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PROPERTY OUTLINE

I.

Property
a. Common-law course
b. Applies doctrines set out by courts to new fact patters

II.

Title- ownership of property


a. Evidence of ownership: deed, will, go to registry of deeds and probate
b. Evidence of personal property: possession (presumption of ownership)
c. Right to ownership gives you:
i. Transfer in a full or limited way- buy, sell, let others borrow it
ii. Use
iii. Cant use it to commit a crime or tort
iv. Can exclude others
v. Use as collateral (limited transfer)
d. possession- the right under which one may exercise control over something to the
exclusion of all others and the exercise of dominion over property (holding property in
ones power)

III.

Bailment
a. Bailment- giving property to another for a short time for a limit purpose where the person
who has rightful possession is not the owner (voluntary bailment)
i. Bailor- owner
ii. Bailee- person who takes possession with consent of the owner
b. reasonable care- bailee has a duty of reasonable care not to destroy, damage, or sell
property (modern rule)
c. trover- if bailee or person who has the property sells it, the true owner (or bailor) can
recover money damages in a common law action for defendants conversion to his own
use of a chattel owned or possessed by the plaintiff (trespass)
i. constructive trust- law can impose it and whatever money represents the
property would be held in trust for the true owner- can get at least the amount the
bailee sold the property for
d. replevin- lawsuit to obtain the return of the goods, not damages (ejectment)
e. involuntary bailment- relationship between true owner and person who find property
when it is lost
i. voluntary bailor- true owner
ii. voluntary bailee- finder
iii. duty owed: same issues as voluntary bailment (constructive trust, reasonable
care)
1. true owner has superior rights of property

Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift


Finders
I.

Finders claim
a. Depends on who the rival claimant is and whether the property was
i. Lost
ii. Abandoned
iii. Mislaid
b. Finders have relative title

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c. Policy objectives in finders law:
i. Restore property to true owner
ii. Reward honest finders
iii. Deliver reasonable expectations of landowners
iv. Discourage trespassers and other wrongdoers
v. Encourage productive use of property
d. Three factors that help determine finders rights:
i. Intent of original owner (lost, mislaid, abandoned)
ii. Identity of competing claimants
iii. Location where item is found

II.

Prior Possession Rule of Sequence


a. Priority of possession is based on sequence of possession
b. Prior finders prevail over later finders
i. Rationales:
1. encourage finders to make productive use of findings
2. provide a cheap, easy means of establishing presumptive title
3. stability
c. True owner has greater title than finder and subsequent finder has inferior title against
prior finders
i. Rankings: True Owner -> Finder #1 -> Finder #2
d. finders have relative title
e. bright-line rule: sequence is applied no matter the character of the property possessorseven if possession was acquired in tort
i. may not be fair, but is predictable and creates order
ii. cases are out there that defy rule out of fairness and equity

III.

Abandoned property
a. Abandoned- owner has voluntarily and intentionally given up claims of ownership
i. Typically, finders prevail
ii. Intention is key
b. General rule: a finder of abandoned property acquires title, but is not invariable
i. Trespassers are not likely to be rewarded
1. unless trespass is trivial or merely technical- Favorite v. Miller
ii. Owners of land where abandoned property is found may sometimes have strong
and reasonable expectations of abandoned property

IV.

Lost property
a. Lost- owner unintentionally and involuntarily parts with it through neglect or
inadvertence and does not know where it is
i. No duty owed to true owner
b. General rule: finders title for lost property is good against the whole world except the
true owner, prior finders, and (sometimes) the owner of the land where the object is
found (knowledge, embedded/attached, employer/employee, dominion)
c. Armory v. Delamirie
i. Plaintiff took stone to jeweler to get it appraised; jewelers apprentice took stones
out, gave setting back, and wouldnt return stones
ii. True owner cannot be found (involuntary bailment situation)
iii. Defendant thinks he has possession because Armory didnt have title (mere
finder)

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iv. Sues in trover- likely defendant sold stones so he couldnt get them back
1. awards money damages in the highest worth stones could have had
v. rule: finders title is good against the whole world except the true owner, prior
finders, and (sometimes) the owner of the land where the object is found
d. Anderson v. Gouldberg- prior possession applies even if the First Finder stole the watch
from the True Owner
i. One who has acquired the possession of property, whether by finding, bailment,
or by mere tort has a right to retain the possession as against a mere wrongdoer
who is a stranger to his property
V.

