I.	General Info About Property law
-	address relationships of people to each other and things
-	title is a relative concept
-	there is no such thing as title registration
-	real property = land
-	property rights are not absolute + must be backed by Gov.
-	landownership = ownership of natural resources

possible causes of action:
-	ejectment: remove someone from possession
-	replevin: recovery of the item
-	trover: award of damages
-	conversion: wrongful exercise of ownership rights of personal property of another

issues: 
-	private v. public law
-	common law
-	constitutional issues
-	contracts
-	economic doctrines
-	history

Questions:
-	What is property?
-	What are the attributes of property?
-	How are property rights created? (major theme of Chapter 1)
-	What is the role of “first in time”?
-	What is the role of possession in the formation of property interests?

Reasons to have private property
1)	maintain peace + equality
2)	control greed
3)	allocate resources + organize society
4)	Locke’s Labor theory
-	if you labor + mix labor with land, you acquire greater right to it than others
-	Haslem v. Lockwood – P won trover action for piles of manure because P worked to collect it

1.	
Acquisition by Discovery 

A.	Description
-	discovery = finding of unknown territory (America’s discovery  title to England/king)
-	discovery + conquest are not really relevant today (not much unchartered land)
-	discovery by savages does not count
-	Locke says savages did not labor enough to get title

B.	Johnson v. M’Intosh (S.Ct.) (3)

Facts:	 	
-	P + D are successors to the original title holders
-	P got title from Indians
-	D got title from U.S. Gov.
-	issue is whether Indians have right to have title to land
-	P’s cause of action is ejectment (could also be considered acquisition by capture)
			
Holding:	
-	U.S. got land through discovery   not entirely accurate, more like theft or conquest
-	court distinguishes discovery v. conquest & appropriation by force v. theft
-	conquest = right to displace former holder of property by force, maintained by force, and involves living side-by-side with Indians or absorbing them into white culture 
-	true conquest is impossible because Indians are “savages” and cannot live with “white” settlers
-	Indians sacrificed right to possession because they would not assimilate to “whites”
-	Marshall seems to acknowledge that U.S. got land through something like conquest

2.	Eurocentric attitudes with respect to Johnson

Conflict of Law issue (9) 
-	conqueror’s rules are applied = U.S. law + standards are applied
-	not much knowledge or interest in Native American law

Common Law
-	original property rules - created to control infringement of property rts. by European countries
-	this common law is applied in U.S.
-	court believes it is not creating rules, but is simply applying well-established rules

Property issue: (9) 
-	Indians don’t possess land because they did not cultivate and improve land like white settlers would

First in Time
-	Indians were 1st in time but this does not matter
-	1st in time may only refer to 1st since white settlers arrived to U.S.

Institutional Competence
-	which institution in society is best suited to make the necessary decision
-	S.Ct – least suited to make decisions with respect to foreign affairs 

II.	Acquisition by capture

A.	Issues/problems to consider
1)	1st in time
2)	Locke Labor Theory
3)	you can analogize to capture of animals + resources
4)	oil & gas has real value only after it is extracted
5)	difficult to talk about ownership in this context	
6)	encourages over-production + race to be 1st in time to capture
-	too much access to same reservoir  pressure will dissipate  difficult to remove oil & gas 
7)	A & B could negotiate  unitization = agreement to work together
-	state may force involuntary unitization because public has interest in oil & gas 

B.	Pierson v. Post (19)
Facts:	 	While Post pursued fox Pierson killed and carried off the fox
Holding:	D won
-	occupancy = right to property
-	ct considers administrative feasibility and wants definite test (to preserve peace, order, and certainty)
-	pursuing or seeing animal alone are not enough to create property rights
-	you have to wound, circumvent or ensnare in conjunction with pursuit so as to
1) appropriation for individual use 2) depriving animal of natural rights 3) bringing animal under control

concurring opinion – wants pursuit + reasonable prospect of success (this decision is vague or uncertain)
           believes it is in public interest to pursue and kill “pernicious” foxes

1.	constructive possession 
-	the landowner would have right to possession greater than Pierson or Post
-	does not require physical capture, but for policy reasons the landowner’s right to exclude 3rd parties from his property is acknowledged 

C.	Fugitive Resources
1.	Oil & Gas 
surface of the land	      A          |           B
		        		       |			
         oil & gas	                   
                              	    		       |
					       |

a. Hypo 1 - A drills, taps the reservoir under her property, and extracts oil & gas 
  1) Does B have any claims? 
       Labor Theory of Value:	A + B can keep $ from oil & gas if they take initiative to capture oil & gas 
				encourages competition between both to get resources

b. Hypo 2 - A drills, taps reservoir under B’s property, extracts oil & gas
-	even if there is an advantage to drilling on B’s property (ie rocks in the way on A’s land)
-	A still can’t trespass by drilling on B’s subsurface
-	if A trespasses + takes from “slant well,” B can exclude A from his property & recover what A has taken
-	this discourages trespass 

c. Hypo 3 – A reinjects gas
-	A would not be liable even if A still owns gas technically

2.	Technicalities about extracting oil & gas
-	A + B are surface owners, but hire experts to remove the oil & gas using oil & gas lease
A + B = lessor      and         Oil Co.: lessee
-	this relationship functions almost like co-ownership
-	A + B supply land, transfer rights to engage in drilling to Oil Co.
-	A + B get royalty interests, traditionally 1/8 of proceeds
-	Oil Co. incurs all risks, expenses, and gets 7/8 of profits traditionally
-	may bring in 3rd party financer, receives overriding royalties

3.	Coal, Water, and Air Rights		

Coal - A can only recover the coal on A’s land 
-	CAPTURE DOCTRINE APPLIES TO FUGITIVE RESOURCES
-	negotiation between A + B is still desirable

Water  US doctrine based on geographical placement of water
-	controlled by gov. (used to be “reasonable use” standard)

Western states – (water is scarce) – 1st in time = prior appropriation 
-	encourages premature and excessive diversion use of water
-	ration poorly 

Eastern states – (water is plentiful) – riparian land = land along a water source
-	each riparian land owner had right to use water subject only to other riparian land owners
-	does not consider how much water the land needs
-	encourages “bowling alley” parcels

Air rights  litigation re: airplanes overhead has been inconsistently decided

NOTE: Middle East: considers subsurface the common property of all

D.	Externalities
-	encourages misuse of resources
-	the cost of internalizing is greater than the benefits and the person creating the external costs does not take it into account
-	inevitable result of transactions re: resources + land-use

1.	Demsetz essay: Toward a Theory of Property Rights (p. 40)
-	says property rights result when it is more beneficial to internalize externalities
-	Demsetz supports a private property system because:
-	no incentive to maximize except for self
-	it is hard to organize groups of private owners to act even though community benefit
-	 it forces a lot of internalization of costs/externalities 
-	a private owner will be more concerned about future costs etc.
-	no negotiation
-	A’s actions produce external costs to B
-	i.e. when A removes oil & gas = oil & gas lost by B

a.	Consequences of Absorbing Externalities
-	a pure economic analysis may not be appropriate

issues:	1) misallocation of resources
2) sometimes change in the market is needed before externalities are significant concerns
ie: Demsetz cites the fur trade as an example

hypo: 	owner of house wants to change his house to an old age home
	economic analysis show that the value of surrounding property will be reduced if he does
	there may be zoning ordinances restricting or prohibiting this
	issue is whether to consider economic analysis or equity

b.	Problems or Barriers to Successful Negotiations
1)	transaction costs
2)	free-riders
3)	hold-outs – a party that doesn’t want to be bound by the agreement  (overlaps with free-rider to some extent)
4)	policing costs – evaluation costs, identification costs, lawyers fees
5)	difficulty in identifying the “culprit”
6)	difficulty in getting parties to worry about the future
7)	government intervention because private parties have difficulty regulating by themselves
III.	
Acquisition by Creation
-	through labor + capitol investment if you create something, you want property rights 
-	tradeoffs between private rights + market economy

A.	INS v. Associated Press (62)
Facts:    landmark case in IP
-	AP’s claim: INS pirated AP’s property and misappropriated AP’s property interest through looking at AP’s news stories on AP bulletin board, early edition papers and copied the news (not the text)
Issue: what is the property being claimed?  property interest in the news, facts, and information
-	you can copyright your version, description of the news
-	facts can’t be anyone’s property + time sensitivity (news becomes part of public domain eventually) 
-	quasi-property (unclear “fuzzy” word, as unclear as notion of constructive possession)
Holding:  P won  S. Ct found misappropriation = unfair competition for INS to appropriate AP’s info

Holmes: AP is the source of news + INS should be barred from using info for a period of time unless AP gives permission or AP gets credit 
Brandeis: INS’s actions were not wrong + institutional competence issue: legislature should decide law

B.	Cheney Brothers v. Doris Silk Corp. (p. 60)
Facts:	P makes silks + can’t get patents or copyrights because they are probably not all completely original and it is difficult to know which will sell well
		D copies one of P’s designs and undercut P’s price
Holding:  D won
-	INS DOES NOT APPLY BECAUSE INS COVER ONLY CASES LIKE INS
-	the court does not have the right to prohibit copying of goods  this would give P a monopoly
-	this is a task for the legislature  (institutional competence)

C.	Competition/Monopolies:
-	competition is good for the market  imitation/copying are important elements	
-	copyrights, patents, & trademarks have time limits (complete monopoly is bad)
-	they allow limited monopolies only for fear of limiting competition too much

D.	Smith v. Chanel (p. 63)
-	D won  competition is good  (INS is limited further)
-	weaker case than Cheney because purpose is to make comparable, not same products
-	the fact that the perfume was not patented weakened P’s claim
-	BUT D can’t free ride on Chanel No. 5’s reputation or other values attached to trademark

hypo: if D markets a product called Chanel No. 5 = D would be “free rider” on reputation of P or P’s product = violation

E.	NBA v. Motorola (1997) (not in book)
Facts:
-	Motorola developed pager that sold for $200 and reported NBA games in progress
-	D’s got news from TV or radio + inputted into their own computer
-	NBA said this was a news violation like in INS
Issues = “hot news claim,” time sensitivity, free-riding by Def, threat to P’s product + services 

Products at issue: 
1)	games  2) transmitting of live description  3) collecting and retransmitting of factual info about the game

Holding:  D won
-	pager did not threaten NBA games or TV/radio broadcasts
-	no free-riding because Motorola made the investment to secure the info and re-transmit it
-	court does not address the issue that the news was obtained from NBA broadcasts
-	warning that if NBA creates a pager and Motorola takes info from the NBA pager, this would potentially = some violation of rights
(congress gave copyright to simultaneous broadcasts in 1976 but did not address protection of news)

F.	Persona as Property (p. 64)
-	right to regulate exploitations of your persona (Midler, Vanna White)
-	“right to publicity” stems from right to privacy
-	developed due to expanded advertising, communication, media, technology, and interest in publicity

G.	Body as Property
-	Fed statute implicitly recognizes property rts in body parts  allows selling and giving except for transplants
-	right to transfer = right to include (giving or selling) + exclude

1.	Moore v. Regents of the University (p.. 66)
Facts:	P had medical procedures done for Leukemia
		bodily tissue was removed and used to create a patented cell line with significant economic value

P’s claims:  misappropriation of his property, conversion: wrongful exercise of ownership rights of personal property of another, no informed consent  (Moore wants to share in the exploitation of patent)
	
Holding:	D loses conversion claim and wins on disclosure issue
conversion issue: court does not want to extend conversion law to cover this case
institutional competence (majority + concurring opinions)  legislature should pass laws
disclosure issues: doctor must disclose research + economic uses before obtaining consent to med procedure
“capacity” – Moore and doctors are not on equal footing (doctor has more power)
disclosure requirement puts them more on the same footing  balancing effect
-	BUT discovery of violations in this area are very difficult to discover (you have to prove causal connection between injury + failure to disclose)
equity issues: unjust enrichment but court shows no desire to prevent the exploitation
doctrinal issues re: persona: genetic materials are not unique even though Moore’s cells were unique
bodily parts:  you can make a gift of bodily parts but you can’t sell them
policy issues:  negative implications on medical research because conversion is strict liability tort  could make a long chain of innocent parties liable  could hinder medical research

NOTE:  court could have cast the issues as being about personal autonomy and control over body

H.	Hecht Case
Facts:  children object to giving frozen sperm of their father to Hecht  (fear of heirs being born)
Probate ct ordered destruction of sperm
Appeal reversed holding that sperm is property + property belongs to Hecht
CA Supreme Ct. decertified the decision of the Appeal ct. because court did not want to address the issue

I.	Jacques v. Steenberg Homes (p. 86)
Facts: intentional trespass when D plowed through P’s field to deliver a mobile home
Holding:  Jury awarded $100,000 in punitive damages and $1 in nominal damages  ct sets aside punitives

Supreme Court:  protects right to exclude others from invading property
-	says punitives should be awarded particularly because trespass was intentional
-	policy issue: prevent “self help” tactics (we want people to seek resolution in court)

NOTE: insurance covers compensatory damages but not punitive damages

J.	State v. Shack (p. 87)
Facts: D entered P’s property to aid migrant farmworkers employed and housed there

Holding:  D won – D did not trespass under the statute and charitable groups can enter
-	property rights do not include right to bar access to Gov. services and migrant workers can get visitors
-	Property rights are not absolute
-	ct notes constitutional issues rejects them because no precedent + may force amendment of the constitution later
-	more flexibility will result from basing their holding in terms of property issues
NOTE: 1971 was peak period for supporting anti-poverty programs

IV.	Acquisition by Find

A.	Issues
1)	statutes – different in terms of specificity in every state (some don’t make distinctions in 2))
2)	distinction between abandoned, lost, and mislaid property
3)	whether you consider true owner’s rights and possibility + difficulty in locating true owner
4)	a lot of transactions like these are not litigated
5)	relationship of finder + location matters (Note 3)
-	re: employers/principals + agents the law is ambiguous, limited precedent
-	Jackson v. Steinberg– chambermaid had duty to give hotel $ found because it was “mislaid” 
5)   legislation to create a “lost and found” (Note 6) (difficult to make public aware of availability of services)

B.	Lost Property
1.	Armory v. Delamirie (p. 100)
Facts:  chimney sweep found jewel, takes jewel to jeweler, and jeweler’s apprentice takes the jewels
-	P seeks damages, not jewel (damages won will be paid by goldsmithrespondeat superior)
Holding: P won (has greater property rights than anyone other than rightful owner)
1)	first in time
2)	utilitarianism - you reward taking responsibility, putting/sending products back into the market
3)	public peace - stability is good + we don’t want physical actions to force change in possession
4)	finders rule/efficiency principal - more efficient to say holder was possessor, hard to prove ownership 

HYPO:  boy wins damages in Armory  but true owner appears and wants to sue goldsmith
to prevent double recovery issue  allow only replevin, subrogation, or goldsmith could sue the boy

2.	How do you measure damages?
-	you can award full value or real value: may take into account that the boy is not the true owner, or the probability that the true owner will appear difficult to calculate

C.	Stolen Property
1.	if the boy in Armory had stolen the jewel 
Anderson v. Gouldberg: 
Facts: 	P trespassed to steal timber from a 3rd party, but D then stole them from P
P sues to get the timber back from D
Holds:	P wins  P is prior possessor with greater rights than D (only true owner has greater rts than P)
NOTE: some courts say that a wrongdoer should not win

D.	Real Property (VA and Wis)
-	cts would rather give award of ejectment than damages to prior possessor of land, who has no title

E.	Mislaid Property
1.	McAvoy v. Medina (p. 110)
Facts: 	P found pocketbook of a 3rd party in D’s shop, left it there with D
P demanded pocketbook at a later point in time but D would not return money
Holding: D won  P + D acquired no property right to the pocketbook, because it was mislaid and not lost
- court says pocketbook found on ground (lost) and one placed on a table (mislaid)
- D has duty to keep pocketbook reasonably safe until owner comes to retrieve it

F.	Treasure Trove (113) 
= money hidden above or below ground
-	usually awarded to finder (historically king would get it if treasure + finder got it if abandoned)
-	some states treat treasure trove like mislaid property
V.	
Acquisition by Adverse Possession

General Requirements in most states in some form:
1)	actual entry giving exclusive possession (use like an average true owner + exclusive in eyes of neighbors)
2)	open and notorious 
3)	adverse (hostility) and under a claim of right (related to state of mind + claim of right)
4)	continuous for the statutory period
NOTE: AP have to pay taxes once they took actual title, it is difficult to say whether they owe back taxes

A.	3 views of State of Mind Requirement (p. 133)
1)state of mind irrelevant 2)thought I ownedgood faith trespass 3)intent to take, though not owneraggressive trespass

-	“hostility” can be assumed to exist if the other requirements have been met
-	Helmholz (134) says cts will regularly award title to a good faith trespasser and not to an intentional trespasser (Peschell thinks Helmholz is probably right)
-	Patterson v. Reigle (p. 134): aggressive trespassers were given title through AP because the AP was against everyone including the owner unless the owner came forth

B.	Reasons for AP 
1)	evidentiary issue + desire to quiet title
2)	utilitarian idea of rewarding the active party who improves + makes beneficial use of property (no waste)
3)	owner has been “sleeping on his rights” = absent owner (owner almost deserves to lose the property)
-	encourages owners to take care of their property and be aware of what is going on with it
4)	Ballantine (118): need for clarity and stability in property rights, recognizes positive + negative aspects 
5)	Holmes (119): psychological disassociation between true owner + property when too much time passes

Attitude of judiciary  some judges will view adverse possession = acquisition by theft

C.	Van Valkenburgh v.Lutz (p. 120)
Facts:  action for ejectment + damages because Lutz was using land bought by P
Holding: P won (decision was 4 to 3, split vote affects predictability)
1)	court downplays Lutz’s development of the property  said he did not improve land
2)	state of mind (125): Lutz said he was not on his own land  court says Lutz never made a claim of title
-	judges are divided about perception of court record + court dislikes adverse possessors
NOTE:  Lutz had already acquired title through AP, a disclaimer after the fact should be disregarded
-	real property has no notion of unilateral abandonment but you can abandon personal property

D.	After Lutz 
-	adversity/hostility is less important  you can infer hostility if other requirements are met
-	this reduces or at least does not encourage blatant hostility or actions that are truly hostile
-	the majority in Lutz does not do a good analysis  LUTZ CASE IS NOT GOOD LAW (generally)
-	Lutz has continuing significance in terms of its analysis of “improvement” and “cultivation”
-	Gray case cites Lutz to show that “casual” possession is not enough

E.	Ewing v. Burnet (p. 131)
-	ct found AP for periodical digging of sand and gravel, paying of taxes, actions against trespassers
-	AP can exist even if you don’t reside on property and do not use it for a long time

