)	could create a ghetto but many projects have been successful
(2)	vouchers could give people more mobility than choice
(3)	All of these programs only work with adequate funding – otherwise public housing becomes a slum that can’t be maintained
(4)	(or vouchers can’t be maintained)
(5)	Problem – also created a disincentive for people to work
(6)	These projects have created a ghetto-ized society divided along racial and social lines