Lost property and issue between finder and landowner


a. Hannah v. Peel
i. Facts
1. Peel owned house and never moved in; house was used to house soldiers
during WWII
2. Hannah found a brooch while adjusting black out curtain; reported find;
police gave brooch to Peel and he sold it
3. Hannah sued for money damages or return of the brooch
4. Peel claims that because it was found on his property, it is his and he is
first in the sequence of possession
5. Hannah follows Armory rule
ii. Locus in quo- place where something has alleged to occurred
iii. freeholder- ownership rights (Peel is the freeholder)
1. nonfreeholder- renter/leasing
2. conveyance- purchase; transfer of deed
iv. Sequence- does ownership of property where object is found count as prior
possession?
1. constructive possession- not actual possession; deem circumstances to be
as though person has actual possession/notice
a. possession even if there is no dominion exerted or hands are not
physically on it
v. court applies precedent
1. Bridges- applies general Armory rule that lost article is entitled to the
finder against all persons except the real owner
a. Bank notes lost in public part of property
b. Says location doesnt matter
c. Makes reference that object was lost, so Armory controls
d. In cases where object is lost, no duty is owned to the true owner
2. Staffordshire v. Sherman
a. Worker discovers two rings embedded in the land
b. Rings found on private property
c. The possessor of land is generally entitled as against the finder,
to chattels found on the land
d. Also, rings found in the course of what the worker was doing
(goes to landowner)
3. Elwes v. Brigg Gas Co.
a. Prehistoric boat found on property
b. Court ruled for lessor and said it did not matter that lessor did
not know boat existed prior to discovery
i. Demise- lease

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c. Boat was embedded in the soil prior to purchase
i. Had constructive possession of the boat
vi. Court rules Peel did not have constructive possession
1. never moved in, was not aware until Hannah found brooch, and did not
have possession of unknown contents
vii. Court ruled brooch was lost- finders rule in Armory
viii. Hannah acted commendably

VI.

Mislaid property
a. Mislaid- owner voluntarily puts it in a particular place, intending to retain ownership, but
then fails to reclaim it or forgets where it is.
i. Owner of the locus in quo gets possession
1. more likely to be returned to true owner
2. duty to care for mislaid items
b. problem: might be on the floor, but might not be lost
i. hard to make distinctions (circumstantial evidence)
c. McAvoy v. Medina
i. Plaintiff was a customer in defendants barbershop. P found a pocket-book which
was lying on the table there. Defendant took it and counted the money, and
plaintiff told him to keep it and if the owner showed up, to give it to them and to
advertise. Plaintiff made three demands for the money. Owner was not found
ii. Rule: Mislaid property found in public places goes to the landowner. Mislaid
property is property that the true owner placed somewhere with the intention of
returning for it, but which cannot now be located.
iii. Court rules its mislaid- probably not lost
1. best chance to return to landowner

VII.

Finders Cases
a. Armory
i. True owner -> finder -> subsequent possession
b. Hannah
i. True owner -> finder -> locus owner (lost property)
c. McAvoy
i. True owner -> finder -> locus owner (mislaid property)

VIII.

Basic Rules of Lost and Mislaid Property


a. Finder v. Landowner
i. Trespassing finders- trespassing finders of lost or mislaid property usually lose
(Favorite v. Miller)
ii. Employee finders- older cases say employee finders must surrender the find to
their employer if the employee has a contractual duty to report finds
iii. Invitee finders- invitee finder who finds property in the course of doing what he
or she is invited to do must surrender it to the landowner
1. look for constructive possession
2. Sharman
iv. Embedded Objects and Treasure Trove
1. embedded- awarded to the landowner
a. landowners expectations of owning thing in the dirt
2. treasure trove- gold, silver, or money buried with the intent of return and
recovery
a. old view: reward to the finder

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b. modern vie: goes to the landowner, but courts still differ
v. Private Homes
1. question turns on whether landowner has constructive possession (are
they absentee owners)?
2. also whether things are lost or mislaid, embedded, etc.
vi. Public Place
1. lost property- goes to the finder (Bridges)
2. mislaid property- goes to the landowner (McAvoy)
3. circumstantial in determining whether it is lost or mislaid
IX.

Equitable Division
a. Equitable division- found property can sometimes be shared equitably among competing
claimants
i. Remedy in some cases to the all or nothing approach
ii. Ex: Barry Bonds baseball; both Popov and Hayashi had equal interest in the ball
and court said they should share it equally

X.

Statutes
a. Statutes can modify common law rules and determinations of what is lost, mislaid, or
abandoned and who should get possession

XI.

Key Terms
a. Bailment
b. Constructive trust
c. Trover
d. Replevin
e. Freeholder/nonfreeholder
f. Constructive possession
g. Locus in quo
h. Lost
i. Mislaid
j. Abandoned
k. Demise
Adverse Possession

I.