F.	Ray v. Beacon Hudson Mountain Corp. (p. 149)
-	court found AP because P occupied a cabin for 1 month a year, had utility services, maintained property, put up no trespassing signs, prosecuted trespassers

G.	Pettis v. Lozier
-	No AP  though land used for livestock, gardening, recreation, cars, placed fence + no trespass signs

H.	Cadillac Hypo (given in class)
Facts:woman receives a new Cadillac as a gift from male companion and there is a stash of heroin in Cadillac
police discover the stash and charges woman with possession, life sentence
male companion confesses that woman did not know about the heroin
Question: Can you have possession without knowledge?
VI.	Color of Title and Constructive AP

color of title = you are a possessor, you have evidence of title (ie a deed), but the evidence is defective/invalid
-	some states require color of title to take AP while others are just more lenient if you have color of title 
-	possession under color of title = constructive possession of land the document covers even if not occupied

A.	Problem 1 (p. 137)
-	O has possession of 100 acres and A gets 100 through invalid deed and A occupies 40 acres
-	A sues claiming constructive adverse possession of 100 acres 
Result: O gets 60 acres under first in time theory, but A gets 40 acres through AP

hypo -  P has paper title to 56 acres of land and built house, garage, and pool on 4 acres but stopped paying taxes
P eventually lost paper title but never moved out and never paid rent to new title owners
P can claim title of 4 acres through AP

B.	Mannillo v. Gorski (p. 138)
Facts: 	D added steps to house that encroach on P’s land by 15” – claims title by AP
	P claims that D’s possession was not hostile
Holding: D won
-	intentional hostility is not needed  assertion of your title = denial of the other person’s title
-	open + notorious requirement is satisfied only when owner has actual knowledge
-	BUT in cases where no there is no actual knowledge and undue hardship will result owner may have to convey property unless owner can show serious damage will result to remaining land
-	court doesn’t like Maine doctrine (says mere occupation is not enough, intent to claim title through AP is needed, and says that even though you are acting in good faith you can’t take possession)
-	limits AP to cases of true adversity and hostility and rewards hostility

C.	Tacking hypo
-	AP1 takes adverse possession of property for only 5 years THEN AP2 comes in and takes adverse possesion for 5 years
Question: Can you tack these 2 sets of 5 years of possession or does each AP have to fulfill statute of lim individually?
Answer:   American law - you can tack as long as there is privity of estate between the 2 APs
 		  English law – does not require privity

NOTE: you don’t refer to true owners in terms of tacking

1.	examples of privity of estate: 
1)	if AP1 sells property to AP2 privity exists between AP1 and AP2
2)	if AP1 dies and his will leaves land to AP2

D.	Squatters
-	payment of taxes may be an issue and open and notorious requirement may not be met because squatters try not to be openly seen usually, squatters have a tendency of being nomadic and may have difficulty meeting statute of limitation requirement, they have weak AP claims because they don’t meet requirement of continuity

E.	Improvements (p. 150)
-	common law: improvements simply pass to the true owner (BUT improver could try AP)
-	statute: depending on the statute, removal of the improvement may be allowed or compensation may have to be given for the improvements by the owner or land has to be sold to improver at market value

F.	Disability
-	if the true owner is disabled, this will extend the statute of limitations

G.	Government Property
-	government has immunity from AP

H.	Ancillary Doctrines for boundary disputes (p. 142)
these may substitute for AP (particularly in cases where an AP has to pay taxes)
1)	doctrine of agreed boundaries - oral contract is good if used for a long time
2)	doctrine of acquiescence - if acquiescence for a period (even if shorter than statute of lim)  evidence of contract
3)	doctrine of estoppel - if you remain silent in the face of a neighbor’s actions to create a particular boundary or if you act in a way to indicate a common boundary the person that ignores the boundary is estopped

VII.	Adverse Possession of Chattel

A.	General
-	the portability of chattel is a big issue and difficulty in attaining agreement on facts in these cases
-	many issues internationally because emerging countries are concerned with protecting their artifacts
-	if statute of lim is expired  bars recovery by owner + vests title in possessor

B.	O’Keefe v. Snyder (p. 153)
Facts:	paintings were stolen from O’Keefe so issue  when does statute of lim begin to run for AP 
Holding: remand but court decides the law the lower ct must apply
-	ct refines AP theory using discovery rule (open and notorious is hard to show with portable items)
-	due diligence involves notification of traditional agencies

Adverse Possession: statute of lim- begins to run when the open and notorious action has taken place
         burden of proof – AP has to show that he/she has complied with the requirements of AP

Discovery Rule: statute of limitations - begins to run when plaintiff has access to info to support a cause of action
  burden of proof - owner has burden of proving they took due diligence (this will toll statute of lim)
no due diligence = statute of lim begins to run from the moment the painting was stolen

NOTE: footnote 26: you can’t have a better title than the person transferring to you
	a person with voidable title can transfer good title to a bona fide purchaser

C.	Solomon R. Guggenheim Found v. Lubell (p. 165)

Facts:  	Lubell had possession of the gouache but Guggenheim was the true owner (had suspected theft by employee but did not report it) claimed that they thought     reporting the lost painting would send the painting “underground,” making it more difficult to recover and also might effect reputation of museum

Holding: rejects due diligence ‘cause difficult to define, ct favors true owners and requires “Demand and Refuse” 
-	once there’s a demand for the property and refusal to return it, the statute of lim begins to run
-	forces buyers to really check provenance of art they’re buying(burden on ownerencourages illicit activity)
-	refers vaguely to equitable doctrine of laches as remedy if the true owner does not act in good faith
-	ultimately Lubell paid part of the purchase price to Guggenheim and kept the painting

D.	Church of Cyprus v. Goldberg (p. 166)
-	D bought mosaics not knowing they were stolen  P won (P showed due diligence)
-	some possibility that officials helped to get mosaics out of  the country

E.	Statute of Limitations for Thief (p. 166)
-	in NY the statute of limitations begins running from the time of theft
-	this creates an inconsistency in the law  allows thief to have better rights than a bona fide purchaser
-	ct of appeals could not address this issue because it was not properly before the court

NOTE: even though statute of limitation is in favor of thief, the thief will be prosecuted upon discovery of his/her theft

F.	Repatriation Act  
-	museum’s with Native American objects must return to them unless they can prove a right of possession = consent from the individual or group that had control over alienability 

VIII.	Acquisition by Gift
-	testamentary transfers – property is transferred at time of death (must be through will)
-	a will is revocable until death and at death it is irrevocable
-	 “inter vivos gifts” = “during lifetime gifts”  2 requirements (maybe actually only 1 requirement - overlap)
1)	intention – addresses state of mind (subjective) (may be shown by oral evidence)
2)	delivery – evidentiary purpose (objective, ceremonial requirement) (requires objective act)
Possible 3rd requirement: 3) acceptance of gift by receiver = donee (see Gruen v. Gruen)

“I give you painting when I die” = will     v.        “I give you painting, reserving possession for life” – life estate and remainder

A.	Problems p. 169
1.	A finds O’s ring and O tells A over the phone to keep it as a gift  no gift because no delivery to A. But, this is a very literal reading of requirement. We probably don’t want to be this literal for the sake of efficiency

O gives ring to A + says “I want you to have it,” ring was too big so O wears it for A “until it can be adjusted” but O dies while wearing ring You could say oral communication + manual receipt/acceptance of ring = constructive delivery or this is a voluntary bailment with no intention to transfer title = revocable right of possession and it still belongs to a
Can O change her mind?  inter vivos gift = transfer of title = irrevocable gift (you can’t change your mind)
What if no telephone conversation and O gives A the ring?  this is pure manual delivery = ring is gift 
	
2.	O hands bank book to son + says $ in the account is yours, O dies before B can transfer $ or change name on account
-	there is probably a gift because there is sufficient ceremony (we need flexible definition of delivery) 
-	Peschell - authors try to differentiate between constructive and symbolic delivery, but these seem to overlap

3.	O is wearing watch + gives a written note saying watch is gift to A  not a valid gift because item could be physically or manually delivered very easily 
What if watch was somewhere else but writing is given instead?  manual delivery is preferred when possible

4.	Hocks v. Jeremiah - brother + sister are joint tenants to safe deposit box, brother puts bonds + rings in box with note saying they belong to sister  court only awards the bonds that were hand delivered to sister and not ones placed directly in the box (note is not a valid will because it is not executed in accordance to statutory rules about effective will)

HYPO: Facts:  couple owns a cockatoo and wife teaches singing but the singing irritates the bird couple gets 2nd couple to care for the bird but when 1st couple tries to get cockatoo back, 2nd couple claims bird was a gift
Holding: 1st couple gets bird back because 2nd couple was caretaker only and operating under voluntary bailment

B.	Personal Checks written and given before death (p. 170)
-	you are not allowed to cash a check of this nature because personal checks are revocable orders for bank to pay and because a person who writes a check can cancel it before it is cashed  
-	Peschell thinks this is debatable  might be better to institute a rt to revoke by executor but otherwise allow the check to be cashed (bank probably cashes these checks in real life because they don’t know about death of checkwriter) 

C.	Newman v. Bost (p. 170) HOW NOT TO MAKE A GIFT
Facts:  gift causa mortis – gift made in contemplation of and in expectation of approaching death
-	courts are careful to be strict due to laws about wills
-	decedent gave P keys before his death and said everything in house was P’s
-	P wants to collect money from insurance policy which was inside a bureau a key opened
Holding: P does not get insurance policy and only gets things that the keys actually open (constructive delivery because too heavy to manually deliver) limited to her bedroom which she was technically already in possession of
-	court says the insurance policy could have been manually delivered and should have been in order to constitute delivery
Issues:  whether decedent was aware or remembered that insurance policy was in bureau
-	when you give life insurance policy to someone you are actually transferring rights in the policy
-	technicalities are involved to make a transfer of rights that have to be filed with the insurance company in writing

D.	Spielman v. Pascal (p. 182)
Facts:  the writing was executed during lifetime of producer though there was no current production
=  allocation of future royalties
Holding: ct said this was valid as long as there was intention to grant title in the present for future possessions
   in fact, this was the only way to make such a transfer anyway

E.	Gruen v. Gruen (p. 178)
Facts: intention of father was to keep possession of the painting while making a gift of the painting 
	= present transfer of a future interest (accomplished through letters)

at the time of the letter, there were 2 owners of the picture:
1)	father has possessory interest (life estate)
2)	son has future interest + postponed possessory interest (remainder)

the transfer was not a part of father’s will because the gift was intentionally made during father’s lifetime
father’s letters have to be looked at together
Holding: court says this was an effective gift
-	considers intent, delivery, and acceptance (law presumes acceptance because gift was of value to donee)
-	court adopts flexible test of what constitutes delivery because traditional manual delivery would have been extremely impractical in cases like this
-	father is committed irrevocably

A.	2 definitions of “estate”: 
1)	reference to a kind of property interest recognized by our property system
2)	reference also to an entity that takes over legally after death that is comprised of assets of the decedent

“to A and his heirs”  “to A” = words of purchase 	and 	“and his heirs” = words of limitation
	- today “to A” will grant a fee simple

Overview of estate system:	fee simple absolute (largest interest you can get) and tenancy at will & license (smallest interest)

B.	Fee Simple = absolute ownership, can be conveyed during life and at death by will to heirs
-	interest that may endure forever and is inherited by whoever turns out to be the heirs of the fee simple owner 
-	you can’t place limitations on which heirs get it 
-	Johnson v. Whiton – you can’t say fee simple will only be limited to heirs on mother’s side
-	historically only applied to real property but has begun to be applied to personal property
-	Fee tail: defunct branch of estate system
		
NOTE: if you have a life estate it will necessarily terminate unless you determine what happens to future interest

A.	Life Estate - lasts for duration of life
-	if A has life estate and transfers A’s life estate to B, B has life estate only for the duration of A’s life
-	every life estate has a future interest must revert back to transferor or remainder to a transferee
-	to calculate value of life estate and remainder you need to know:
1) how much item is worth 2) life expectancy 3) interest rate
-	Problems with life estates:
1)	life tenant can’t sell unless all other interest holders agree
2)	bank will usually not lend $ on a life estate
3)	certain actions may constitute waste 

NOTE: you can draft instrument to allow these things 
in general life estates should be avoided because property is not stable in modern economy
trusts are better because they are flexible (you can sell, lease, etc.) because it is a fee simple

B.	Statutory Rules
modern statutes: statutes function as default rules = you only use them when no valid will
issue  if no issue, then parents  if no parents, then collateral (blood relatives who are not issue or parents (ie. brothers, sisters, uncle, etc.)  NOTE: if no heirs  escheats to the state

1.	Definitions
to dies intestate = to die without a valid will that disposes of all property
partial intestate = an incomplete will transfers only part of the property 
heirs = those blood relations who will take property of decedent
illegitimate child  you have to prove paternity before inheriting from father, the child can always inherit from mother
adopted children = issue
children = direct children of the decedent

2.	hypo - decedent dies without valid will
1) main potential heirs = issue  +  surviving spouse
issue = descendants (includes children, grandchildren, great grandchildren, etc.)
		you don’t care about spouses of the issue
2) if you don’t have issue or spouse, you consider parents as next potential heirs 
	(parents = ancestors)
3) if no parents, you consider grandparents (= collateral)
4) if no heirs  property goes to the state

C.	Problems with restraints alienation
1)	makes property unmarketable since it restricts use
2)	perpetuates concentration of wealth
3)	may discourage improvements on land
4)	may be difficult to get mortgage if moneylenders can’t get land after a default
5)	creditors can’t get property

1.	Different Possible types of restrains
1)	disabling restraint – withholds from grantee power to transfer
2)	forfeiture restraint – if grantee attempts to transfer his interest, it is forfeited to another person
3)	promissory restraint – grantee promises not to transfer his interest (contract remedies of injunction and damages)

2.	Restatement’s view on restraint
-	absolute restraint is void
-	partial restraint of fee simple is valid if restraint is reasonable in purpose, effect and duration
-	absolute disabling restraint on life estate is void but forfeiture restraint is valid

D.	White v. Brown (p. 210) (life estate)
Facts: this is a construction lawsuit = interpretation lawsuit you are trying to figure out intention of decedent
-	purpose is to quiet or settle the title but the will was only a partial will
-	holographic will = handwritten, no witnesses necessary (not allowed in many state, including NY)
-	the remainder has to be handled under the default rules
-	nephews + nieces are suing for this remainder
3 possible interpretations:
1)	life estate  heirs of Evelyn would get property
2)	fee simple absolute
3)	fee interest subject to condition subsequent

Holding:  it is a fee simple absolute
-	modern preference to assume, when in doubt, that the decedent wanted to give away maximum interest in property
-	the court opts to avoid transferring partial interests  pushes court to decide fee simple absolute
-	 “and her heirs” does not appear in will so court adopts modern rule that you don’t need this language
-	ignores the language “not to be sold” because you can’t have a fee simple absolute w/o alienability
-	public policy is against restraining alienation
-	this language may be void for vagueness anyway (Peschell)

Dissent: makes valid but very literal, interpretation of will (believes it was a life estate)

E.	Baker v. Weedon (p. 219)
Facts: Anna is life tenant of farm and farm’s value increases due to building of highway
-	Anna wants to sell farm so she can have money to live on
-	not a construction proceeding, no interpretation is needed the will looks like it was drafted by an attorney
-	will says Anna gets life estate + remainder to Anna’s children + alternatively to Anna’s grandchildren (grandchildren would get it only if Anna and her children die)
Holding: you have to consider issues of waste and interests of life tenant + remainderman
-	it is premature to order sale of property because of concern that if the sale is ordered, a good price won’t be obtained
-	p. 221 grandchildren did try to sell the property
-	ct urges parties to work together (ct is last resort), if no settlement can be reached, sale of part of land should happen 
-	suggests that grandchildren could provide Anna with $  this is not legally required

NOTE: this is not an example of externalities because while it is true that the life tenants’ actions can affect remainderman, the life tenant legally owes some obligations to remainderman, and externalities don’t deal with legal obligations

1.	Waste uses of property that fail to maximize property value
-	you have to consider interest of parties, remedy sought, and conduct in question
affirmative waste – arises from voluntary acts (liability results for acts that are injurious = cause substantial reduction in value of property)
permissive waste – arises from failure to act (question of negligence)

Melms v. Pabst Brewing – life tenant can make substantial alterations as long as value of remainderman’s interest is not diminished
Moore v. Philips – life tenant allowed farmhouse to deteriorate = remainderman sued and won
McIntyre v. Scarbrough – life tenant failure to pay taxes = waste

IX.	Examples

A.	Problem 1 p. 202

1.	1600’s view:
-	A has life estate, not a fee simple absolute  words of limitation used here do not create fee simple absolute
-	B also has a life estate failure to use the words “and his heirs” = life estate
-	A + B have successive life estates  if A + B both die the estate goes back to O through reversion
-	“forever” is not enough to convey a fee simple absolute

2.	1998 view
-	A would have a life estate
-	B has remainder = fee simple absolute

NOTE: by 19th century “and his heirs” was not required in writing
		- you could simply write “remainder to B”

B.	Problem 3 p. 202
creditors: 	B is an heir but B does not have any interest in the property
		if A wants to sell – B has no ability to stop A because B has no interest in property

1.	“A and her heirs” = words of limitation
-	does not necessarily allow B to have property interest at A’s death
-	the words tell us that a fee simple was created by O
-	they describe the scope of the fee simple absolute
-	at common law these words were mandatory to create a fee simple

2.	“to A” = words of purchase
-	does not mean A is purchaser  they define who is the transferee or grantee

NOTE: O can’t convey a fee simple absolute unless O had a fee simple absolute to begin with

C.	Problem 2 p. 204

O			A + B 	  ½ each
          /     \			A1   	  gets whatever is leftover after A’s death
        A      B-wife (W)		B’s ½	  gets divided into 3rds for B1, B2, and B3 (called “representation”)
       /         /   \     \		W	  gets nothing
    A1	   B1  B2  B3

NOTE: if B died after O, B could leave inheritance to whomever he wants in his will

D.	Problem 3 p. 204
-	you need to know if there are parents or collateral

E.	Problem 4 p. 204
-	goes to the state

X.	Defeasible Estate (p. 229)

fee simple absolute – cannot be divested 
defeasible fee simple – may last forever or may come to an end upon the happening of a certain event
         fee simple determinable – will end automatically when a state event happens 
future interest is usually possibility of reverter
identified by words with durational aspect = “so long as”  “while used for”  “until” 

         fee simple subject to condtion subsequent – may be divested at transferor’s election when a stated condition happens
					future interest is right of entry
				until entry is made, the fee simple continues 
	identified by words such as: “but if”   “provided however”  “on condition that” 
	