Key Terms
a. Ejectment- equitable action as an alternative to trespass (money damages) where the
court gives you the right to mandate removal of person/occupier and stuff from property
b. Action to Quiet Title- brought against all possible claimants of title; has the court say
who owns the property
c. Doctrine of Relating Back- deals with taxes and adverse possession; dont pay taxes for
property during adverse possession, but will pay back taxes on the years you occupied
once you become record owner after statute of limitations expires
d. Interruption by Real Owner- ending the ability for adverse possessor to take advantage
of the years after the cause of action accrues
i. Cant get kicked off land and go back on; SOL starts back at zero
ii. Examples: ejectment, action to quiet title, easement (rightful use of someone
elses property), renting, prescription
e. Abandonment by Adverse Possessor- cant come back and claim adverse possession
i. Lose time accrued if you want to come back and claim it

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f.

Temporary Interruption by Adverse Possession


i. Left and came back
ii. Statute of limitation is tolled (a stay is placed on it)
1. suspends time clock for time they left but didnt abandon
g. Derivative Title v. Original Title
i. Derivative Title- title that results when an already existing right is transferred to
a new owner
ii. Original Title- title that creates a right for the first time
II.

Adverse Possession
a. If true owner fails to start legal proceedings to remove a person who adversely possesses
his land within the period of the statute of limitations, the true owner is forever barred
from removing the adverse possessor
i. Possession ripens into title for the adverse possessor
b. Two requirements of adverse possession:
i. Expiration of the relevant statute of limitations (statutory)
ii. Adverse possession during the limitations period (common-law, can also be
statutory)
c. Cause of action accrues when all the elements of adverse possession are met?- is this
correct
d. Rationales for adverse possession- economic, psychological, moral
i. Sleeping theory- people who ignore their own land deserve to be penalized and
not be able to assert ownership after a certain time period (use it or lose it)
ii. Earning theory- people who use land productively and beneficially for a long
time ought to be rewarded
1. adverse possessor has invested time and effort into the land
2. develops expectations of continued possession
iii. Stability theory- enables disputes and doubts about land titles to be cleared
expeditiously by delivering title to person who has occupied the land as if she
were the owner for a long time without objection
e. Adverse possession and prospective buyers
i. Go inspect the property- title search will not show adverse possession

III.

Elements of Adverse Possession: need to satisfy all elements to start the cause of action
a. Actual entry/possession
i. Must physically take possession of the land- clock on limitations runs on actual
entry
ii. Some states define adverse possession by statute- Van Valkenburgh
b. Open, notorious, and visible
i. Possessor needs to give notice
ii. Must be readily visible
iii. Open and notorious constitutes notice
iv. Act as true owner would in making it open, notorious, and visible
v. Underground occupation- Marengo case (needs to be visible)
1. Marengo Cave v. Ross- A & B owned lands adjacent; cave under both
lands; A had an opening on his land and opens it as tourist attraction
a. Court says it was not open and notorious- protects true owners
b. B didnt know A was using his land underneath adversely
vi. Boundary disputes- Mannillo
vii. Most states- state of mind is irrelevant
c. Exclusive possession

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i. The possessor has excluded the true owner and the public
ii. Possess in a manner an average true owner would under the circumstances such
that observers would regard occupant as exercising exclusive dominion
iii. Group of people could exclusively occupy- concurrent ownership
d. Hostility or Adverse Claim of Right
i. Occupying land without permission of the true owner with an intention to remain
1. no permission means not subordinate to the true owner
2. unilateral act cannot destroy hostility- must be agreed upon by TO and
AP
a. ex: true owner says AP can own land (doesnt destroy hostility
unless AP agrees)
b. if adverse possessor disclaims ownership, the possessor has
stopped being adverse
ii. hostility does not mean ill will or malice
iii. Claim of right- claim a right to stay on the land
iv. Three States of Mind for Adverse Claim of Right
1. Good Faith Occupation- adverse possessor must have a genuine, good
faith belief that she owns the occupied property
a. if you know land is not yours, can never acquire title by adverse
possession
b. color of title- ultimate in good faith
2. Aggressive Trespass- the occupier knows the property is not hi but
intends to claim it nevertheless (bad faith)
a. almost nobody adheres to this view today (rewards deliberate
trespassers)
3. Objective- state of mind is irrelevant; courts focus on two things:
a. lack of permission
b. whether occupiers acts and statements objectively appear to be
claims of ownership
v. Boundary Disputes
1. most courts apply objective test of hostility
2. minority applies the Maine Doctrine subjective test- occupier is not
possessing adversely unless she occupied under a good faith but
mistaken belief that the land is hers, but she would not have occupied the
land if she knew the true facts
a. encourages perjury and rewards trespasser
e. Continuous
i. Possession is continuous for the period of statute of limitations
ii. Without interruption
iii. Must occupy the property as continually as would a reasonable and average true
owner of the property
1. ex: summer home in Howard v. Kunto
iv. Continuity is destroyed with abandonment
v. Tacking- when a possessor adds the time of a prior possession to his own
1. if privity of estate exists, tacking is permitted
a. privity of estate- voluntary transfer from first possessor to
second possessor of either an estate in land or actual possession
2. tacking for owners
a. same as with possessors- time period for ejectment continues
3. ouster- if adverse possessor is ousted by a third party, the third party
cannot tack the ousted possessors period of possession

f.