-	DFS = Defeasible Fee Simple
-	FSD = Fee Simple Determinate (some state don’t recognize this)
-	future interest  possibility of reverter = future interest goes back to grantor (p. 230)
-	FSCS = Fee simple to condition subsequent
-	future interest  right of entry or re-entry (could be called power determinate)

F.	Mahrenholz v. County Board (p. 231) (classification case)
Facts: 
1941:	Huttons conveyed 1½ acres to school for school purposes
	Jacqmain were given the remaining acres as well as remainder interest in 1½ acres 
1959:	Jacqmains gave Mahrenholz the remaining acres as well as remainder interest in 1½ acres given to school
1973:	school uses land for storage purposes
5/7/77:	Harry Hutton gives Mahrenholz all his interest in school land
9/6/77:	Harry Hutton gives interest in school property to school

Holding:  Property is FSD with possibility of reverter and 9/6/77 transfer is invalid
-	court had to consider that:
if FSD Harry could have a fee simple absolute
if FSCS Harry would have had to reclaim the title which he had not done

NOTE: if 1973 was not considered by court to be a crucial change in condition, then Harry would have had to inherit the future interest instead of getting a fee simple absolute through reverter

1.	Peschell’s suggestions/criticisms:
-	maybe the entire system needs to be simplified and pruned
1)	transferability rules are too old-fashioned
you should be able to transfer during your lifetime
2)	they should be combined into 1 category of fee simple
CA + KY are the only state to do this (p. 239)
3)	make greater use of contract remedies (i.e. the use of covenants)

2.	Note 2
has condition been violated?
-	depends on definition of “serve”
-	depends on statute of limitations

G.	Old Fellows v. Toscano (p. 240)
Facts: only Lodge can use it + limited transferability
Holding: court strikes down transferability limitation
-	resembles decision by majority in White which struck down the “no sale” restriction

	Dissent: if use is limited to original grantee (the Lodge)  = limiting transferability

	NOTE: there is a tug of war between desire to facilitate rights of grantor and right to alienability
XI.	
Future Interests
A.	Different Possible Future Interests
-	future interest = present property interest that may become possessory
-	interest depends on hierarchy of estates: fee simple > fee tail > life estate > leaseholds estates
-	life estate can end prior to the death of the life tenant (265)
-	owner of a vested or contingent remainder may transfer the remainder during life or the owner may transfer the remainder by will or intestacy if he dies during the life tenant’s life, unless the instrument creating the remainderman requires the remainderman to survive the life tenant	
-	the law prefers vested remainders + if an instrument is ambiguous, cts will construe it in favor of a vested remainder
“to A for life, then to B and her heirs”   B has legal rights + liabilities, B can sell or give away remainder, B can sue 3rd parties who are injuring land or trying to use AP, and if B dies during A’s life, B’s heirs get remainder

2.	Interests retained by transferor (not subject to Rule against Perpetuities ‘cause already vested)
1) Reversion - occurs when grantor has greater estate than grantee
   	    - vested in transferor + thought of as remnant of the estate that not transferred
2) Possibility of Reverter – arises when O carves out of his estate a determinable estate of same quantum
3) Right of Entry - when O transfers estate subject to condition subsequent and retains power to cut short or terminate the estate, the transferor has the right of entry

3.	Interests created in a transferee:
1)	vested remainder – given to an ascertained person + not subject to a condition subsequent 
(= ready to become possessory when all preceding estates expire)
a)	indefeasibly vested – remainder is certain of becoming possessory and can’t be divested
 “to A for life, then to B and her heirs” = “B has a vested remainder in fee simple absolute”
b)	vested subject to open or vested subject to partial divestment  = where remainder goes to a class of persons but later-born children are entitled to share in the gift  (= “to A for life, then to A’s children and their heirs”)
2)	contingent remainder – 
-	given to an unascertained person (= “to A for life, then to the heirs of B”
-	or contingent upon an event (subject to a condition precedent = “to A for life, then to B and her heirs if B survives A) 
3)	executory interest –divests or cuts short the preceding interest (= “to A for life, then to B and her heirs, but if B does not survive A, to C and his heirs”), treated like a contingent remainder or vested remainder depending on situation, fee simple subject to an executory limitation – created by Statute of Uses (any future interest from defeasible fee = executory interest)

NOTE:  if 1st future interest is contingent remainder in fee simple  2nd future interest will also be contingent remainder
if 1st future interest is vested remainder in fee simple  2nd future interest will be a divesting executory interest
-	“indefeasibility” = there are no further conditions, no termination is possible

4.	difference between vesting + contingent
1)	vested remainder is possessory as soon as preceding estate ends
2)	vested remainders have always been transferable during life as well as at death
at common law contingent remainders were not assignable and were unreachable by creditors 
today most states say contingent remainders are transferable during life + reachable by creditors
only some state still follow common law
3)	common law contingent remainders were destroyed if they did not vest upon termination of preceding life estate, whereas vested remainders were not destructible like this
4)	contingent remainders are subject to Rule against Perpetuities, while vested remainders are not
5)	in some states owners of contingent remainder may not have standing to sue for waste and other issues while a vested remainderman has standing (legislatures sometimes consider vested interests as more worthy of protection)

5.	policy issues 
-	dividing present and future interests is good
-	some countries only allow property w/o divisible interests

B.	Marriage Hypo
-	marriage between S1 + S2 (this is a second marriage for S1) and S1 wants to leave property to S2
-	S1 will leave a life estate in trust for S2
-	Benefit of divisible interest is that S1 can provide for children from prior marriage
 S1 gets to control disposition of property in the future
NOTE: you can also have substitutes (i.e. if children die, the property could then be left to grandchildren if you want)

II.	Reversion (p. 258)
A.	Problems p. 259
1.  O has fees simple and then
a. conveys “to A for life, then to B and her heirs”  no reversion to O because no gaps
      b. conveys “to A for life, then to B and the heirs of her body” fee tail reversion when fee tail runs out
c. conveys “to A for life, then to B and her heirs if B attains the age of 21 before A dies” (B is 15 at the time)                       
 if B dies before he’s 21 = reversion to O
 if B turns 21 before A dies = B gets ownership + no reversion occurs 
	
d. conveys “to A for 20 years”  land reverts to O

1.	O conveys “to A for life, then to B for life” but O dies with a will that gives all of O’s property to C.  Then, A and B die.    title goes to C

III.	Future Interests in Transferees (p. 260)

Example 3 (p. 262) – “to A for life, then to B and her heirs” 
-	B has indefeasibly vested remainder certain to become possessory upon termination of life estate
-	remainder takes effect when A dies
-	if B dies – B’s successors take control
-	B has interest in property that will be disposed of in his will
-	if no will, the state may get it if that is what is provided in statute
	 
Example 4 (p. 262) - “to A for life, then to A’s children and their heirs” (A has one child, B)
-	remainder is vested in B subject to open to let in later-born children
-	B’s exact share cannot be known until A dies
-	at time of A’s death, remainder becomes contingent
-	vesting – class can grow
-	you close class when you have to close it (i.e. physical impossibility of having children)
-	class closes when there are no more children
-	vested subject to open + subject to partial divestment
-	considers changing character of class

NOTE: child from frozen sperm is considered heir unless statute provides otherwise

Example 5 (262) – “to A for life, then to the heirs of B” B is alive
-	remainder is contingent because a living person does not have heirs
-	B’s heirs consist of persons who survive B and are designated intestate successors by statute
-	if B dies, it is indefeasibly vested

Example 6 (263) – “to A for life, then to B and her heirs if B survives A”
-	B’s remainder is subject to condition precedent  B can only take possession if B survives A
-	O has reversion if B does not survive A
-	this is not a good model of drafting because reversion could result as an operation of law

NOTE: reversions are not good from a transfer tax standpoint

Example 7 (263) – “to A for life, then to B and her heirs if B survives A and if B does not survive A to C and his heirs”
-	B’s and C’s remainders are subject to condition precedent of B surviving A or B not surviving A = alternative contingent remainders in B + C

Example 8 (264) – “to A for life, then to B and her heirs, but if B does not survive A to C and his heirs”
-	B has a vested remainder in fee simple subject to divestment
-	C has shifting executing interest which can become possessory only by divesting B’s remainder

NOTE: ex. 7 + 8 are classified differently even though they both provide for alternate contingent 
remainders 

B.	Problem 1 (263)
O conveys “to A for life, and in the event of A’s death to B and her heirs”
 B’s remainder is vested = indefeasibly vested remainder (no condition except to wait for A to die)
 O has a vested remainder?

C.	Problem 2
O conveys “to A and B for their joint lives, then to the survivor in fee simple”
 contingent because at time of conveyance we don’t know who is survivor
-	you can’t have vested interest when you don’t know who it will be conveyed to
 A + B have joint life estates
 this is kind of like Example 5

D.	Problem 3
O conveys “to A for life, then to B for life, then to C and her heirs”
 A has life estate
 B has life estate (successive)
 C has fee simple absolute

E.	Problem 4
O conveys “to A for life, then to A’s children who shall reach 21” A’s oldest child, B, is 17.
 remainder is contingent to B reaching 21
 if B subsequently reaches 21 B’s interest is vested but this is dependent on whether there are more children
 vested interest is not condition free

F.	pp. 264-265
-	whenever you have 2 or more contingent remainders in theory there is a reversion
-	to convey a fee simple all parties with future + present interests have to be consulted
-	a release should probably be regarded as a forfeiture  may create a reversion
-	if there is forfeiture of life estate in example 7  reversion to O
-	if there is forfeiture of life estate in example 8  vested remainder accelerates + B gets it but there is still the condition that B has to survive A

G.	Problem 1 (p. 265)
-	T conveys “to my son A for life, then to A’s children and their heirs”
-	at the time of T’s death, A has one child, B
-	2 years later C is born (this enlarges the class)
-	B dies, leaving husband, D, and child, E. (B’s will leaves property to D)
Answer: 	class does not close until A’s death
		C owns Blackacre
	B has vested interest that passes to his successors through will

H.	Problem 2 (p. 265)
T conveys “to my son A for life, then to A’s children and their heirs, and if any child dies in the lifetime of A, such child’s share shall go to his or her issue who survive A”  At T’s death, A has 2 children, B + C.  B dies, leaving a husband, D, and a child, E.  B’s will leaves all property to D.  C dies, leaving a wife, F, and no issue.  C’s will leaves all property to his wife, F.   G is born to A.  Then A dies, survived by D, E, F, and G.
-	G is an afterborn child who is added to the class
-	B’s share goes to E
-	C’s share – there are no issue (having an issue is a condition)
remains undivested + F gets it
-	E, F, and G own Blackacre

I.	Examples of Executory Interest from p. 272

          Example 14 (272) – “to A and his heirs, but if A dies without issue surviving him, to B and her heirs”
-	A has possessory fee simple subject to an executory limitation (or subject to divestment by B’s executory interest) = B’s future interest can become possessory by divesting A
-	there are historical reasons + not policy reasons for making it executory

NOTE: remainder + executory interest are very similar

Example 15 (272) – “to A for life, then to B and her heirs, but if B dies under the age of 21, to C and her heirs” B is age 15. 
-	B has vested reminader in fee simple subject to an executory limitation (or subject to divestment by C’s executory interest if B dies under age 21)
-	this is comparable to example 8 previously

Example 16 (273) – “to A and his heirs one year from now”
-	A is given a springing executory interest that will divest O’s fee simple one year from now

Example 17 (273) – “to Hartford School Board, its successors and assigns, but if the premises are not used for school purposes during the next 20 years, to B and her heirs”
-	the School has a fee simple subject to an executory interest that will automatically divest the School’s fee simple if the condition happens
-	show forfeiture provisions
-	adds time limitation

Example 18 (273) – “to Town Library Board so long as the premises are used for library purposes, then to Children’s Hospital”
-	Library has determinable fee
-	Hospital has an executory interest
NOTE: Hospital’s interest does not divest the determinable fee, which expires automatically
yet Statute of Uses says remainder cannot follow a vested fee simple
- courts resolve this conflict by calling the future interest an executory interest	

Problem 1 (p. 274) - “to A for life, then to A’s children and their heirs, but if at A’s death he is not survived by any children, then to B and her heirs” At the time of conveyance, A is alive and has no chidlren.
–	A has life estate
–	contingent remainder
–	this is like example 8
–	if 2 years later C + D are born to A  vested remainder subject to open
–	B has executory interest
–	no reversion because there is condition subsequent
–	if C dies . . . – half to C and half to D
		(NOTE: C’s estate gets the property)

“to A for life, then to such of A’s children as survive him, but if none of A’s children survives him, to B and her heirs”  At time of conveyance A is alive and has two children, C and D.
-	A gets life estate
-	condition precedent
-	C + D have contingent remainder subject to open
-	if C dies + then A dies  D takes the whole property
-	B’s interest is defeated because D survives

“to A for life, then to B and her heirs, but if A is survived at his death byany chidlren, then to such surviving children and their heirs”
-	B has vested remainder in fee simple
-	subject to executory interest		

Problem 2 (p. 274)
-	1(a)(b) + (c) only provide for instances where there are no children
-	Note 1(b) and 1(c) don’t reflect intent of grantor
-	there is a failure to provide a substitute for grandchildren if children don’t survive A
-	look at problem 2 (p. 265) [contemplation of such a problem]
-	“to A for life and to A’s issue”
-	“to A for life and remainder to A’s children”

Problem 3 (p. 274) – T devises $10,000 “to my cousin, Don Little, if and when he survives his wife”
-	executory interest (it is a “springing executory interest” = springs into existence when condition is met)
-	“10,000 to Don Little when and if he divorces his wife” = type of disposition that is void for public policy under common law (public policy does not favor divorce)
-	Rehnquist property deed discriminated by race  raises issues of constitutionality

IV.	The Trust

-	very flexible and considers both present + future interests 
-	this is a three party arrangement
-	fragments fee simple title into 2 components
-	Trust starts with an owner
-	owner can be settler, grantor, or trustor = creator of trust
-	trustee is legal owner for the fee simple 
-	manages property for benefit of beneficiaries
-	must keep personal accounts separate from trust
-	must dispose of income as specified in the trust instrument
-	personal liability to beneficiaries if trustee breaches fiduciary duty
-	trustee can be removed and another trustee appointed by the courts if not designated in instrument
-	it is advantage to have disinterested management of trust centralized in one person
-	Beneficiary has equitable interest (equitable owner)

-	civil law countries don’t use trusts (this is consistent with their rejection of dividing present + future interests)
-	trusts raise the issue of “dead hand control” (how far do you want to allow a dead person to control?)
-	trusts are used by wealthier people because high transaction costs incurred in creating + maintaining a trust
-	trusts can encourage spendthrift behavior

V.	Rule Against Perpetuities

A.	The 4 Rules
1)	Rule in Shelley’s Case – 	only exists in a few states
covers odd/unusual transactions
2)	Doctrine of Worthier Title – 	abolished by statute in many states
covers odd/unusual transactions
3)	Destructability of Contingent Remainder – 	may no longer exist because it is not used
no supported by public policy

4)	Rule Against Perpetuities
-	vesting must happen within 21 years after some life in being at the creation of interest
-	purpose is to allow property to go to people personally known by the person leaving property
-	the Rule was created to regulate gratuitous transfers of property particularly within families
-	used in virtually all states and is supplemented by a new act as well
-	purpose is to invalidate interests + create limits to encourage marketability
-	rule regulates use of contingent remainder and executory interests
-	technically every time you have contingent remainder + executory interest this rule should apply
-	vested interests are not under this rule because they are already vested 
-	validity is tested at time of conveyance 
-	when testing the validity of interest you need to look at external facts + terms
-	the validating life must be a person who can affect vesting of the interest

Example 24: “to A for life, then to A’s first child to reach 21”
-	A is the validating life, any child of A who reaches 21 will necessarily reach 21 before A dies
-	this remainder is valid under the Rule

can you use surviving spouse as validating life?
	- the Rule lets you search around for a life to validate your interest
unborn widow problem?

Example 25: “to A for life, then to A’s first child to reach 25” A has no child age 25 or older
-	there is no validating life  the contingent remainder is void = life estate in A and reversion in O
-	you cannot prove that A’s 1st child to reach 25 will do so within 21 years after A’s death
NOTE: most states would arbitrarily reduce age requirement to 21 yrs in order to save the disposition

Example 26: “to my grandchildren who reach 21” T leave 2 children and 3 grandchildren under 21
-	gift is valid
-	the validating lives are T’s two children
-	all the grandchildren will reach 21 years after the death of T’s children
-	remainder contingent interests in grandchildren can be problematic
-	you increase vulnerability of disposition to the Rule

Example 27: “to A for life, then to A’s children for their lives, then to B”
-	the reaminder to B is vested upon creation of this instrument

Example 28: “to the School Board so long as used for a school”
-	School has a fee simple determinable and O has a possibility of reverter exempt from the Rule

Example 29: “to the School Board, but if it ceases to use for school purposes, O has a right to re-enter”
-	School has a fee simple subject to condition subsequent
-	right of re-entry is exempt from Rule

Example 30: “to the School so long as used for a school, then to A and her heirs”
-	A’s executory interest violates the Rule because it will not necessarily vest within A’s lifetime or within 21 years after A’s death (“to A and her heirs” is void but rest of the instrument is valid)
-	if you do not include phrase “to A and her heirs”  fee simple determinable with possibility of reverter in O

Example 31:  “to the School, but if it ceases to use land for school purposes to A and her heirs”
-	School has a fee simple subject to a purported executory interest
-	A’s executory interest violates the Rule
-	leaving out “but if” clause leaves the School with a fee simple absolute

NOTE: example 30 + 31 are different

1.	Examples 17 +18 from p. 273
Example 17: why a time limit?  it is trying to fit under the Rule
how to you handle this under the Rule?
Example 18:  why is there no time limit?this is an exception to the Rule

look at Note 4 on p. 299  it will shift from one charity to another charity

B.	Problems p. 293
1.	“to A for life, then to B if B attains the age of 30” B is now 2 years old
-	B is the validating life (you can be the validating life for your own interest)
-	neither A nor O can be the validating life
-	contingent remainder, reversion to O 

2.	“to A for life, then to A’s children for their lives, then to B if B is then alive, and if B is not alive, to B’s heirs”
-	A’s children have remainder for life
-	is B’s remainder and remainder in B’s heir valid is a contingent remainder for both

3.	teacher declares that she holds in trust $1,000 “for all members of my present property class who are admitted to the bar”
-	validating life = the class

a gift to the “1st child of A who is admitted to the bar”  this is invalid
-	problem is that the 1st child of A to eventually die may be an afterborn child 

C.	Problem p. 294
how would you carry out O’s desires with 2 pieces of paper?
-	create a situation like example 29  give remainder in separate document (allowed only in states that are more liberal)
-	fee simple transfers to A directly  and A could give retransfer from A to school board while keeping reverter (problem is that A does not have legal obligation to follow along with this)

D.	Brown v. Independent Baptist Church of Woburn (295)

Facts: looks like example 30
-	church has a determinable fee (expires when church stops present religious belief and discontinues church)
-	there is implied possibility of reverter

Holding: land goes to legatees named in will other than the Church of Woburn
-	executory interest to legatees was void under Rule but reverter in residuary clause is not void
-	Woburn is not the traditional belief of the courts
-	Peschell does not agree with this – he says there is strong argument to give it to residuary
-	doctrinal problems with Woburnreverter in deed and possibiltiy of reverter retained by will are different
-	reverter by will is retained by testator but since the testator is dead, the testator’s heirs get reverter
-	Note 2: Leach’s criticism is more important – the land had an unmarketable title because it was tied up in so many different people
-	Examples 28, 29, 30, 31 all have the same underlying feature = a restriction 
-	Peschell says maybe English method of having statutory limit of time that possibility of reverter and right of entry can hang over property is good and maybe this is an area where we need to be tough because forfeiture has been allowed to hang over properties
-	NY made amendments in 1950: P has to show substantial interest in enforcement of forfeiture 

E.	Option
-	treated like a future interest, contingent upon exercise of the option
-	if an option can be exercised beyond the perpetuities period, it is generally held to be void
-	option to renew a lease or purchase the land have been exempt from Rule because they encourage improvement of the land
-	argument that options should not be subject to Rule because it is not relevant for the person giving option to personally know the person with right to use option

F.	Central Delaware
Facts: issue is what interest is created by deed which included restrictive covenant
-	we are worried about restraint on alienation as a result of option to re-purchase 
Holding:  option is not a vested interest and is subject to Rule = option to re-purchase in this case is void
-	this is like example 31
-	this case asks if the rule can be applied to commercial transactions  the answer is yes according to this court

NOTE: the new edition of the Rule does not include commercial transactions
yet most recent controversies in court involve commercial transactions

G.	Summary of deleted material in the remainder of the chapter
-	we have only really talked about common law rule
-	the last 50 yrs have shown that there is a lot of dissatisfaction with rigidity of the Rule
-	common law applied the Rule very literally
-	underlying interest in broader change
-	some jurisdictions use “wait and see” doctrine (p. 312)
-	you wait and see if vesting does occur in 21 yrs
-	broad reformation doctrine – rather than invalidating the disposition, you change terms until it fits
-	90 yrs (p. 313)
-	p. 315 – notice NY has not adopted USRAP
-	abolition of rule (p. 316)
-	increasing pressure to do this to attract business for banks in the area of trusts
-	Peschell doubts repeal will happen everywhere as evidenced by acceptance of USRAP

Chapter 5

I. Concurrent Interests

A.	General
-	successive co-ownership  present + future interest
-	concurrent = simultaneous interests
-	common law favored joint tenancy but today tenancy in common is favored
-	“to A and B jointly” may be too vague to create joint tenancy
-	communal ownership encourages inefficient use of common property resources also raise fairness considerations

B.	Tenancy by Entirety
-	can be created only in husband and wife and 4 unities apply 
-	surviving tenant has right of survivorship but H and W hold property as one person at common law
-	only a conveyance by both H and W can defeat right of survivorship
-	neither H nor W alone can get judicial partition
-	divorce destroys tenancy by entirety and former H and W become tenants in common (usually)
-	this exists in less than half the states

C.	Tenants in Common
-	separate but undivided interest in property (each tenant in common has an undivided share of the whole)
-	interest is descendible and may be conveyed by deed or will 
-	no survivorship rights
-	option to get judicial partition if agreement can’t be reached by all

hypo: if A + B have tenancy in common, if A conveys his interest to C, B and C are tenants in common, if B then dies intestate, B’s heir is a tenant in common with C 

1.	Problems p. 324
1.	O conveys Blackacre to A, B, and C as joint tenants:
“A conveys interest to D” – 	B+C still have joint tenancy
D, B and C have tenancy in common
	“B dies intestate” leaving H as heir - 	
- C has 2/3 interest and D has 1/3 and C and D have tenancy in common
		– B has to transfer during life because no transference through will

2.	‘to A and B for their joint lives, remainder to the survivor”
-	there is a lifelong co-tenancy
-	there is a joint life estate
-	there is tenancy in common  while both are alive 
-	remainder is contingent since we don’t know who will be survivor
-	(you only use the word “open” when referring to class gift)
-	A+B cannot sever the survivorship interest that was determined by T
-	neither A or B can sever unilaterally the other’s rights

3.	A and B are not married but buy house with title in “A and B as tenants by the entirety”
-	you can’t have tenancy by entirety by unmarried couple
-	NY enacted a statute presuming the creation of a joint tenancy when tenancy by entirety is not found
-	an added disadvantage of probate = no privacy since probate records are public documents

4.	Germaine v. Delaine – “jointly as tenants in common, with equal rights and interest in land, and to survivor thereof, in fee simple”  court held this is a joint tenancy because it provided for survivorship

D.	Joint Tenancy (common law)
-	right of survivorship exists
-	when one joint tenant dies, nothing passes to the surviving joint tenant = interest is extinguished
-	depends on 4 unities:
1)	time – interest of each joint tenant must be acquired or vest at the same time
2)	title – all joint tenants must acquire title by the same instrument or by a joint AP
- cannot arise from intestate succession or other act of law
3)	interest – all must have equal undivided shares and identical interests (joint Ts exist as a single owner)
4)	possession – each must have a right to possession of the whole
-	one joint tenant can give exclusive possession to the other joint tenants
-	this unity is the only one that applies to tenancy in common as well
-	if all 4 unities don’t exist, a tenancy in common is created instead
-	unequal shares are sometimes permitted if inequity is intentional + even considered for taxation purposes
-	if joint tenancy is created but one of the unities is later severed, the jt tenancy becomes tenancy in common
-	unilateral transfer before death by one joint T creates a tenancy in common for all
-	some state do not require all 4, and only require explicit statement that a joint tenancy is being created
-	option to get judicial partition if agreement can’t be reached by all
-	if A and B, joint tenants, die at the same time, one half goes to A and one half to B as if they survived
-	if A murders B, the murder severs the joint tenancy and converts it into a tenancy in common but killer loses right of survivorship in the decedent’s share

NOTE: main difference between joint tenancy and tenancy by entirety is that tenancy by entirety has
1)	no unilateral right to sever other person’s right
2)	marriage is needed

hypo:	O is the owner of a fee simple absolute
O wants to create a joint tenancy with A
O’s deed says O is grantor and O + A has right of survivorship

prior to Riddle you needed a strawman (i.e. O to X to OA)
			- NOTE: you need to be able to trust “X”

1.	General
-	the unities of time, title, and interest have no basis in policy
-	in cases today where unity of interest is unequal, court did not hold them illegal
-	at the time that Riddle was decided, CA passed statute saying direct transfer was possible
-	most policymakers agree with CA statute
NOTE: under common law there was no requirement to give notice before you sever rights

E.	Probate
-	probate = judicial supervision of the administration of a decedent’s property at decedent’s death
-	joint tenancies are popular particularly between husbands and wives because it is practical equivalent to a will since death of a joint tenant extinguishes only the decedent’s interest and leaves the interest of surviving joint tenants intact
-	also the joint tenants can avoid probate proceedings which are costly and may take a long time
-	creditors can’t reach interest of joint tenant after the joint tenant is dead since no interest exists then
-	federal estate taxation and some state tax laws do tax joint tenant’s interest at death

F.	Severance of Joint Tenancies
1.	Riddle v. Harmon (326)

Facts: Frances Riddle transferred interest in joint tenancy to herself for purpose of destroying joint tenancy
	usually joint tenant has to transfer to a 3rd party
Holding: ct recognized that there are no good policy reasons for a 2 step process
a.	Note 1 p. 331
-	statute requires recording or a document that has been notarized
-	wife wants entire interest in property
-	remember: when you give a gift you need intent and delivery
-	there is a delivery requirement with deeds but here the intent was to transfer to self

2.	Joint Tenancy in Financial Accounts
-	75% of the cases involve joint interest in bank accounts
-	bank accounts lead to much litigation because of uncertainty re:intentions court’s determination is needed
-	joint tenancy account – bank will pay all money on deposit to surviving joint tenant
-	convenience account – O gives A right to draw on account to pay O’s bills, but no survivorship rights to A
-	payable-on-death accounts – an account expressly giving survivorship rights (functions like a will)
-	not allowed in some jurisdictions because it is so much like a will
-	a bank card signed by O and A usually means O and A had right to withdraw all $ during their lifetime and so the balance goes to the survivor
a.	Problem 1 p. 339
O tells A “I want your name on this account so that in case I am sick you can go get $ for me”
-	it is a convenience account – convenient way to give 3rd party access	
-	at O’s death  with convenience account there is no right after O’s death for 3rd party
-	O intends to retain all ownership rights
-	these accounts are for facilitating use of agent (i.e. if O is disabled)
-	the court usually has to work with very little evidence of intent
-	could be dealt with if statutes set standards for how to interpret the state of an account
-	banks want to know what their rights are
-	we could have signature cards that state intent when you open bank account
-	problem  banks are uncooperative

O gives A right of access to O’s safe deposit box issue by adding A’s name to signature card and lease agreement with bank provides that the contents of the box are owned in joint tenancy:
-	the signature card does not determine what relationship O wanted after O’s death
-	agreement signed with the bank, providing that the account belongs to the survivor is not controlling
-	court held that A was not entitled to contents

G.	Problem 2 p. 339
H, W, and S open joint savings accounts filled with money from H’s salary.
-	court distinguished between W + S
-	court said this was convenience account with respect to S
-	W gets everything

H.	Problem 3 p. 339
A and B have a joint savings account of $40,000.  How much could A’s creditors reach?
-	you could argue that the creditor of one party can’t touch “the share” of the other party

I.	Partition
- if a voluntary agreement settling termination of property cannot be reached, equitable action of partition is used
- concern for fairness and equity

1.	Delfino
Facts: P wants partition by sale but D wants partition in-kind
Holding: orders partition in kind since property can be divided and interests of all owners will be served
-	partition in kind is prefered if possible
-	court must consider interests of all tenants in common and not just economic gain/loss of one tenant
-	a partition by sale would have forced def to surrender home and livelihood
-	you don’t need consent from all parties for partition through sale
-	partition by sale should only be used when 
1)	physical attributes of the land are such that a partition in kind is impracticable or inequitable
2)	the interests of the owners would better be promoted by a partition by sale
a.	Johnson v. Hendrickson  (346)
-	suit between 3 plaintiffs v. 3 def
-	key fact that distinguishes this from Delfino is that there are more owners
-	court orders partition by sale 
-	more owners = more likely to get partition by sale cause co-ownership is inefficient + hard to manage
b.	Gray v. Crotts (347)
-	1 of 4 cotenants wanted physical partition and wanted a specific partition
-	ct held that property be divided equally and lots drawn to determine which lot went to whom
c.	Note 4 p. 348
A and B are heirs of their father, who owned a rocking chair both A and B want.  A brings partition action 
-	you could use lottery
-	you could use time distribution
-	court ultimately decided to divide the time that each had with the chair
d.	Note 5 p. 348
A and B are tenants in common and have agreement to never bring partition action. A brings partition action.
-	court holds agreement invalid  agreement constitutes restraint on alienation 
-	problematic that there was no time limit on restriction about partition proceedings

J.	Sharing Benefits and Burdens of Co-ownership

1.	Spiller v. Mackereth (348)
Facts:  D + P are co-tenants in possession, Spiller began to use entire buidling w/o paying rent
-	IP T = In possession tenant  and  OP T = out of possession tenant
Trial: said OP T is entitled to rental value
Holding:  co-tenant may be in exclusive possession as long as no ouster occurred 
-	there is no AP issue here because Spiller conceded there was a co-tenancy
-	real assertion = before an occupying tenant is liable for rent, he must have denied co-tenants the right to enter
-	putting locks on building w/o evidence of intent to exclude other co-Ts = insufficient to prove liability for rent
-	encourages full use of property but encourages confrontation
-	downside of this rule is that there will be a lot of litigation re: what constitutes ouster
-	we want to avoid physical confrontation

CONSIDER: 	What relationship does Spiller have to Berg
		Spiller can present changing of locks as a safety issue

NOTE:  when you get rent from 3rd party  difference between this and determining rental value between co-tenants 
	- other jurisdictions say a co-T must pay rent if they have exclusive possession even if no ouster
a.	Perez v. Perez (352)
-	NY  co-T in exclusive possession is not adverse until passage of 10 years or actual ouster

b.	Ouster
1)	beginning of the running of the statute of limitations for AP
- whatever you do has to constitute denial of co-tenancy
2)	liability of an occupying tenant for rent to other co-tenants
c.	Adverse Possession by a co-tenant (352)
-	in co-tenant or co-ownership relationships difficult to get AP because difficult to prove hostility and open and notorious

K.	Fiduciary Duty
-	generally co-T are not fiduciaries = each co-T looks after his own interest
-	fiduciary duty is imposed when:
1)	one co-T buys in concurrently owned property at a mortage foreclosure or tax sale and then asserts superior title against co-Ts
2)	a claim of AP by co-T in exclusive possession
3)	often when co-Ts are blood relatives court will find familial trust and confidence requires that each act as a fiduciary with respect to each other

L.	Benefits + Costs

Benefits:  1) rents from 3rd parties 2) profits from business 3) co-T uses as residence

Costs: 1) taxes 2) mortgage 3) maintenance + repairs  4) improvements

Remedies: 1) partition action  2) action for accounting (based on equity)  3) action for contribution

rents + profits – must be shared with other co-T
-	based on actual receipt, not market value

taxes + mortage – should be shared proportionate to share (rt to contribution if unequal)

repairs – necessary repairs + improvements– the co-T that pays for thme has no right to contribution from others w/o an express contract because it is unclear if repair is justiifed or how much should be spent on it

-	a credit is given for repairs if given in accounting or partition action
-	not true for improvements
-	in partition – improvements go to improver if this does not create a great inequity for other co-T or extra $ is given to improver if land is sold (only based on value, not cost of improvements)

Chapter 9

VI.	Judicial Land Use Controls  Nuisance
A.	General
-	nuisance is difficult to define
-	deals with separate property owners, private land use
-	there are substantive issues and remedies

B.	Different Kinds of Nuisance
-	private nuisance – unreasonable interference with use and enjoyment of land
-	Spur  suggests # of private owners doesn’t matter
-	public nuisance – act that interferes with general community interest or comfort of public at large (i.e house of prostitution, air pollution, storing explosive, etc)
-	nuisance per se or at law – nuisance at all times under any circumstance, liability results regardless of reasonableness of conduct
-	nuisance in fact – something that becomes a nuisance based on circumstance
-	intentional nuisance – conduct that is done intentionally and person performing conduct knew or should know activity will be a nuisance (744)
-	unintentional nuisance – conduct performed where performer does not + should not know nuisance will be caused, determination is based on negligence, recklessness, and abnormal dangerousness

C.	Unreasonable
-	you have to conisder if 
1)	gravity outweighs utility 
2)	there is serious harm + financial compensation would not make continuing the activity feasible
3)	whether conduct interferes with public health, safety, peace, comfort, or convenience
4)	statutes
5)	whether effect is permanent or long-lasting
-	with Industrial Revolution – beginning of balancing of reasonableness + utility

D.	Hornbook Law
-	a def may be restrained from entering into an activity where it is highly probably that it will lead to harmful results – a nuisance – but not where the harmful results are merely uncertain or contingent

E.	Morgan v. Penn Oil (741)
Facts:  oil refinery was 1,000 feet from P’s land + emitted nauseating gases + odors 2-3 days/week
Issue:  is this a nuisance?
Holding: Remedies  injunction and damages are awarded
-	courts find private nuisance resulting from intentional and unreasonable invasion of P’s interest in the use and enjoyment of their land
-	an interference with use and enjoyment of land, in order to give rise to liability, must be substantial it must also be either intentional and unreasonable, or the unintentional result of negligent, reckless, or abnormally dangerous activity
-	balance test is suggested (749) – gravity v. utility (this is Restatement view, you have to consider location, burden to avoid harm, and social value)
-	court doesn’t tell us or analyze what, in this case, was unreasonable
-	the neighborhood was filled with mix of residential, commercial, and industrial activity
-	there is suggestion that it is curious that there aren’t more plaintiffs if problem is so bad
-	injunction cannot give relief for past need for relief
-	temporary damages – reflect past injury

F.	Jost v. Dairyland Power Corp
-	says consideration of balancing gravity v. utility doesn’t matter

G.	Coase
-	the test  avoid the more serious harm (747)
-	physical invasion  trespass (if intent is present this is treated like any other tort)
-	nuisance  no physical invasion (750)
-	alternative (1) and (2) – define “unreasonable”  as long as harm is serious and if it can be taken care of w/o putting you out of business recover is allowed

H.	Lateral and subjacent support
-	right to things needed or received under natural conditions, imposes duty on neighboring land

VII.	Nuisance + Trespass

A.	Martin v. Reynolds (751)
-	P said D poisened P’s cattle with fumes from D’s aluminum plant
-	ct said liability found based on trespass by invisible pieces of matter
-	ct conflates trespass + nuisance theories because they also consider reasonableness

B.	Wilson v. Interlake Steel (751)
-	excessive noise alone is not trespass because no physical invasion or physical damage
-	ct says intangible intrusions must be addressed by nuisance theory

VIII.	Remedies in Nuisance Cases

A.	Remedies
4 possible remedies:
1)	injunction – does not always ban activity, ct could order a specific act
-	theme of nuisance cases  even when you have legal finality, you anticipate bargaining after the trial
-	“injunctions are for sale” (in a sense) because there is bargaining
-	we allow parties to figure out how to solve the actual problem once liability is determined
2)	damages
3)	nothing
4)	injunction in return for P paying damages for removal

B.	Estancias v. Schultz (753)
Facts: air conditioner on adjacent property makes noisemakes conversation and sleep difficult/impossible
Holding: P is entitled to injunction  (damages?)
-	Peschell is puzzled by jury verdict
-	jury found that air conditioner operation was a continuous/permanent nuisance
-	the award of damages reflect discomfort caused to Schultz (different award to H +W)
-	BUT jury failed to conclude that air conditioner was proximate cause of damages
-	ct says that failure to find proximate cause does not preclude finding of remedy
-	maybe jury was skeptical re: proximate cause because wife had a hearing problem that was caused by other circumstances
-	jury wasn’t sure that if requested damages reflected a combination of the air conditioner and pre-existing events/injuries
-	necessity of having air condition is a consideration
-	ct may be less sympathetic to Def because apt. were not necessary to commhnity (no apt shortage or other public benefit)
-	from a strict economic sense finding the existence of a nuisance is wrong
-	jury was also influenced by sympathy for the elderly couple who had been living there for some time
-	jury may recognize the corporation has deep pockets
-	Def moved air conditioner to a place that may be bothering other people