a. the transfer must be voluntary


b. 3 views if ousted possessor returns
i. Limitations period begins anew (favors true owners)
ii. Does not interrupt continual running of limitations
period (favors adverse possessors)
iii. Statute of limitations is tolled, or suspended, for the
period ousted was gone (intermediate view)
Must be for the statutory period- abide by the statute of limitations
i. Adverse possession begins when adverse possessor takes or gets on property for
the first time
ii. Possessors title is superior to all but the record owner between when cause of
action accrues until statute of limitations runs out

IV.

Van Valkenburgh v. Lutz


a. Statute involved for adverse possession without color of title: must bring it within 15
years and requires additional factors:
i. Where it has been protected by a substantial enclosure
ii. Where it has been usually cultivated or improved
b. Lutz bought lots 14 and 15 in 1912
i. Set up Charlies house and cleared triangular tract in 1920 on lot 19 and in 1916
put a truck farm in
c. Court held for Van Valkenburgh
i. Couldnt prove that Lutz had substantially enclosed or usually cultivated or
improved the property
ii. Lutz testified he knew he was not on his land at the time- no claim of right
1. wasnt hostile
iii. court says garage, house, truck, supplies didnt improve the property
iv. didnt use all the land- not a substantial amount
d. Court does give him a prescriptive right- right to use part of the land for a specific
purpose on occasion, but title remains with VV
e. Seised- possession
f. Disseised- ownership is taken away

V.

What if Person Messes with Property of Person who is Adversely Possessing?


a. Adverse possessor can do anything record owner would do
i. Has relative title- has all rights of property against everyone except true owner

VI.

Adverse Possession Elements Review


a. Actual entry
b. Open, notorious, and visible
c. Exclusive
d. Hostile/adverse claim of right
e. Continuous
f. Must be for the statutory period

VII.

Color of Title and Constructive Adverse Possession


a. Color of Title- person enters under color of title when there is a defective deed or other
writing or decree that purports to deliver title to the possessor, but which the possessor
does not know to be invalid
i. Writing or deed is defective or invalid
ii. Conveying land that is not actually theirs

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b. Possessors who enter with color of title satisfy adversity element
c. Bright line rule: with color of title, person is given constructive possession of all the land
if he is in actual possession of only part of the land
i. Other rule: with color of title, in possession of adversely possessed area and
constructive possession of a reasonable area
VIII.

Mannillo v. Gorski
a. Boundary dispute: Gorski bought lot and in 1946, son made addition and changes to his
house. In 1953, steps were extended 15 inches onto adjacent lot. Mannillo asserts no
adverse possession because there was no hostility or adverse claim of right.
b. Encroachment was not an intention to invade Mannillos lands, but rather the mistaken
belief that Gorski owned the land
i. wants to use Maine Doctrine: possession as an element of title by adverse
possession cannot be bottomed on mistake. The occupier not possessing
adversely if she occupied under a good faith but mistaken belief that the land is
hers, but she would not have occupied if she knew the true facts.
ii. Gorski wants to use Connecticut Doctrine: look at actions, not state of mind
c. Court adopts Connecticut Doctrine (issue 1)
d. Issue 2: was it open and notorious?
i. Court remands to see if Mannillo had knowledge structure was on his land
e. Open and notorious
i. More reasonable to use objective standard
ii. Look to see if it is visible
iii. Requires actual knowledge- just b/c it is in sight does not mean it is open and
notorious (small encroachment)
iv. Look at the ordinary and prudent person
f. equity can furnish relief- can buy the land from landowner for market value to keep their
improvement
g. Rule: no open notorious if a small area is not clearly and self-evidently an encroachment

IX.

Mistaken Boundaries
a. Doctrine of agreed boundaries- if there is uncertainty between neighbors as to true
boundary line, an oral agreement to settle the matter is enforceable if neighbors accept
the line for a long period of time
b. Doctrine of acquiescence- long acquiescence is evidence of an agreement between the
parties fixing the boundary line
c. Doctrine of estoppel- when one neighbor makes representations about (or engages in
conduct) that the location is a common boundary, and the other neighbor then changes
her position on reliance of representations or conduct.

X.

Mistaken Improvers
a. Relative hardship test- tendency given in Mannillo; can force conveyance of land from
owner to the improver

XI.

Howard v. Kunto
a. Color of title is present
b. Kunto had a deed to land used for a summer home that wasnt the land on the deed
c. 2 primary issues:
i. Claim of right
ii. Continuous Possession
d. Continuous Possession

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i. Satisfied through use of a summer home- intended to be used as a summer home
(meets continuity requirement)
ii. The requisite possession requires such possession and dominion as ordinarily
marks the conduct of owners in general, in holding, in managing, and caring for
property of like nature and condition- reasonable owner
e. Claim of Righti. Whether purchase is adequate
ii. Tacking of adverse possession is permitted if the successive occupants are in
privity
iii. Court allows tacking even when the deed is not for that land (color of title)
XII.

Extent of Property Acquired by Adverse Possession


a. Color of title- possess all the land described in the defective deed, so long as it consists of
a single parcel and the possessor has occupied a significant portion of the parcel
i. Constructive possession never as good as actual, so if person enters with color of
title they will not acquire title to land that is actually occupied by someone else
b. No color of title- acquires only the land they actually physically possessed for the
limitations period

Problems- p. 142
1.O owns Blackacre. Privity has to be voluntary conveyance and Bs possession doesnt tack. If A
abandons, it is not sufficient to lead to tacking. If A is ousted, 10 years and 6 months (tolling- most likely
the right one)
XIII.

Disabilities
a. Statutes of limitations typically provide for tolling of the limitations time clock if the
owner is disabled from bringing an action to recover possession at the time the cause of
action accrues
b. Typical disabilities
i. Insanity or unsound mind
ii. Imprisonment
iii. Condition of being a minor
c. read the statute carefully!
i. Typically, if owner is disabled at the time the cause of action accrues, the owner
may bring a suit for some specific period after the disability ceases
d. Future Interest Holders- adverse possession does not cut of their future claim to possession
owns the remainder
d. How to deal with a disability problem
i. First calculate based on normal operation of statute of limitations
ii. make sure disability exists at the time the cause of action accrues
iii. find the date on which the disability is removed an add 10 years
iv. if that date puts you past the normal operation of statute of limitations, use

this extended statute of limitations under the disability statute.


1. O is insane 1980. O dies insane and intestate in 2003- SOL is 21 years and 10 year exception for
disability
a. Os heir, H, is under no disability in 2003. H has until 2013 (has full 10 years from removal of
disability)

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b. Os heir, H, is 6 years old in 2003. H has until 2013 ( H wasnt a minor in 1980- disability
wasnt present when actual entry that began statute of limitations to go)
2.O has no disability in 1980. O dies intestate in 1998. Os heir, H, is 2 years old in 1998. H has until
2001 (no disability when cause of action accrued)
3. O is 5 in 1980. In 1990 O becomes mentally ill, and O dies intestate in 2005. Os heir, H, is under no
disability. Does adverse possessor acquire title in 2001, 2003, or some later date? 2003 (disability
disappeared in 1993); insanity is irrelevant
4. O disappears in 1993 and is not heard from again. You represent B, who wishes to buy from A. What
advice do you give B?
XIV.

Adverse Possession by Tenants and Co-Owners


a. Tenants- not usually capable of adverse possession because their entry was permissivesubordinate to owners claim of title
b. Co-owners- usually not capable of adverse possession because every co-owner has equal
right to ownership
i. Adverse co-owner must oust the other co-owner by excluding the co-owner from
possession and claiming sole ownership
Fee Simple Estates

I.

Vocabulary
a. Fee- inheritable interest in land
b. Possessory estate- legal right to occupy the land immediately
c. Future interest- right (and sometimes only the possibility) to possess the land at some
time in the future
d. Freehold v. non-freehold estates
i. Freehold- ownership of property
ii. Non-freehold- lease/renting; possession is subordinate to the owners rights of
ownership
e. Seisen- possession of a freehold estate land; ownership
i. Means ownership instead of tenancy
1. a nonfreeholder can have possession but not seisen
ii. Seizen
iii. Seized/seised of the land- to take possession of property
f. Easement- interest in land owned by another person, consenting in the right to use or
control the land for a specific, limited purpose
i. Using land but dont have title (ownership doesnt change)
g. Livery of seisen- delivery of the possession of real property
i. Ex: owner of property who transfers (grantor) would hand over dirt
ii. Handing over right of possession- grantee is the new freeholder of the estate
h. Fee simple-absolute ownership that is potentially indefinite
i. Issue- lineal descendants
j. Collaterals- not an issue or ancestor, but is still a blood relative
k. Heir apparent- heir who is certain to inherit property unless he or she dies first or is
excluded by a valid will
l. dead hand control- ability for people in this generation to control beyond their death
or conveyance to control something about the property
i. Deciding by deed or will how property will be controlled in the future

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ii. Problem: too much dead hand control, too much inalienable property
1. hard to get a loan from bank (bank cant take it unless they are subject to
controls); cant seize and sell at auction; hard to get a mortgage
2. economic inefficiency
iii. why allow it?- easy to control and easy to transfer or convey to future generations
m. Alienability- power to transfer resources to another person
II.