NOTE: balancing of equities test is applied twice (purpose is to avoid greater harm or social cost + promote efficiency)
1)	to decide if there is a nuisance
2)	to decide what remedies to give

NOTE: some damages may be difficult to calculate
	# of parties matter (2 parties will bargain more)

C.	Problems 751

1.	Def operates halfway house for parolees + prisoners  property values declines in the area
you could consider social utility and if Def can pay damages
Arkansas  yes nuisance (this case also involved sexual assault which created a greater concern of risk)
CT – says no nuisance (attitude of this court reflects recognition that the activities are worthy activities but the activity could become a nuisance based on the quality of activity/management)

2.	Def operates amusement park near P’s drive-in theater
addresses issue of co-existence and uses of balancing test
no recovery/no nuisance because drive-ins had unusual sensitivity to amusement parks normal activity
(courts consistently consider the issues of unusual and sensitivity)
(First in time is not really considered)

3.	Def, out of spite, built fence that obstructs P’s view + reduces light to P’s home
fence built out of malice  nuisance

D.	Boomer v. Atlantic Cement Co (758)
this case has more plaintiffs than Estancias (this makes Estancias an easier case)
Facts: P claims dirt, smoke, vibrations from D’s cement plant injured property  clear air problem
-	what are options for treating this as nuisance problem
-	who is in better position to administer rulings re: clean air
-	an agency/Gov. could better regulate this
-	nuisance is a secondary toll to legislative action which would consider the general public’s interest as opposed to a single plaintiff’s interest
Holding: cement factory is a nuisance
-	you could say utility of Def’s activity weighs against finding nuisance
-	but his may be a nuisance because location of plant near a residential community is a nuisance
-	in real life there are a peculiar set of economic issues relating to the placement of a cement factory (i.e. stones, access to transportation, etc.)
-	cement plants have fewer choices about where they can put their factories
-	court announces new option for remedy 	
-	prior to this as long as damages were not trivial you are entitled to injunction despite disparity in cost to parties
-	this case introduces more flexibility in injunction process
-	court seems to think injunction is too severe
-	court seems to be “stacking the deck” against P
-	court says we will give injunction unless Def will pay permanent damages, payment will function as compensation for servitude imposed by continued exstence of plant
-	other option was that court could just grant injunction but delay effect of injunction in expectation that technological advances could deal with some problems created by cement plant
-	pure injunction in this case is not an appealing option because of difficulty in moving the factory
-	there is no legal finality in this case
-	there were several years of remand because permanent damages were awarded
-	there is an award of unconditional injunction  leads to bargaining to determine what actions will actually happen
-	court could say that if agreement is not reached by a certain date, then injunction will be fully applied
-	resembles extortion  give P tremendous leverage

Dissent:  says the effect is to have a continuing wrong
-	the decision eliminates the incentive to alleviate the wrong

NOTE: 	company should fear possibility of other members of community bringing suit
public nuisance case could be brought by city
	city didn’t in this case because city has an interest in tax revenue recovered from company

E.	Copart Indus. v. Con Ed (NY)(763)
-	same facts as Boomer 
-	ct found no nuisance
-	ct said no intent and no negligence was established
-	ct said in Boomer there was intent and unreasonable invasion

F.	Nuisance Law + the Environment
-	limitations of nuisance law as way to control
1)	expensive + cumbersome
2)	weak incentives to litigate by single P
3)	judges are not equipped to hear scientific issues or oversee long-term or technologically advanced remedies

-	other options
1)	legislation – easier to monitor, direct, more certain control
2)	incentive systems – i.e. charge fee for pollution

G.	Temporary v. Permanent Damages

temporary – reflects past harm
permanent – compensates for past + future injuries (precludes P and grantees from seeking any more recovery)
		
NOTE: 	injunctions are used for their coercive effect
a purchaser of the property thereafter won’t get damages
		suggestions have been made to give damages for 10yrs at a time w/ renewal option

H.	Problem 2
P live near toxic waste dump + have unsubstantiated fear of water pollution which actually affects property value
-	unfounded fear that results in damages  Michigan court says no recovery is allowed

NOTE: there is no definite evidence re: certain chemical contamination issues
	this is an imprecise area
	there is a tendency to locate disadvantageous in low-income areas

I.	Spur v. Del Webb (765)
Facts:  city developed closer to feed lot (a preexisting condition)  constitutes “coming to the nuisance”
Holding: the court issues injunction but plaintiff must pay damages to def for cost of removing/relocating because they came to the nuisance, operation of feed lot is a public and private nuisance to people near the lot
-	this decision is only applicable in cases with same facts
-	Def did not wrong but have to move because public interest of continued development + prosperity is more important

NOTE: Coming to Nuisance – may bar recovery or may simply be a relevant factor to consider + does not bar recovery

J.	Difference between Boomer and Spur
-	relocation is more difficult for cement factory since it needs access to certain resources
-	easier to relocate a feed lot

Chapter 10

A.	General
-	most common easement in gross is recreational
-	can be created by fraud, part performance, estaoppel, implication, or prescription
-	can have any duration (i.e. fee simple, life estate, term of years, etc.)
-	an easement is an interest in real property + must be in writing (Statute of Frauds issue)
-	there is an evidentiary requirement

servitude  easement 	 affirmative = right to enter or perform an act on servient land
		 negative = forbidding landowner from doing something on his land that might harm neighbor
	
   covenants 	 real covenants (law)
	           	 equitable servitudes (equity)

1.	Categories of Easements
1)	grant
2)	estoppel
3)	prescription
4)	implication (Van Sandt)
- pre-existing use
5)	strict necessity
- i.e. landlock (809)

B.	Willard v. 1st Church of Christ (783) 
Facts: re: problem of creation of easement
-	Deed 1 - McGuigan sold lot to Peterson w/ clause indicating an easement for church to use it for parking
-	Peterson sold lot to Willard without the easement clause
-	easements are permanent interest in property
-	notice has a role in binding successors  Willard received notice 
-	actual notice – he was told by Peterson
-	constructive notice - he could also see that lot was used for church’s parking
-	1st deed did include easement clause
-	Willard can’t avoid awareness of easement

Holding: 
-	“reservation” allows grantor to transfer property while revesting a new interest in him/herself
-	McGuigan could reserve easement for herself but not for a 3rd party (common law rule)
-	however, court says common law does not apply
-	McGuigan could have kept easement and let church use her easement or McGuigan could grant her easement to a 3rd party  constitutes 2 step process to get around common law
-	also the church could have granted interest to Willard
-	the easement does not mention a specific church
-	the easement is a defeasible fee simple
-	lot 20 = servient estate

NOTE: Problem with 3rd party interest in easements 
this fragmentation of property by recognizing non-possessory rts will burden the title over property 
distinction between the new and the pre-existing
the distinction between reservation and exception is only nominal
owner of servient estate will pay taxes alone unless deal is worked out with person who has easement

1.	Why would Willard buy a lot with an easement
-	Willard can still use the property for his own purposes
-	church only used the property on Sundays

-	appurtenant easement: benefits owner of easement in the use of owner’s land
-	dominant tenement: land that has appurtenant easement
-	easement in gross: benefits the owner of easement directly (has nothing to do with owner’s land)
-	some say this is not transferable (cts fear binding servient land more than originally intended)
-	Restatement says transferable if of a commerical character
-	modern cases consider intent of parties
-	recreational easements are not transferable
-	assignability of appurtenant easement 
-	in Willard  church can assign easement because church’s land and easement to part on lot 20 go together
-	intention of easement is to benefit church property

NOTE: some courts say purposes of an easement is to provide entrance and exit for people and vehicles
	installation of aboveground or underground utitlies (i.e. electrical lines or sewer pipes) are not permitted
-	also these things are not reasonably foreseeable
usually location of easement cannot be changed by servient owner without permission of dominant owner
Restatement (2d) (1994) – servient owner can change location of easement at his expense as long as it does not decrease utility, increase burden, or frustrate purpose

C.	Licenses
-	licenses are usually orally given
-	an easement is an interest in real property + must be in writing (Statute of Frauds issue)
-	there is an evidentiary requirement
-	revocable by licensor (easement is not revocable)
-	non-revocable license include license with an interest (i.e. ownership of chattel on licensor’s land) and license under estoppel rules (Restatement says this is triggered when investment is made (i.e. improvements)

1.	Holbrook v. Taylor (790)

Facts:   P used road with permission of D to haul supplies for construction of reisdence and for general access to P’s land, P also repaired roadway and there is no other place to build a roadway
Holding: easement is valid
-	equitable factors are considered by court
-	D gave actual consent or at least tacit approval to easement and P relied on easement  economic expenditure
-	this is an irrevocable license (like easement)

NOTE: to determine damages you can consider underlying issue of reliance
no easement by prescription in this case because use wasn’t adverse, continuous, or uninterrupted

2.	Sheppard v. Purvine
-	parties involved had been good friends  difficult to expect a written contract
-	oral license promptly acted upon is as valid, binding, and irrevocable as a deeded right

3.	Henry v. Dalton
-	an orally given license is revocable at option of licensor
-	better to have written document to ensure land is not burdened with oral contracts that are easily misunderstood
-	gives security and certainty to titles
-	the right sought by P in this case is easement that has to be in writing

4.	Van Sandt v. Royster (795)

Facts:  no express grant
-	P’s basement flooded with sewage because there was an underground lateral sewer drain
-	this is an underground easement
-	we are not dealing with original parties
-	issue is whether we will imply an easement
Holding: an easement may be implied out of necessity if property can’t be used without disproportionate effort and expense
-	balancing of equities plays a role – court conisders if easement is necessary for comfortable enjoyment of property
-	we may ultimately be adopting an economic test
-	notice is a requirement – P had notice and P inspected property and knew that drainage to sewage had to exist somewhere
-	the condition does not have to be visible to be apparent

D.	Easement by Necessity (809)
= implied when necessary to enjoyment of land and necessity arose when dominant parcel was severed from servient parcel
-	this is supported by public policy
-	disagreement regarding what constitutes necessity
-	lasts only as long as it is necessary
-	some states allow condemnations through judicial proceeding  $ is paid to person who gives easement
-	Gov. has power of eminent domain if easement is needed
-	in Van Sandt there was a pre-existing use which lead to easement implied by pre-existing use
-	this protects expectations of grantor and grantee
-	in hypo p. 809  no pre-existing road, leaving Lot 5 with no way out
-	there is almost a strict necessity
-	utilitarian consideration is that Lot 5 can’t be used unless passageway is allowed
-	implied + strict necessity easements are not explicit grants
-	easement is extinguished if all lots are owned by one person
-	to decide where easement is most ideally placed may be an issue of weighing economic factors
-	does it matter what the policy reasons are behind creating easement for determining any later, related issues i.e. damages?

1.	Payment for easement of necessity
-	obligation to pay will depend on underlying theory
-	i.e. if all tenants recognize someone is landlocked, then the landlocking could be characterized as a mistake
-	you can look at intent or public policy
-	in theory price for Lot 5 would have been higher when it was originally created 

intent:	if servient estate got $ selling Lot 5 we don’t want double recovery by making Lot 5 owner pay again
public policy: damages can compensate one who is being forced by law to pave a way for Lot 5 at his/her expense

NOTE: some statutes require payment  this is suggestive that there is some policy for this practice
look at condemnation (810)

E.	Easement by Prescription (810)
-	easement’s use must be consistent with general kind of use by which easement was created and the use that the servient owner might reasonably expect
-	obvious analogy to adverse possession
-	through AP you get title and possession, easements merely give right to use (lesser/lower interest)
-	this type of easement is also not as broad in scope as easement by grant, implication, or necessity
-	our statutory source for AP are more settled and clear
-	easement by prescription borrows concepts and statutes relating to AP in order to define itself
1) same statute of lim 2) notorious 3) continuous 4) adverse 5) under claim of right

1.	Lost Grant 
-	this assumes use from time immemorial
-	some courts still use this (confusing because it requires 1) use is not permissive + 2) acquiescence
-	jurisdictions that don’t use this – owners must interrupt or stop adverse use to prevent prescriptive easement
-	acquiescence may equal:
1)	failure to interrupt
2)	failure to do anything to get rid of AP
-	Dartnell v. Bidwell - sending letter is enough to interrupt because it shows no acquiescence
-	Peschell says this is not true generally
-	putting up a fence has not been enough to constitute interruption
-	most courts require you to prove exclusive possession BUT exclusivity has to be understood loosely because concurrent usage of easement is common, so courts generally define exclusive to mean “not dependent on a similar right in others”
-	summary proceedings are not available

2.	Compensation
Warsaw v. Chicago – court said legislature must decide this issue
-	regardless some of the judges said no compensationis prefered because this rule reduces litigation, promotes use over disuse, protects a long-time user to have better rights than meretricious claims to land

3.	Malouf v. Dallas
-	golf club is not liable in trespass because it was unintentional trespass since golfers did not intend to hit balls on adjacent property
-	Peschell thinks unintentional trespass should matter
-	with this result, how can Conrad Hilton regulate trespass by golfers
-	parties may begin to negotiate

4.	Holbrook
-	court noted that use of roadway was not easement by prescription

F.	Public Prescriptive Easement
-	can be achieved through long, continuous use by public under claim of right
-	general public has right of way
-	this could be done through formal dedication, some courts use implied dedication instead

example: 	Rockefeller Center blocks off road next to rink so that their private road doesn’t become public property

 |			|			|
 |     (Dry Sand)		|	(Wet Sand/	|
normal real property    	 | 		Beach Front     foreshore)	|	Water
			 |			|			|			|
			 |			|			|
    vegetation line  	 |	mean high	|	mean low	|
			 |	tide	         |	tide	      	|
				
-	dry sand is owned by private owners 
-	wet sand owned by state in public trust

1.	Matthew v. Bay Head
Facts: Beach Association controls dry sand through ownership of land and revocalbe leases from private owners of dry sand area
-	wet sand + area beyond mean low tide line are technically owned by state through public trust doctrine – requires state to act in best interest of the public
-	members of the clubs had access already – all residents of Bay Head were/could be members and non-members could not use beach before 5:30pm during the summer
Issues:
-	if general public has right to use wet sand area what are their rights in terms of the dry sand area?
-	it is almost necessary to have access to dry sand area in order to access wet sand
-	access + use (very broad notion including swimming, fishing, boating, lying out, etc.) are included 
Holding: public trust doctrine is expanded to include dry sand area (may be used for access and recreation) and Association membership must be open to public
-	without access the wet sand would be unusable
-	there was an issue that residents were trying to keep non-residents out
-	there way be some constitutional problem here

NOTE: if statute had allowed private land to be used for access and recreation  would constitute a taking
	public trust doctrine is more flexible than prescription
	some cases allowed access while others said dry sand can be used for recreation

1.	Note 1, p. 822
-	this note may be misleading - ?

G.	Scope of Easements

1.	Brown v. Voss (832)

Facts:  servient estate had granted easement that was appurtenant to parcel B
Issue:  is whether easement can extended to parcel C 
-	can you broaden the scope of the easement?
-	has Parcel B misused/abused right to easement by broadening use
Holding: court finds misuse of easement because easement was extended to non-dominant property
-	court decides that though there is technical abuse there were no damages
-	injunction was denied
-	what is the rationale for denying injunction when no abuse is found?
-	an injunction like this would be very difficult to enforce
-	this court is acting like a court of equity by balancing interest of parties
-	there is no real harm to owners of Parcel A
-	from a cost benefit analysis standpoint there is no cost to servient tenement
-	this is a discretionary determination
-	p. 834 item IX indicates that easement still needs to exist so that Parcel B can be reached
a.	Penn Bowling Rec Center
-	court granted injunction to part of a building that was on non-dominant land, said use by dominant tenement could be prohibited until building was altered so that non-dominant tenement can’t use the easement
b.	Note 2, p. 840
What if dominant tenement wants to subdivide into 100 tracts?
-	would not preclude subdividing the dominant tenement
-	BUT Peschell says some courts will be tough in this area because subdivisions and increased use of easement may lead to greater frequency in use that would go beyond expectations of parties
-	form an efficiency standpoint we expect some accommodation
-	Restatement (3d) (1994) says normal development will not effect easement (difficult to define “normal”)

NOTE: maybe a payment of damages should be given as compensation in return for use of easement (841)
damages are hard to estimate regardless

H.	Forms of Termination
1)	abandonment
2)	termination by “reverse prescription” (Note 3 p. 853)
3)	you could re-transfer easement in writing (Statute of frauds)
4)	oral statements combined with affirmative activity to re-transfer easement
5)	mutual agreement to terminate

1.	Abandonment
-	mere non-use does not equal abandonment
-	there has to be manifestation of intent to abandon in the form of affirmative activity that is further evidence of intention to abandon
-	court said there are limits to activity we expect
-	a licensing system for area covered by right of way easement was also considered

consider: in Brown v. Voss an injunction would have amounted to a termination because it would = shut down of easement and then re-negotiation would have been the only option to determine a new easement

2.	Presault v. US (842)
Facts: Rails-to-Trails Act allows you to abandon railway line and transfer railroad right-of-way to public or private group that will maintiain the trail
-	purpose of Act is to preserve trails for recreation or railroad use
-	railroad abandoned trail and never applied for abandonment order under the Act
-	railroad made agreement with the state of Vermont to allow use as public trail
-	P actually owns the land and claims taking by fed gov. and physical occupied by making it a public trail
Holding: if easement was not technically abandoned, use for recreation exceeds scope of easement and would = taking of new easement  landowner would be entitled to compensation
-	if easement was abandoned in 1975, use of land for public use is a taking
-	this case involves physical intrusion 
-	physical intrusion is evidence, manifestation, and almost per se support that there was a taking
-	railroad obtained easement from original owners for railroad purposes
-	court says original easement does not cover recreational use and recreational use was probably not anticipated by owner of land
-	just a railroad would only be an occasional disturbance but recreational = increase traffic a great deal
-	the original railroad company’s interest in the land may have been a fee simply in terms of parcel C
-	court says we shouldn’t infer fee simple when the railroad didn’t need anything more than an easement
-	if a fee simple was found P would not have a claim + Vermont would probably have title to the fee simple
-	a railroad has interest in many different pieces of land in order to have a railroad stretching for miles
-	if Vermont was found to be owner of land, no case would exist because Vermont wants a trail
-	federalism is also an issue because this is a direct action against US Gov.
-	consider what constitutes a taking of property
-	if this was taking through eminent domain this would require compensation
-	ICC was the regulatory agency that was said to have taken property
-	one could argue that P sued the wrong def.
-	the city and state wanted the trail
-	court refuses to acknowledge that just because state was instrumental does not make fed. Gov. not liable
-	maybe court was considering deeper pockets of US Gov.
-	you can have Gov. agency with broad regulatory power, but this does not preclude the fact that agency could be taking property
-	Peschell thinks this decision is defensible
-	you could also argue that maybe judges are too pro-property owner