Four types of Freehold estates


a. Fee simple
b. Fee tail- lasts only for the lineal line of the grantee and that endures until its current
holder dies without issue
i. to A and the heirs of his body
c. Defeasible fees
d. Life estate

III.

Estate in Land v. Land


a. Estate in land is not the same thing as the land itself
b. Estate in land- connected to the land but existing apart from it
i. Consists of a bundle of legal rights and obligations towards other with respect to
a particular parcel of Earth (title reality)
ii. Can be conveyed, subdivided, and put back together, but the land itself remains
unchanged

IV.

3 ways to transfer title


a. Inter vivos conveyance by deed
i. Granter to grantee
ii. Operative at the delivery of the deed (when deed is given from grantor to grantee)
b. testamentary (with will) transfer by will
i. transfer to devisee
ii. becomes operative at testators death
c. intestacy (no will) descent by operation of intestacy statute
i. decedent to heir
ii. becomes operative at the time of the decedents death

V.

Limits on Transferability
a. Purpose of land
b. Maintenance of land
c. Use of land
d. Duration of occupancy
e. Restrictions or affirmative obligations

VI.

How to enforce limits


a. Forfeiture- goes back to grantor or to a third party
b. conditions
c. Legal or equitable relief

VII.

Fee Simple
a. Also called a fee simple absolute
b. Fee simple absolute- can potentially endure forever
i. Absolute ownership in the duration that it is perpetual (can last forever)
ii. Only time it can end is if a shorter estate is carved out (ex: life estate)

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iii. If nothing is done to carve out a smaller estate, it will always be a fee simple and
will never change
iv. Ex: A is owner of property in fee simple absolute. When A conveys it to B, B
now has possession in fee simple absolute
1. A cant come back and question how E is handling or property or
questioning a subsequent conveyance- A no longer has an interest
c. NOTE: unless mentioned otherwise, assumed Owner has fee simple absolute
d. No future interest
e. Example:
i. A owns Lot 1 and has title even though B is tenant, C is a bank, and D holds
easement
VIII.

Evolution of Language Conveying a Fee Simple Absolute


a. Common law: fee simple absolute was created by a grant to A and his heirs (had to use
those words)
i. To A and his heirs creates a perpetual estate, presently held by A
ii. and his heirs- words of limitation
iii. to A- words of purchase
iv. Heirs- no interest in the estate at this point
b. Modern View: do not need to use words of limitation- and his heirs
i. Can just say to A and it will be fee simple absolute unless the grant is to the
contrary in deed
ii. there is a language of conveyance (O to A)
iii. there is a legal description that helps locate the property

IX.

Alienability and Inheritance of the Fee Simple Absolute


a. A fee simple absolute is:
i. freely alienable,
ii. devisable by will, or
iii. inheritable in intestacy (the state of dying without a will)
b. alienation- owner of a fee simple absolute can convey the entire fee simple absolute to
another person
i. fee simple absolute continues- it just has a new owner
c. devisability- land in fee simple absolute can be transferred by will
i. devisees received the transfer of the fee simply absolute from the testator
1. can be anyone prescribed by the will; are not heirs
2. person dying with a will has devisees (of real property) or legatees (of
personal property)
ii. owner of fee simple absolute can send it under his will to anyone he pleases, or
split it up into pieces that when added together create a fee simple absolute
d. inheritance- transfers of property owned by a person dying without a will (intestacy)
i. after As death fee simple absolute will be held by heirs in the absence of a will
ii. heir- only a person dying intestate has heirs
iii. Usual statutory scheme for inheritance: think lineal
1. decedents property is set aside for the surviving spouse to get a portion
and the remaining to the decedents children
2. in the absence of a spouse or children, the decedents ancestors (parents)
are heirs
3. in the absence of a surviving spouse, children, or ancestors, the heirs are
collateral kin
a. brothers, sisters, nieces, nephews, aunts, uncles, and cousins

14
4. in the absence of collateral kin, it goes to grandparents
a. no grandparents, go lineal to aunts and uncles
b. no aunts and uncles, then cousins
5. if there are absolutely no heirs, the decedents property will escheat to
the state
a. escheat- property goes to the state
X.

Inheritance of a Fee Simple Terms


a. Heirs- if a person dies without a will (intestate), decedents real property goes to heirs
(next of kin get personal property)
i. A living person has no heirs!
1. have heirs apparent, but are powerless
ii. Persons who survive the decedent and are designated as intestate successors
under the statute of descent
iii. Surviving spouse is designated as an intestate successor of some share of
decedents land
iv. Children will often get a share as well
v. Sequence:
1. first issue
2. if no issue, then parents/ancestors
3. if none, then collaterals
b. issue- all lineal descendents (children, grandchildren, great-grandchildren)
i. does not only refer to immediate children
ii. right of representation- if any child of the decedent dies before the decedent
leaving children who survive the decedent, the childs share goes to his or her
children through right of representation
iii. adoption- today, the inherit from adoptive parents and sometimes from natural
parents
c. ancestors- by statute parents usually take heirs if the decedent leaves no issue
d. collaterals- all persons related by blood to the decedent who are neither ancestors or
descendants
i. brothers, sisters, nephews, nieces, uncles, aunts, cousins
e. escheat- if there are no heirs, the property goes to the state

Problems- p. 183
3. a) no b) no
Problems- p. 185
1. A gets 50% and 3 children get 50% by right of representation. Bs wife doesnt get anything because B
didnt have an interest to Blackacre when he died
2. No. It goes to ancestors. If not ancestors, then collateral kin. Only after there is nobody, then it escheats
to the state

Life Estates

15

I.

Types of Estates
a. Fee Simple- O to A
b. Life Estate- O to A for life
c. O to A for life, then to B- life estate and B holds remainder in fee simple

II.

Life Estates
a. Life Estates- a possessory estate that expires upon the death of a specified person
i. Determined by a regular, measurable life
1. a life estate is freely alienable during life, but the transferee receives the
transferors life estate
a. market value of a life estate is thus a fraction of the value of a
fee simple absolute
2. a life estate can also be defeasible
ii. O to A for life
1. A- possessory estate
2. O- future interest (reversion)
3. when A dies, O gets the property in fee simple absolute through reversion
iii. reversion- what O retains in a life estate
1. O has a future interest now, but possession is delayed
2. future interest in this case is a property right and is transferable
iv. O to A for life, then to B
1. no reversion
2. B has a remainder (a gift over)
3. like reversions, remainders are alienable, devisable, and descendible
4. if B dies while A is alive, remainder is part of Bs estate and goes to his
heirs or devisees
5. when B takes possession, it is in fee simple
b. life estate pur autre vie- when the duration of a life estate is measured by the life of
another
i. ex: A to G for life. G then conveys it to B. B has life estate measured in terms of
Gs life
c. life estate lets transferor have some control over estate after A dies
d. future interests in life estate
i. reversion- grantor
ii. remainder- third party

III.

Estates and Interest


a. Estates- are presently possessed
b. Future interests- are present interest in future possession
i. All future interests are:
1. alienable- by deed (inter vivos)
2. devisable- by will
3. descendible- by intestacy statute
c. Termination of a fee simple
i. Done by carving estate up into smaller portions
1. ex: creating a life estate

IV.

The Modern Life Estate- ***Emanuel p. 38***


a. Equitable life estate- property interest, owned for life, in assets of a trust
b. Legal life estate- estate for life in the assets themselves

16

V.

Judicial Responses to the Inflexibility of the Legal Life Estate


a. Best Interests of the All the Parties/ equitable necessity- where it can be proved that the
sale is in the best interest of the parties and is the only practical method to effectuate the
grantors intention to provide material comfort for the life tenant and preservation of
asset value for remainderment, a court may invoke its equity powers and order sale of all
or part of the property
i. See Baker v. Weedon
b. Waste- life tenant is entitled to all ordinary uses and profits form the land, but must not
commit waste and injure the interests of future takers
i. Dont have a fee simple so you cant do anything you want
ii. Waste- term used to describe actions of the life tenant that permanently impair
the propertys value or the interest of the future interest holders.
iii. New cases regard waste as a device to prevent one person from unfairly reaping
economic benefits from land possession imposing economic losses on another
person who shares an interest in the land
1. affirmative waste- when life tenant acts affirmatively to damage land
permanently (also called voluntary waste)
a. ex: life tenant cut down all the timber and burn barn
2. permissive waste- life tenant fails to act reasonably to protect
deterioration; life tenant must act like an ordinary prudent person
a. ex: failing to pay property taxes or failing to repair roof
3. ameliorative waste- life tenant acts affirmatively to change the principal
use of the property and thereby increases the value of the land
a. actionable only where it is clear that:
i. grantor intended for no change in use
ii. property may still be used in way grantor intended
iv. person holding a future interest can limit what present possessory estate owner
can do
1. can still use, sell, possess, exclude, but must not commit waste

VI.