NOTE: use of the words “right-of-way” usually = easement (can be indication of a fee simple in some cases)
consider: that after creation of the original easement whenever the purpose of easement changes the original compensation would not function as compensation for new uses
Restatement (3d) (1994) – 	“transportation by railroad” = rail transport
		“transportation or movement of people + goods” = could be used for hiking and biking

3.	Negative Easement
-	generally refered to and treated as equitable servitudes today 
-	right of dominant owner to stop servient owner from doing something on servient land
-	not favored because they encumber land and may be difficult to discover their existence – not as visible and difficult to make the subject of a grant
-	affirmative easements can’t be created in favor of a 3rd party but negative easements in the form of an equitable servitude can be 
-	American courts generally don’t recognize new negative easements outside traditional ones 
Peterson v. Friedman – court enforced easement to prevent obstruction of view of San Francisco Bay
-	one fundamental difference between English + American system because America has a recording system – a device that protects title against competing claims 
-	the recording system is not working as well as author suggests
-	maybe we should have only one category
-	from public policy standpoint negative easements are good
-	the broader goal is to maximize value of property
-	at stake is private land use control
-	covenants are good vehicles for supporting goal of rationalizing property in coherent fashion
-	equitable servitudes are not perfect but property owners + the general public benefit from them
a.	conservation easements
= property will be preserved in its present state
-	owner can give public body or private organization the land and prevent land from changing except as stated in the grant (benefit usually runs to the receiver)
-	statutes in most states say these are perpetual in duration, they are transferable, and can be in gross
b.	why can’t we resolve issues re: use of property through contract?
1)	contract rights are not assignable
so if A + B have contract then C has no rights
2)	BUT property rights are inevitably transferred to other parties when there is privity
3)	consider L/T relationship where leases that turn out to be unfair can be dealt with using contract rules
4)	modern contract law is much more flexible about assignability and assumption of burden

4.	Privity
-	horizontal privity is independent of parties (it is an artificial distinction but it does still matter for purposes of defining relationship = P/E between original covenanting parties
-	vertical privity requirement is usually easily satisfied because it is less artificial of a requirement and is more likely to survive any reforms in this area = P/E between one of the covenanting parties and a successor in interest
-	traditionally vertical privity is needed for covenant to run
-	American courts say P/E is not limited to L/T relationship
-	Restatement (1944) – 
-	burden runs = there must be mutual or sucessive relationship between promissor and promissee
-	benefit runs = no horizontal privity is needed

Spencer’s Case 
-	a covenant relating to something not in esse (i.e. to build a wall) will not bind assignee of covenantor unless covenantor expressly agrees to bind assigns
-	covenant in esse binds to assigns even if not expressly stated when there is evidence of such intent
-	to run with the land covenant has to touch and concern and there must be P/E

5.	Mutual Interest (860)
1)	if parties have an easement
2)	co-ownership

NOTE:  
-	contract can be entirely independent of grantor/grantee, easement, or joint ownership arrangement
-	this area is complicated because different views exist and some ideas are artificial
a.	Different Authorities in this Area
1)	English law  still valid (says only L/T can have P/E and P/E is required for burden to run to successors)
2)	mainstream/general American view (this is a vague concept)
-	there is no complete uniformity 
-	more liberal than English view
-	relies on older Restatement (862) (very vague, not very helpful) (887)
-	has horizontal privity requirement
-	requires that sucessor has an estate of some duration as promisor
-	benefit runs to a successor of any interest in the land and not just to a successor of the whole estate
3)	new Restatement
-	this is a temporary draft and is not finalized yet
-	it does not represent the law in most jurisdictions
-	it is a reformist + advanced and activist view of the law
-	abolished horizontal privity requirement
-	negative covenants are treated like easements for succession purposes  they run to all subsequent owners and possessors of the burdened and benefited property
-	affirmative covenants  burdens and benefits of such covenants run to persons who succeed to estates of the same duration as were held by the original parties to the covenant, that is, those person who satisfy the traditional privity requirements (burdens run to AP, lessees perform only covenants that are more reasonably performed by the lessee than the landlord, life tenants succeed to burdens but liability is limited to value of the life estate)

6.	Problem 1 p. 861
A and B are neighboring landowners who sign agreement to restrict their lots to single-family residential use
they expressly bind themselves and assigns.  later B sells her lot to C who builds an apartment house on the lot
-	P/K exists between A + B
-	the remedy you are trying to seek matters (see Tulk)
-	no horizontal privity because contract is not a source of horizontal privity 	
-	under old Restatement A can’t bring action for damages
-	under new Restatement you don’t need horizontal privity
-	consider Spencer’s case  looks at intent
-	C could be sued for damages

NOTE: any time you have to use 2 steps to accomplish something, there is something wrong

I.	Defeasible Fees as land-use control
-	remedy for breach = forfeiture
-	remedy for breach of servitude = damages, injunction, and enforcement of lien
-	infrequently used except as gift for charitable purposes
-	purchasers don’t want land with a forfeiture remedy
-	makes investment risk
-	makes land unmortgageable and unimprovable
-	can create right of enforcement in 3rd party or person who owns no land (891)

J.	Equitable Servitudes
= covenant re: use of the land (used to be promises enforced in equity, over time they’ve become interest in land)
-	damages = injunction or enforcement of a lien in equity
-	may be implied in equity
-	if it arises out of a promise, prescription does not apply
-	parties have to intend that the promise will run
-	covenant must touch and concern
-	horizontal privity does not matter in equity
-	vertical privity is unnecessary for burden to run
-	to show running of benefit  beneficiary has to prove he acquired title to land from covenantee
-	property notions apply – i.e. promisor loses all control over land once it is assigned
-	if gov. condemns burdened land, gov. must pay benefited owner damages for the loss of the servitude
-	contract principles may still apply because this property interest arises out of contract

K.	Real Covenants
-	developed Real Covenants = promise respecting use of land that runs with an estate in land at law 
-	damages = damages at law
-	runs not with the land, but with the estate in land
-	real covenant can be a negative promise or an affirmative promise 
-	it subjects the promisor to personal liability for damages, with a damage award collectible out of all the promisor’s assets
-	must be created by written instrument (grantee is bound by accepting the deed)
-	cannot arise by estoppel, implication, or prescription
-	requirements:
1)	grantor and grantee must intent that the covenant runs with the land
2)	covenant touches and concerns the land with which it runs
3)	P/E between the promisee or party claiming the benefit of the covenant and right to enforce it and the promisor or party who rests under the burden of the covenant

7.	Tulk
LANDMARK CASE IN AREA OF SERVITUDES
Facts: D wanted to alter garden even though D had notice of covenant:
1)	maintenance obligation (affirmative covenant)
2)	no putting of buildings on land (negative covenant)
- restriction on land development
3)	allow access to land by neighbor
Holding: when there is an equitable servitude attached to prop, purchaser who has notice of the servitude is bound by it (buyer can’t have better position than seller)
-	this case is concerned with negative easement
-	intention is a requirement
-	touching and concerning seems to also be a requirement even though court doesn’t explicitly say so
-	privity is no longer required = court is unconcerned with P/E = in equity cases horizontal privity requirement is dropped
-	some of the policy considerations for vertical privity are satisfied by touching and concerning requirement
-	this case imposes a new requirement  notice (this protects bona fide purchasers)

NOTE: Spencer’s case is silent about notice
	if you considered problem 1 p. 861 as an equity issue, A could enjoin C from building house

8.	Neponsit (873)
-	P was trying to foreclose lien to enforce covenant to pay $ (affirmative covenant) for the purpose of maintaining roads, sewers, beach, and other public purposes
-	better to see this as a real covenant case
-	item 3 p. 875 (doesn’t use terms “horizontal” + “vertical”)
-	not only did D acquire a lot, D also required right of way to enjoy property
Holding: covenant is a restrictive covenant which touches and concerns the def land, and there is P/E between P and D
-	court is connecting covenant to pay $ + property right to use property
-	grantee gets title to land and easement or right of common enjoyment of roads, beaches, and other public spaces
-	this case defines touch + concern in NY: affect legal relations of the parties to the covenant by imposing adavantages or burdens, you have to consider each case in terms of degree of affect
-	Neponsit is not surprising as a decision
-	Peschell says it was inevitable in a way
-	P is out of the chain of title
-	court doesn’t buy piercing of corporate veil argument 
-	court considers P to be an agent

NOTE: 	Neponsit has 25 year limit on covenant (there are transaction costs related to renewal)

9.	Touch and Concern
-	affect legal relations of the parties to the covenant by imposing adavantages or burdens, you have to consider each case in terms of degree of affect
-	negative covenants always touch and concern
-	most cases that don’t touch and concern involve money obligations
-	this requirement is criticized for being vague and unpredictable (may encourage use of other devices)
-	yet it may also encourage economic efficiency and prevent opportunism by successors

Davidson Bros (883) – enforceability depends on reasonableness, and not rigidly defining t + C

Eagle Enterprise (884) – deed said developer would supply water in return for a fee
-	successor to original buyer refused to pay because successor build well to get his own water
-	court did not enforce covenent because it no longer touched and concerend since sucessor no longer needed water and successor’s failure to pay did not threaten developer’s ability to provide water to others (covenant also did not have a time limit)

Streams Sports Club (882) – condo owner had to pay dues to sports club because covenant to pay dues touch and concern the land since condo owners had right to enjoy the sports facilities

Chesapeake Ranch Club – covenant to pay dues for social/recreational facilities did not run with the land because covenants did not necessarily increase value of individual lots since some buyers wouldn’t want to use the facilities anyway

10.	Affirmative Covenants
-	courts are reluctant to order series of acts needing judicial supervision
-	there may be personal liability if payment of $ or promise to maintain is required
-	may not have time limit
-	all the landowner’s assets are at risk when owner fails to perform
-	see Restatement (3d) re: modification or termination of certain affirmative covenants (885)

Oceanside Community Association (881) – 
-	developer covenanted to build golf course adjacent to residential development
-	court would not give injunction after golf course fell into disrepair because it is difficult to restore and supervise the golf course and it would be inequitalbe to hold defendant personally liable
-	court awarded damages instead of $9320/month to homeowners
-	limited def’s loss to amount invested in golf course

11.	Caullett v. Stanley (885)
-	real covenant = promise with respect to land that must affect use of the premises
-	grantor reserved right to construct the first house on premises
-	court did not uphold this (not much precedent to uphold it)
-	criticism is that clause was too vague
-	this case involves original contracting parties
-	P was trying to remove restriction to alienability of land caused by these covenants
-	this covenant gives personal benefit = covenant in gross the covenant is not appurtenant to any property
-	court holds that burden cannot run if benefits of covenant are in gross
-	court concedes that there is contrary authority
-	this personal arrangement has no effect on title
-	what is the danger of covenants in gross when benefits are personal?
-	difficult to determine who is liable
-	New Restatement says you can modify these covenants if you can’t find who is liable
-	is there any doubt about intention to make burden to flow with property
-	a clause was inserted
-	but this alone is not determinative
-	failure to meet other requirements  finding that there was no valid covenant

NOTE: 
England – burden will not run in equity if benefit is in gross
US – burden will run with easement in gross
covenants/servitude cases often involve issue of whether successors have some rights as original contractors)
Tulk case provides the standard to deal with equities

12.	Sanborne (868)
-	issue of creation
-	one of the features that is common to all of the lots is a negative easement (according to the court)
-	no lot owner will built anything other than residence
-	the lot at issue did not have any restrictions on it
-	owner wanted to build a gas station
-	court holds that there is an implied covenant + implied reciprocal obligation = owner can’t build gas station
-	court calls it a reciprocal negative easement
-	but is it easier to think of it as equitable servitude
-	reasons for implying a covenant:
1)	there was a sense that when original lot was subdivided there was a plan to hold all lots to this covenant
2)	court said there was notice
-	you should be on inquiry notice because by looking at neighborhood you could see that there was a plan for the area to make it residential  should make you inquire if there are covenants

NOTE: not all jurisdictions accept this case’s holding on statute of frauds grounds
	the problem raised in this case is not as likely to happen today due to better lawyering
	we won’t need to rely on implied covenants  + standard forms also help to avoid this situation

L.	Scope of Covenants

13.	Hill (891)
-	covenant – restricted purpose to single family dwellings
-	the nature of home  group home for AIDS patients
-	the court was willing to say this use was residential and valid under the restrictive covenant and the covenant violates the FHA
-	purpose was to create a normal family atmosphere
-	it was run by charitable organization
-	there were no corporate elements
-	there may have been employees but these employee promoted residential use
-	“family” = not more than 5 unrelated persons under zoning ordinance 
-	court uses zoning ordinance as point of reference to define family
-	court used zoning ordinance to help define “family”
-	there is policy argument to let AIDS patient live real lives, attain semblance of family life instead of being hospitalized
-	court refers to policy reflected in FHA of deinstitutionalizing the disabled and protect against discrimination against handicapped
-	P says “single family residence” is facially neutral + does not pick on handicapped
-	discriminatory impact exists – discriminate by denying housing to handicapped and disabled who need group homes to live in traditional neighborhoods/communities
-	enforcing covenant does not impose undue hardship or burden on neighbors and does not interfere with purpose of covenant
-	reasonable accommodation requirement is another consideration
-	if there is ambiguity it seems to support using less restrictive conclusion
-	any increased traffic is irrelevant since not mentioned in covenant 

NIMBY syndrome – not in my backyard

14.	Single-Family

Deep East TX Regional Mental Health (902) – upheld covenant preventing 6 mentally retarded people and 2 supervisors from living together – also found violation of FHA

Main Farms Homeowners Association – for-profit home to care for 4 elderly persons is not a single-family home

NOTE: FHA does not protect users or addicts, but does cover recovering addicts or those in rehab 

15.	902-907 deleted materials
-	Shelly v. Kraemer (1948)– holds that restrictive covenants with racial basis is unconstitutional
-	primary significance is what constitute state action that violates constitution

16.	Rick v. West (912)
-	P claims there was a change in circumstance of neighborhood so that covenant which limits use to single-family dwelling is no longer enforcealbe
-	reflects fairly typical reaction to this type of argument
-	court said no substantial change in neighborhood
-	court says it is not appropriate to balance equities when dealing with covenants
-	equities are considered with relation to nuisance 
1)	to determine if there is a nuisance
2)	to figure out remedies

-	Cardozo opinion has similar attitude
-	court also cautions developers from going too far

consider: damages introduce flexibility – may be better option than upholding covenant with injunction
	you need balancing test of interest of interior + exterior lots
	you could compensate interior lots if exterior lots are allowed to change
	MA – damages are the only remedy in certain case (914)

NOTE: Restatement (3d) re: modification and termination of servitudes because of changed conditions (913)

17.	Pocono Springs v. MacKenzie (916)
-	lot had affirmative covenant on it that prevented building of sewage system
-	owners tried to abandon because no development could be done on it
-	real property can’t be abandoned
-	court said you can’t simply abandon fee simple title
-	you can sell it, give it away, lost it through AP, and lose it through non-payment of taxes and selling through state
-	no abandon option in part because the law, from conceptual standpoint, does not want a “vacuum” = no owner 
-	but we could say land reverts to state
-	there is also a liability issue
-	we don’t want people to abandon to avoid liability
-	the court is anxious to have a bright line test so that other cases don’t have to be evaluated individually

NOTE: MacKenzies could give land to neighbors or homeless persons
	or negotiate with property association

M.	Condominium
-	no existence until 1960s
-	recognized for centuries in Europe
-	combines fee simply ownership of your private space = your condo with use of common space, you pay maintenance fee for common space and as insurance and separate mortgage for each condo
-	you get separate real property tax
-	includes unit tax + building tax
-	anything that concerns interior of house  private casualty insurance
-	question of what is the dividing point between units + common premises
-	is a common wall between units common premise or private
-	condominium has right of 1st refusal
-	sometimes vote is taken among owners to get 2/3 vote
-	people buying into these living situations may be compromising personal autonomy to live there

NOTE: desire for gated community stems from desire for safety (these communities may segregate by income)

1.	Note 4 p. 933
-	NY uses coop apt.
-	no common law notion to support this, so a legal foundation was created
-	building is owned by corporation
-	individual owners have a share in corp and are lessees
-	much tighter structure in the sense that coop members share risk + maintenance fees cover services, real property taxes 
-	coop fees do not include taxes
-	sale of units – difficult in a coop because you need approval by coop board
-	possible restraint on alienation (934)
-	FHA + Civ Rights laws apply to coops
-	preemptive option (934) – coop has right of 1st refusal
-	one general mortgage – makes financial stability depend on everyone
-	this give strong incentive to screen applicants carefully

NOTE: L has to be reasonable when giving sublets and assignments

2.	Nahrstedt (921)
Facts:
-	P sued to prevent homeowners association from enforcing restriction against keeping cats, dogs, and other animals
Holding: pet restriction is valid the restriction is not arbitrary, relates to health, sanitation, and noise concerns, P is not supported by public policy, court also considers reasonableness in reference to housing development as a whole
-	court refers to transactional cost of litigation (928)
-	Boomer court would not give conditional injunction because they thought parties would be back within a year
-	P claimed she didn’t have notice
-	court ignored this because agreement said restriction existed
-	court said she was negligent in not knowing restriction
-	success of condos depends on stability and predictability
-	statute re: condominium says there is presumption of validity but the presumption is subject to question
-	court’s standard- court will not uphold arbitrary, non-equitalbe policy that  violates public policy and imposes burden that far outweighs benefit
-	an individualized standard would not help anyone because it increases litigation and makes standard unclear
-	court expresses anti-majoritarian attitude

3.	Laguna (926)
-	a particular restriction was struck down because there was no rational reason to allow the restriction
-	condo was 2nd home to P’s
-	P’s entered arrangement to use condo as a timeshare
-	but condo had restriction that only one family could buy each condo
-	court said time-share was OK because there would be no increase in use since each family would be there one at a time

NOTE: attorney’s fees were assigned to P in MA case

-	Peschell says decision is heavy-handed 
-	NY Times surveyed restrictions in NY and found same restrictions were very detailed
-	some building restrict the kind of curtains you need to have or restrict use of a wok
-	real dangers even if we agree with Narhstedt

4.	Levandusky (932)
-	coop and condo boards should be given greatest possible deference and subject to “business judgment rule”  prohibits judicial action against actions taken in good faith by corporate directors
-	board can judge special needs
-	you don’t want to encourage litigation of every little complaint

5.	Riss v. Angel
-	board had power to disaprove designs, finish, or painting of any construction for any reason
-	court said this standard is enforceable but board’s decision was unreasonable in this particular case because board members and homeowners who ratified the board’s decision were jointly and severally liable for damages and legal fees

6.	Valenti v. Hopkins
-	restrictive covenant providing that architectural control committee will be sole judge of suitability are valid except where there is bad faith 

a.	New Restatement 
-	accepts Nahrstedt court’s approach
-	suggests that this area should be monitored
-	worries about violation of fundamental rights – property based concern with unreasonable interference with personal autonomy
-	gets rid of touch and concern requirement (gives different standards for invalidating servitude at its inception or after subsequent events) (884)

Chapter 11

IX.	Legislative Land-Use

A.	Zoning Generally
-	goals of zoning = protect single-family homes, desire for separation of uses, control of density, maintain low-rise developments, emphasis on health, light, air, aesthetics
-	City Beautiful- goal is to beautify cities with civic monuments and public works
-	Paris is product of a highly active national Gov.
-	zoning is a response to externalities – prevents property owners from using property to hinder anyone else
-	private negotiations are more difficult than zoning
-	zoning is a local regulation – regulation at municipality level
-	municipalities are empowered by enabling statutes passed by state 
-	federal role is mainly judicial
-	highest use = single-family residence
-	lowest use = worst kind of industry

-	nuisance law – does not prevent nuisance, it merely gives damages or injunction after the fact
-	makes investment in land tenuous
-	restrictive covenants work better when single owners are involved and not when apt. buildings are involved inurban areas
-	zoning passed to control nuisance-like conditions usually withstand challenges

B.	Arguments against zoning
-	may violate liberty or property without substantive due process 
-	may constitute taking of property in violation of 5th amendment if no compensation if given

C.	Need for flexibility
-	too strict rules would have likelihood of being unconstitutional
-	you have to consider  1) zoning ordinances purpose  2) procedure (administrative agencies)
-	variances are very flexible

D.	Euclid
LANDMARK CASE RE: ZONING

Facts:
-	P argues zoning was unconstitutional, emphasizing due process
-	classic taking of property case (like railroad case)
-	“police power” – description of Gov. regulatory power 
-	valid exercise of this power does not equal taking
-	P was attacking statute as being a per se violation
-	individual property owners could have argued about his own case instead of making a facial attack
-	he has to make a broader argument to make a facial attack
-	zoning characteristics:
-	3 use districts
-	3 height districts
-	4 area districts
-	rational for height limitation – desire for natural flow of sunlight
-	L.A. had height restriction due to earthquakes
-	area districts – controls density (major theme of zoning)
-	use districts – uses cumulative zoning in this case, each includes the use of the prior zone

P’s specific arguments:
1)	diminution in property value (industrial value  residential)
-	significant economic impact

2)	this will hinder “normal” development by trying to regulate it
- interferes with efficient use of property, particularly industrial development

3)	P says zoning laws cover offensive industrial uses but also restricts non-offensive industrial use
- the zoning laws are not precise

Holding: ordinance is valid and zoning in general is constitutional
-	even though the restrictions keeps out some reasonable uses, this is not enough reasons to invalidate
-	before an ordinance is unconstitutional, it must be clearly arbitrary and unreasonalbe and have no substantial relation to the public health, safety, morals, or general welfare
-	Sutherland believes apt. are parasites because they suck up light, increase traffic, etc.
-	institutional competence – S.Ct. give deference to legislative acts of municipality
-	court says impreciseness of the zoning law is not enough of a reason to overturn
-	courts says common law of nuisance justifies/acts as precedent for zoning
-	you limit property use for greater general benefit
-	court says that in another case the zoning law may be unconstitutional as applied in that case

NOTE: today pattern of zoning represented in case = Euclidean zoning

NOTE: in 19th century zoning law would have been struck down
	by 1926 courts are more comfortable with allowing regulation
	with increased technology  more regulation is needed

a.	What is the effect of this kind of zoning
1)	segregation of uses
-	segregation may be based on economic class
-	some cities don’t use cumulative zoning (houses and commerce don’t mix with industry)
-	it may even be better to segregate further so that residential and industrial uses are not mixed and inevitably lead to conflict (cumulative uses may be good and bad)
-	municipalities thought zoning laws would be permanent  but such laws need to be dynamic so as to change with the city and population
2)	bias toward residential uses
-	court views zoning laws as protecting residential property more
3)	it is comprehensive/detailed
-	this weakens P’s position that he was particularly effected by the law because a comprehensive law spreads the negative and positive effects among all the people

E.	Note 4 p. 960
-	Houston probably uses covenants and building codes since it does not use zoning ordinance
-	there could be problems trying to institute zoning laws at a later point

F.	PA Northwestern Distributors (965)

Facts:
-	P opened adult bookstore, the same month the township passed ordinance restricting location and operation of adult enterprises (includes amortization clause of 90 days)
-	re: pre-existing use that no longer conforms
-	Moon township had zoning laws and added a new provision/amendment
-	sometimes called “re-zoning”
-	it seems like re-zoning only applied to P in this case
-	shows possible use of zoning to prevent undesirable or unpopular uses
-	the basis proposition of the re-zoning is OK but retroactive application of zoning may = unconstitutional taking

Holding: amortization and discontinuance of lawful pre-existing non-conforming use = confiscation and violates PA constitution
-	if court allowed amortization of nonconforming use to be valid, any use could be amortized out of existence without compensation 
-	court says compensation has to be given
-	this bright line rule will help to avoid arbitrariness + confusion

1.	Amortization
-	is applied in mortgage area as well
-	it functions as a grace period to allow owner to recover his investment and not suffer the greatest loss
-	but 90 days may be too short to achieve purpose of amortization
-	you could argue that amortization was not drafted and enacted in good faith
-	consider that it may be almost impossible to develop a fair amortization clause
-	Dissent suggests these clauses may be very good if town wants to change character of neighborhood
-	you can rewrite the clauses to allow better notice and more time to change

X.	
Variances

A.	General
-	variance = allows exception for impermissible use (these run with the land)
-	exception = permissible use with permission (should be easier to get since permissible)

B.	Commons v. Westwood (976)
Facts: minimum frontage and area requirement was created to control density and uniformity
-	at the time of passing this requirement, a number of homes did not meet and still don’t meet requirement
-	P had not developed property before zoning was passed and wants to develop now
-	development seems to have been frozen due to these zoning laws
Holding: 
-	court is sick of hearing these kind of cases because they are so frequent
-	court considers issues re: health, safety, and purposes of zoning regulation
-	traditional purposes of zoning are light, air, etcproposed house would not affect these
-	court can consider if there will be undue hardship = no effective use of property if variance is denied
-	an owner cannot get variance just because a variance will allow the most profitable use of land
-	a grant of a variance must not impinge on public good and purpose of the zoning plan
-	if a variance was not given in this case, land would be unusable
-	zoning can be passed with purpose of regulating aesthetics (related to character of neighborhood)
-	a self-imposed problem will not be relieved in court
-	in this case the owner did try to fix the problem by getting another piece of land
-	the enabling statute requires the Board to support conclusions with facts
-	this Board did not provide enough reasons for rejecting request for variancedue process issue

NOTE: harder to get use variance than area variance

C.	Aronson v. Board of Appeals of Stoneham (983)
-	porch already extended too far and violates ordinance
-	owner cannot ask for a variance to further extend porch because existing violation can’t be made basis for further violations (also infirmity does not constitute hardship)

Crossley v. Town of Pelham – personal circumstances are irrelevant to determine existence of hardship

D.	Cope (984)
Facts: P wants special exception to build apartment building and sues because statute is void for vagueness since legislature did not give enough guidance to the Board
-	this is a constitutional = facial attack, raises separation of power issue, and due process issue
Holding: portions of ordinance are unconstitutional because it gives Board legislative authority
-	portions are found too vague/unconstitutionaldeterminations of whether the use “adversly affects health, safety, or general welfare of the public” and use “alters essential characteristics of surrounding property”
-	exception is granted because P’s exception was valid under all parts of the ordinance except those which are now unconstitutional
-	court does not suggest that we should not have discretion
-	court simply warns against too much discretion to the point where you have no guidelines
-	court is concerned with issues of size, price, level of traffic, safety, etc.

NOTE: in Commons the Board was vague, here the legislature is vague
	consider spot zoning

E.	Rockhill (989)
-	a town was zoned for agriculture and residences, the town authorized special uses if they were beneficial to the general development of the community
-	court said this is invalid because it doesn’t provide guidelines for discretion and heavy use of special exceptions is not really desirable and does not constitute guidelines

F.	Stoyanoff (1012)
Facts: P wants to build a house that is architecturally different
-	Ladue is a very wealthy community and houses are large and Colonial, French, Provincial + English 
-	standard of community is in statute (1013) – purpose may be to keep out a certain type of person
Issue: Can zoning include concerns for aesthetics
Holding: regulation is valid because not arbitrary or unreasonable since its purpose is general welfare of people in the entire community
-	ct focused mainly on property value  there is connection between aesthetics and economic value (difficult to prove)
-	the community wants to maintain the character and stability of the area
-	city of Ladue didn’t actually have the power to pass an ordinance to regulate aesthetics but court allows it because the ordinance is also related to general welfare of community
-	court may have been persuaded by fact that an architectural board reviews the potential plans
-	court does not address issue that architectural board may be bias

NOTE: difficult to defend aesthetics as the only standard because it is highly subjective and arbitrary
	courts have found it easier to defend zoning to protect historical sites
NOTE: in different case Ladue ordinance was struck down because it suppressed political opinions by preventing placement of a sign on property expressing such view

NOTE: nuisance law rarely applies simply to things that are ugly

G.	St. Louis Gunning Advertising v. City of St. Louis (1018)
-	billboards are illegal because they may provide hiding place for criminals
-	real objective was to get rid of billboards because they’re ugle

H.	Berman v. Parker
-	S.Ct. approved expanded definition of “public welfare”
-	says spiritual, physical, aesthetic, monetary, health, beauty, space, and cleanliness may be considerations at heart of legislature
-	later cases city Berman as supporting aesthetics as a legitimate police power goal

NOTE: 31 states have held or suggested that aesthetics can stand alone as justification for regulation
	architectural review boards have emerged elsewhere due to these cases

I.	United Artists v. PA Historical Commission (1019)
-	under PA law neither aesthetic nor conservation of property values can justify use of policy power
-	ct held that historical designation of property is an unconstitutional taking

J.	Controls on Housing Composition

1.	City of Edmond (1053)
-	group home for recovering alcoholics
-	FHA does not restrict # of occupants
-	the ordinance used “family” as standard without regard to number of people – covered by FHA
-	maximum occupancy restrictions cap # of occupants per dwelling usually in relation to floor space or number and type of rooms

XI.	
Eminent Domain and the Regulatory Taking

A.	General
-	gov. may not condemn for private purpose
-	you have to define “public use” in order to know how far police power stretches

B.	Midkiff (1106) unanimous decision
Facts: 
-	Hawaii condemns land and gives compensation, then Hawaii resells land to numerous new owners
-	land was concentrated in a small number of owners
-	gov takes land and transfers it to other owners
-	problemland goes from private owner to private owner (almost direct transfer)
-	Hawaii says public interest is to fix high concentration of ownership leads to better management of property and flexible real estate market will be good for competition to control price of property
-	state actions are evaluated under 14th amendment which uses standard of 5th amendment

Holding: Hawaii wins because this is not purely private purpose
-	Land Reform Act – addresses market failure = legitmate public purpose, so 5th and 14th amendment are not violated
-	to constitute public use, it’s not essential that the entire community or even a considerable portion directly enjoy
-	institutional competence issue – legislature is better able to assess what public purposes should be advanced by a taking
-	even if the ends are good the means should also be controlled
-	prior S.Ct. decisions left it up to legislature to control the means once the ends were approved

NOTE: public use  requirement is coterminous with police power – problematic concept because it suggests that you can choose between compensating and not compensating 

1.	Berman 
–	gov. sponsorship of condemnation to get rid of slums + providing housing is good

2.	Public Use – jurisdictions differ
-	broader view – advantage or benefit the public
-	narrower view – actual use or right to use by public
-	you could focus on what the “ends” (goals) are
-	you could say there was a pressing need (not just for convenience)
-	Epstein – provision of public goods (i.e. highways) open to public
-	Prof Merrill- you could enforce condemnation through power of eminent domain when transaction costs are high or burdensome
-	using eminent domain has transaction costs as well (this creates incentive to not use it as much)
-	i.e. legislative authorization, judicial proceedings, professional appraisal,e tc.)
-	condemnee only gets paid the fair market value
-	also you have to be concerned about who controls political power in any given legislature
-	all fed. cases since Berman have held that this was public use

3.	City of Oakland v. Oakland Raider (1120)
-	Oakland tried to keep the Oakland Raiders in Oakland through eminent domain
-	court said generally anything that promotes education, recreation, or pleasure of the public is a public purpose
-	you could use eminant domain over recreational facilities but not the team

C.	Poletown (1116)
Facts: Michigan planned to give substantial amount of property condemned from private owners to GM
Holding: project is valid because it provides public benefit because it decreases unemployment and revitalizes economic base of the community
-	seems that GM would be the only ones to benefit
-	and all evidence pointed toward conclusion that planning was controlled  by GM
-	“public use” is very ambiguous concept
-	public benefit has to be clear and significant, not speculative or marginal
Dissent: raised issue that here the transfer of property to private company was the purpose, it was not simply ancillary action 

NOTE: Hawaii case showed a lot of people would benefit

D.	In re City of Seattle (1119)
Facts: city wanted to condemn land to prevent city decay by building shopping center, public square, park, parking, and museum
-	court said project was no good if use is mix of private and public 
-	BUT once gov obtained land for private use and separate land for public use, this separation permitted court to approve of the land that was used for public use

E.	Loretto (1124)
Facts: CATV installed cable line that dropped down front of the building
-	NY law said landlord can’t interfere with installation of cable TV, can’t demand payment from tenant for it, or demand payment from CATV in excess of amount determined by state commission cable TV (Commission decided amount of $1 one time fee)
-	T has to pay for installation and damages from installation 
-	P sued for trespass and taking without just compensation (P wants injunction and damages)
Holding:
-	property rights = right to use, possess, and dispose of property
-	if there is permanent occupation – destroys these rights
-	owner can’t control property = extinguishes property value
-	when owner acquires property he has expectation of being able to use it
-	easy to see a permanent intrusion because it is a fixed structure – extent of occupation matters to determine compensation
-	physical intrusion as a measure of public use
-	state enacted statute – cable company has to be able to install cable 
-	direct gov. involvement (L cannot stop them)
-	w/o statute huge transaction costs would result between L and cable company
-	court institutes bright line test “permanent” physical occupation = taking  (affirms traditional rule)
-	you have to consider if intrusion is permanent or temporary – taking is always found when intrusion is permanent
-	this may be a test of how long it will be there (time)
-	but just because an intrusion is temporary, it may be continuous.
-	NOTE: permanence cable is not exactly permanent because you could end service
-	Decision is very problematic and generally disapproved
-	BLACKMUN (dissent) concerned about cost to property owner  by public use because here the interference to owner was minimal
-	also compensation to owner is minimal or preferable rule would be balancing of factors including permanence 
-	NY statute-determined a fee of $1 but did contemplate other small damages.
-	Hawaii case implements broad definition w/out standards or limitations
-	Loretto seems to leave too strong of a test.

F.	Penn Coal v. Mahon (960)
THIS CASE INTRODUCES DIMINUTION IN VALUE TEST
Facts: Kohler Act says you can’t mine coal if it will cause subsidence of things other than surface you own
-	deed conveyed surface to D BUT right to remove subsurface coal is reserved by Coal company
Holding-says coal has no value ‘til you extract
-	right to coal = right to mine
-	says only person adversely effected is Plaintiff.
-	gov. regulation can constitute a taking if it goes “too far” vague
-	Act is not valid if right to mine cola has been reserved, a private person who takes risk of only obtaining surface rights must deal with the danger if a different person mines the coal
-	court says this legislation is almost private legislation because purpose is not public
-	(1150)-requirements of safety for employees in mines justifies the law in Plymouth which required leaving a pillar of coal in case rest of mine that is on adjacent property fills with water
Brandeis Dissent-
-	considers what is noxious (1152)
-	considers statute as covering issues broadly
-	accepts diminution in value test
-	includes diminution of value to surface & sub-surface
-	problematic view because P owns surface
-	the record does not show what portion of coal can’t be removed
Hadecheck-(1140) analyzes validity of regulation based on whether it is controlling a nuisance.

NOTE: 3 tests  	1) permanent physical occupation = taking 
2) nuisance-control measures are not takings  
3) “too far” – PA Coal

Note:  Coal company had practice of compensating owners for subsidence due to mining (1156)
-	may have been done for public relations reasons
-	may not have compensated enough.
-	Legislature may have been concerned about unequal bargaining power when it passed the statuteelements of justice

NOTE: 2 coals-1) coal to mine  and   2)coal to support
- oil + margerinedairy farmers were opposed to margarine devlopers

G.	Keystone
-	new PA statute says mine operators have to leave 50% of the coal in place and pay damages for subsidence even if owner waived their rights -preamble now has declaration that statute was for public safety + benefit.
-	distinguished from Penn.
-	Ct. believes the intrusion is minor
-	here we have evidence to determine what the denominator is after using diminution of value test (in Penn we didn’t have exact numbers.) – compare value taken from property and value remaining in property

NOTE: PA Coal is still a landmark case but Keystone is more recent.

H.	Penn Central (1159)
-	re: landmark designation
Facts: NY made Grand Central Terminal a landmark
-	Penn Central presented 2 plans to add to Grand Central – both were rejected by Commission so Penn Central sued with claim that their air rights were taken and so they are owed compensation at fair market value of air rights 
-	being a landmark does not limit all rights BUT it is very heavily regulated
-	Breuer II-worse than Bruer I 
Holding: law is valid
-	court says it is not clear if a more reasonable proposal would be acepted
-	this seems to be a facial attack & are also concerned with how statute applies to them
-	court considers economic impact and finds no physical intrusion
-	Court considers that original use as railroad is not hindered
-	Court considers transferable development rights to be valuable and functioning to mitigate financial burdens imposed by limits in this case allow you to build higher buildings somwehere else relax restriction to air rights
-	Broad Denominatorentire property & other property around in same area
-	small diminution in value

Rehnquist-makes denominator smaller because he bases it only on air rights
-	finds HUGE diminution in value
-	the decreases are hard to sight as matters of general principal because they are specific to the case 

Landmark law-wide variety of buildings are made landmarks
-	building owners don’t like this designation because of the restraints it would impose
-	a PA decision struck down a landmark statute as unconstitutional
-	effect of eminent domain on servitudes. 
-	superceded by gov. 
-	because servitudes are interest in land, when eminent domain takes place gov. and person with servitude share in condemnation

I.	1987 and beyond (1180)
-	CA coastal commission – modern administrative agency 
-	have broad comprehensive authority through legislative action
-	ability to manage land use in great detail

J.	Exactions
-	exaction = developers provide goods and services or pay fees in exchange for getting approval of their project (Gov. can also uses taxes to control), exactions worked because gov. would pass more stringent restrictions and then later relax them in exchange for services 
-	impact fees – you exact money, not goods

K.	Nollan (1181)
Facts:
-	commission wants public easement to provide access to beach in exchange for right to build bungalow 
Holding: gov has to pay if it wants an easement
-	permit condition has to serve the same purpose as the development ban
-	ct finds that permit condition is not appropriate exercise of land-use power because being able to walk across Nollan’s  property does not increase view of beach, lower pscyhological barrier to beach, or remedy any congestion created by building house
-	if commission only took easement without granting permit for bungalow = taking
-	Commission claimed they were protecting public right to beach  if P’s house would affect public right to beach, then Commission could deny permit to build BUT if P’s house does not affect this, refusal of permit = taking
-	land-use regulation that substantially advance legitimate state interest and does not deny an owner’s economically viable use is not a taking
-	you need some nexus between an exaction and the regulation excepted in exchange for it
-	in the end there is no nexus between easement and permit and the public purposes
-	Scalia even suggests that a viewing stand should be set up
-	refers to also as unconstitutional condition = when there is no nexus and no public policies
-	refer to Matthews (815)

NOTE: NJ had public trust doctrine – was judicially created  + functions to give notice

L.	Dolan (1186)
Facts:
-	exaction in connection with permit
-	P wants to expand her commerical use but  Gov wants to exchange this right with dedicating portion of property for traffice purposes (walkway and bikepath) as well as flood control measures
Holding: gov. cannot have easement without compensating P
-	here court wants to design a test for determining required nexus because Nolan left this unclear
-	court says there must be a “rough proportionality” between the thing exacted and the development permitted in exchange
-	P was not given special benefits or increase burden created by her new store
-	even though paving P’s land will increase the amount of land that is impervious and will increase flooding problems and separate/new path is a legitimate way to deal with traffic concerns ct says that a strong public desire to improve the public condition is not enough reason to use private land w/o compensation
-	Def had to show that the things Gov. wanted to require from P will, or is likely to, offset some of the flooding and traffic problems, if it only “could” offset the problem, this is not enough nexus

M.	Overview of Nolan and Dolan
-	are these cases significant?
-	we seem to be moving toward tougher standard
-	no more deference to Gov agency
-	attitude favors property owner 
-	exactions had been used Gov agencies  maybe this was getting out of hand
-	physical intrusion in both cases
-	S.Ct. is deeply divided
-	Nolan – wants nexus between exaction and the excepted regulation
-	Dolan – wants nexus between the exaction and the development permitted

NOTE: Nolan dealt with exaction, city had a statute, and majority of court thought there was no nexus
	and private owner was a holdout, other owners had cooperated
	these holdings may create greater limitation on deals between gov and developer

N.	Lucas v. SC Coastal Council (1198)
Facts: Owner got land to build single-family houses, later a law was passed that barred buidling any permanent habitable structures on his lots of land
-	P said they lost complete value of land because it became useless due to this law
1)	a land management act existed that didn’t apply, but new act prohibited Lucas’s use retroactively 
-	failure to develop before new ordinance was passed
      2) Lucas’s lot was only one of the only lots that had not been developed
Holding:
-	Scalia looks at line of authority that allows gov. action without characerizing as taking if there was a nuisance
-	courts have generally required compensation for physical intrusion 
-	court says that there is taking when all economically beneficial or productive use of land is denied because this is equivalent to physical intrusion
-	court creates almost a per se testcomplete deprivation of economic value = taking
-	BUT if there is a nuisance under common law  not a taking
-	to show a total taking:
1)	Gov. must identify property and nuisance law that prohibit the use at issue
2)	degree of harm to public lands and resources or adjacent private property
3)	social value of the claimants activites and their suitability to locality in question
4)	relative ease with which the alleged harm can be avoided through measures taken by the claimant, the gov, or adjacent owners
5)	whether particular use was allowed at common law and whether circumstances have changed so that use is not permissible now (also whether other owners are allowed to use the land in the manner at issue) 

NOTE: Peschell thinks Lucas is unreliable for precedent, no predictability in the law
-	nuisance exception is not very helpful since it refers to common law standard which does not share modern environmental concerns

NOTE: look at cluster zones  and subdivision controls (1010-1011)

O.	1st Evangelical v. County of LA (1168)
Facts: in response to flooding, Def passed Interim Ordinance that said Pcould not build any sturcutres on their land, P claims this denies P all use of this land
Issue: is just compensation due when gov. engages in temporary regulatory takings
Holding: Gov has to pay temporary damages for period in which gov. action amounted to a taking
-	burden on Gov.  could use eminent domain power or modify regulation to make it valid police power or abandon the regulation
-	before this case Gov. could abandon regulation without costs
-	many believe this case favors private property owners 
-	sense of equity since some of the governments that were involved suggested temporary damages as relief

Dissent: this decision will increase litigation, issue of whether length of temporary taking will matter maybe the remedy should be on state level regarding the legislation rather than a constitutional challenge, this might discourage enactment of new regulations or amendment to old ones for fear of litigation

P.	Mount Laurel
-	most important zoning case since Euclid (this may not be true)
-	this case addresses portential for change
-	raises issue of Civil Rights but this is not central issue because there were other forms of discrimination at issue
-	heavier burden to prove that race alone was the issue
-	concession that no intent in regulating scheme to discriminate (1062)
Facts: single family, middle to upper class homes but not much multi-family or low-income housing
-	required lot area and frontage for low density zoning
-	encourages increased cost of buying and improving the land
-	regulatory scheme has no intent to be racist or prejudicial 
-	small amount of industrial use need and for low to middle income housing
-	PUDS were repealed
-	no other means of transportation than trucks or cars
-	municple basis for zoning  there is some state regulation but there is not state-wide zoning
-	each municipality looks at their own interest and not the bigger picture (1068)
-	part of the reason is to keep property taxes down (taxes are higher if you have to subsidize lower-cost housing)
-	responding to this problem entails regional planning 
Holding: zoning ordinance is invalid to the extent addressed in the opinion it excludes too much + has a strong effect
-	court says no judicial supervision will be provided because the court trusts the municipalities to fix the problem
-	decision is based on state law because they weren’t sure that the same result could be reached under federal law and municipalities act within the power allocated by the state under statutes and state constitutions
-	court may have also wanted to avoid S.Ct. review
-	court said problem was statewide and that every municipality had to provide a share of low-income housing
-	builder’s remedy = developer can add low income housing even if municipalities don’t do it(1082)
-	problem is that a municipality can pay or subsidize another municipality to build their share of low-income housing
-	implementation problems – Cherry Hill said dorms for the racetrack constituted their share of low-income housing
-	each municipality must have land-use regulations that make a choice of housing available

Q.	After Mt. Laurel
-	many view Mt. Laurel as an attempt to preserve low-income housing
-	it also shows limits to judiciary
-	no other state has attempted to deal with this issue comprehensively
-	(1068) – you can’t change human nature and desire of municipalities and communities to achieve the goals they want in their communities
-	at least this case sensitized people to the issues involved

R.	Marital Property Rights

1.	Themes
-	like L/T relationships, law has changed a great deal in this area
-	gender bias existed in English common law
-	1830 – we began to remove this bias
-	361 – list of community property states
-	we are concerned with rights during marriage, after divorce, and at death

2.	English View
-	most states use this
-	H + W have separate property  ownership to acquirer
-	everything became H’s property even though W keeps title to real property H has control and H’s creditors could reach it – W had to give services in return for protection
-	W has contingent right of survivorship 

3.	Married Women’s Property Act
-	gave women control over property and earnings
-	keeps property separate and immune from H’s creditors

4.	Community Property
-	8 states use
-	H + W are marital partnership (i.e. a “community”) an should share equally

5.	Problem p. 363
H agrees to devise certain property to W if W personally cares for H for the rest of his life, W does, BUT H dies and leaves prop to someone else
-	pre-existing legal duty  wife was already legally obligated to take care of husband
-	this decision assumes that there is no right for wife to refuse to provide care
-	it may have been different if an express written contract existed

NOTE: tenancy by entirety  there is right of survivorship
	H + W each individually have right of survivorship
	H + W have interest in property while alive (form of life estate)
-	they each have right to joint use and benefit while alive
you need joint action by spouses to transfer property

6.	Sawada

Facts: 	car accident
addresses creditor’s/3rd party’s rights in relation to tenancy by entirety
creditor’s claim that if you make fraudulent transfer, creditor can force property back
the timing of transfer was an issue in this case – it was transferred after accident and before suit was filed

Holding: says transfer is OK 
-	creditors lose because husband’s creditors can’t have claim to tenancy by entirety
-	creditors don’t have higher standing than debtor
-	H’s right to transfer is limited
-	this case brings Hawaii into Group III (365)
-	any other determination (like jt-T or transferability right to survivorship) hurts family and puts cloud over marriage 
-	policy for T by entirety = 1) family solidarity (H+W have to be married)
          2) protects surviving spouse from decedents debts 
-	this decision should make creditors more aware

Dissent: ct’s decision takes away H’s common law rt to sell property + have property available to handle creditor
-	says if W has equal rts under Married Women Property Act then W should also share equally in “disability”

NOTE: since H was involved in accident alone, he is the only debtor
	if H + W borrow a mortgage together   joint debt
	Note 2 p. 370 (NY is part of different group than Hawaii)
	ouster has to happen before you can claim rental value
if you say creditors of one spouse can claim interest over tenancy by entirety, theoretically creditor can move in with other spouse
right of survivorship is desired by creditor 
- if you are creditor of H and W dies 1st, creditors could get whole thing eventually
“X” could share joint use and benefit as payment but this is not that attractive of an interest to pursue
Group II’s rules create very difficult situations

Group I – common law (unaffected by Married Women’s Prop Act)
Group II – interest of debtor spouse may be sold or levied upon  contingent upon spouse’s right of survivorship
Group III – any conveyance by either spouse is void, separate debts of one spouse only cannot touch the estate
Group IV – right of survivorship is alienable and accessible by creditors during the marriage

7.	US v. 1500 Lincoln Avenue
-	H was indicted for selling prescription drugs w/o a prescription
-	deals with forfeiture rule
-	creditor can only reach property you can assign since T by entirety his to be assigned by both spouses the debt of one can’t reach it
-	when Congress enacted forfeiture rule, they added innocent owner exception
-	says real property can be forfeited excluding the interest of innocent owner
-	Gov. argued that entire property was forfeited due to H’s illegal activity
-	said they were entitled to entire property because W had no severable interest
-	this would entitle Gov. to whole property
-	W argued that Gov. had no interest because H had no severable interest  W has whole interest

Holding:  W gets sole possession
-	court does not accept option of with joint use and benefit
-	Gov. gets H’s right of survivorship (right of survivorship is forfeitable)
-	W retains sole use and benefit during her life
-	if husband dies first W gets all

lis pendres – 	filing that indicates there is pending claim (allows adjudication later)
		this is notice that if H is survivor then H gets all and then Gov. gets it
-	Court does not want this interim solution because it is judicially inefficient because Gov. would have to re-file this claim
-	today NY proposes there is forfeiture of car at time of arrest for drunk driving
-	if there is acquittal owner of car has to prove he/she did not know driver was driving drunk
-	if creditor extends credit before tenancy by entirety is created, and then at a later time a tenancy by entirety is created  creditor can protect himself by making both H + W debtors
-	also (367) it is illegal to use tenancy by entirety for fraud or to avoid debt

Forfeiture – even if you are innocent owner you could lose property (376)
		(but local courts could decide otherwise)

7.	State v. One 1984 Toyota Truck
-	T in entirety  neither T has separate interest 
-	car used to deliver drugs  no forfeiture of W’s interest because W had no knowledge

8.	Bennis v. Michigan
-	car forfeited as public nuisance when H engaged in sexual activity w/ prostitute (H+W jt owners)
-	S.Ct. upheld forfeiture even though W had no knowledge because owner who entrusts property to others bear consequence of misuse.

8.	Graham
Facts: divorce proceeding, W claims to have contributed 75% of financial support
Holding: masters degree is not property
-	reasons:
1)	not sellable, assignable, etc.
2)	no exchange value
3)	not transferable
4)	person to holder
5)	terminates at death
6)	intellectual achievement

-	considers the question “what is property”
1)	maybe everything that has exchange value or which makes up wealth or estate
-	see Moore (66) [property is a bundle of rights – some items of property lack the traditional attributes]
-	wife gets nothing because no marital property was acquired during marriage
-	P made no claim for alimony or maintenance
-	it is difficult to determine value of a degree
-	we generally don’t like open-ended divorces, we want to divide everything

9.	Mahoney v. Mahoney (385)
-	court awarded reimbursement alimony for the financial contribution
-	professional degree is too speculative to value, valuing investment like this demeans marriage
-	reimbursing costs doesn’t cover the issue that the original assistance was an investment with expectation of future earnings
Oldham – double count – earnings are counted toward 2 spouses

10.	Obrien v. Obrien
-	re: medical license
-	said reimbursement alimony was inadequate 
-	interest in a profession or professional career potential is marital property

11.	Elkus v. Elkus
-	H claims that his support be taken into account
-	Def argued that career was started before marriage
-	however court notes that her income significantly increased during marriage
-	H provided services that he claims enhanced her career
-	to extent def. contributions + efforts increased value of P’s career, this appreciation was a product of mental partnership  subject to equitable distribution

12.	Professional Goodwill
-	a divisible marital asset in most jurisdiction = reputation that will generate future $
-	future earning capacity per se is not goodwill

S.	English Common Law
-	Scotland has independent legal system
-	at the time of divorce equitable distribution is universal in Common Law states

at death – 	surviving spouse is entitled to fixed % of all property (objective)
		non-discretionary

at divorce - 	discretion in court to make equitable decision
(augmented estate?)

elusory transfer – common version of elective distribution

there seems to be hesitation to give probate judges power to allocate property

20th century England – probate judges have power to allocate to children and spouse at death

CONSIDER: 	during marriage, at divorce, and at death  what are your rights?

during marriage  	“title approach” – any property before marriage remains your own/separate
			earnings during marriage  you keep title to whatever you acquire

at divorce  	

common law – 
-	prop. remained w/ person with title
-	T in common or Jt T remain intact
-	T in entirety become T in common
-	usually W was entitled to alimony
-	no shared assets during marriage
-	W’s contribution of services

equitable distribution – replaced common law
-	parties divide property based on equitable principles
-	this acknowledges that marriage is a partnership
-	many statutes call for division of all property
-	some allow division only of marital property

no fault divorce – used in almost every state
-	you used to only divorce if one party commited marital fault

rehabilitative alimony – 
-	support for limited period until spouse becomes self-sufficient
-	court considers special needs or permanent alimony after long marriage and it is appropriate to balance inequity
-	may be unrealistic as a temporary solution
-	a divorcee may not have means to provide for herself/himself

At death – 

common law – widow got 1/3 if there were surviving issue and ½ if no issue
-	widower took all wife’s personal property

Dower  	
-	1/3 real property (life estate)
-	if wife predeceases H – loses dower
-	if W survives H, W gets dower
-	it is inchoate – effects transferring of property during life

Curtesy:
-	widower entitled to life estate in each piece of W real property

Uniform Probate Code  uses sliding scale in relation to elective share

forced share 	
-	share in real + personal property at death [½ of all property (fee simple)]
-	does not apply to property owned in jt tenancy, life insurance, gifts
-	it is possible to avoid this by getting rid of assets during lifetime
-	share can be elective  you can renounce will and take statutory share 

T.	Uniform Marital Property Act
-	property acquired during marriage from earnings of spouses = marital property (each spouse gets ½ undivided interest as soon as it is acquired)
-	individual property = property acquired before marriage and acquired by gift, devise, or inheritance
-	divorce – divided according to state’s division system 
-	CA, NM, LA require equal division of community property
-	in states that use community property usually equitable division by a divorce court
-	death – surviving spouse owns ½ and decedent owns ½ (can be devised through a will)
-	Wisconsin Marital Property Act  rights of spouses = community property rights for purposes of fed income taxation

U.	Community Property
consider how this is different from common law

during marriage – 	anything acquired during marriage = community property (i.e. earnings)
			gifts or inheritance are exceptions
			when you came into possession of community property
			other spouse automatically becomes 50% owned by other spouse

common law – there is differed title

property brought to marriage would today be considered separate property, no transmutation of title

at divorce – each spouse keeps separate property 
		community property  each gets 50%
at death – 	surviving spouse gets 50%
		you look at will, if no will there is intestate succession

each spouse gets equal undivided share
philosophy that marriage is a partnership came early in civil law countries and spouses contribute equally to success of marriage

we have moved towards community property  we have retreated from literal following of title system

common law  differed transmutation of title exists

classic disadvantage of community property  there is a classification problem – issue of identifying/tracing source of property
	spouses don’t always keep accurate or separate records

tendency on the part of common law lawyers to know how to deal with community property
there are significant conflict of law issues because the law of the place where you acquire title of property applies

NY has a formal rule regarding “carry overs”
	
1.	Marvin v. Marvin

Facts:
-	P ultimately failed
-	P alleged that there was an agreement to pool assets and to hold P + D out as H + W
-	issue = will court uphold this K

Holding:
-	oral (very commonly used) and written contracts are both used in this area
-	the court does not make the fact that agreement was oral an issue
-	there is a history of disapproval of contracts between unmarried couples
-	concern is about meretricious sex
-	the court recognizes that there has been substantial increase in the number of couples living together
-	this case is rejected in Hewitt
-	a common law marriage that is recognized = legal/real marriage
-	Marvin said “to the extent that the contract is based on sex, it is illegal
-	the court separates sex from other services
a.	Jones v. Daily
-	in this case the Def was already dead (in most other cases both members of couple are still alive
-	court refused to allow P to recover based on meretricious sex argument
-	court would not separate sex from other considerations

V.	Wharton
-	says there is meretricious sex because relationship was like a business relationship

NOTE: same sex couples can only use contract remedy because Hawaii is only state to recognize marriage of same sex couple (Denmark, Sweden, Norway, and Holland have recognized same sex marriage)

W.	Problem 1, p. 415
-	1970 English case said no
-	some places re-issue birth certificates