Baker v. Weedon
a. Weedon devised a farm to his widow, Anna, in a life estate and upon her death to her
children (if she had any) and if not, to the grandchildren from his first marriage.
Commercial value of the land rose because it was in the path of urban development. Anna
was making $1300 a year from farm. Anna wanted to sell the farm and invest the
proceeds to increase her income, but remaindermen were unwilling to do so because they
thought the value of the farm was increasing rapidly
b. John to Anna for life, then to her children, or if no issue, to his grandchildren
c. How did state contact grandchildren
i. Registry of probate and/or deeds at the county level
d. grandchildren didnt want to sell because they wanted the maximum value of property
e. court looks at competing claims throughout he best interests of the parties and avoidance
of waste
i. sells only part of land to settle Annas financial woes and leaves the rest for the
grandchildren that could appreciate the value
f. hypothecate- pledging property as collateral for a loan
i. together, Anna and grandchildren make a fee simple

Problems- p. 142

17
2.In 1990 A enters adversely upon Blackacre, owned by O. In 1991, O dies, leaving a will that devises
Blackacre to B for life, remainder to C. In 2006 B dies without ever having to enter Blackacre. Who owns
Blackacre?
- A owns Blackacre. A gains a fee simple because thats the type of estate it was when the cause
of action accrued. Just because estate changed is immaterial
3. O, owner of Blackacre, dies in 1991 devising to B for life, remainder to C. In 1992, A enters
adversely upon the land. In 2006 B dies. Who owns Blackacre
- A has life estate for the life of Bs life (pur autre vie)
- When B dies, C (who has fee simple) can get them off the property. Cause of action starts all
over again! If they can get AP over Cs possession of life estate, A has a fee simple
Possessory Estates in Land
I.

Possessory Estates in Land


a. Freehold Estate- system of ownership
i. Fee simple- fully alienable; no restrictions or ability from previous owners to
reach out and control use
ii. Life estate- usually disposing of property to family members and controlling
someone who has a claim to property during and who takes it after life
1. reversion- goes back to owner, or their devisees or heirs
2. remainder- to a third party or multiple third party
iii. Defeasible fee
1. fee simple determinable
2. fee simple subject to a condition subsequent
3. fee simple subject to an executory limitation
b. Non Freehold Estate- system of non-ownership (renter)
i. Leasehold
Defeasible Fees

I.

Defeasible Fees
a. Defeasible fees- a fee simple that is subject to termination upon the happening of a future
event; doesnt have to terminate
1. strings attached, earmarking of funds
ii. Future even may never occur, in which case it endures as long as a fee simple
absolute
b. Distinction between fee simple absolute and defeasible fee simple
i. Fee simple absolute cannot terminate or divest based on a future event
ii. Defeasible fee is subject to termination or divestment upon the occurrence of a
future event
c. Three Types of Defeasible Fees
i. Fee simple determinable
ii. Fee simple subject to a condition subsequent
iii. Fee simple subject to an executory limitation
d. used for charitable giving or controlling families

II.

Future Interest
a. Future interest- interest in property now, but possession is delayed; in defeasible fees the
future interests are:
i. Possibility of reverter

18
ii. Right of entry
iii. executory interest
III.

Fee Simple Determinable


a. Fee simple determinable- created when grantor intends to grant a fee simple only until a
specified future event happens and uses language in the grant to manifest the intent
i. Is limited durationally
ii. But could continue forever if even doesnt happen
b. words of duration that hint at fee simple
i. while
ii. during the time that
iii. during the period that
iv. for so long as
v. until
c. possibility of reverter- interest retained in a fee simple determinable
i. ex: estate is divided in present possessory estate (fee simple determinable) and
future interest (possibility of reverter) and added together create a fee simple
absolute
d. automatic reversion in a fee simple determinable
i. some courts do not like automatic reversion
ii. most courts reject self-help unilateral acts
e. still need to keep adverse possession in mind
f. transferability- transferee takes the estate subject to the limitation that keeps it defeasible
i. alienable
ii. devisable
iii. descendible
g. example: O to A for so long as the property is used for library purposes
i. A has present possession until the property is ceased to be used for library
purposes and if they dont use it that way, O gets right to present possession

IV.

Fee Simple Subject to a Condition Subsequent


a. Fee simple subject to a condition subsequent- grantor intends to convey a fee simple
absolute, but has attached a string to the grant so that if a specified future event happens
(condition subsequent) the grantor may pull the string and get his fee simple absolute
back
i. Preferred more than a fee simple determinable because transfer is not automatic
b. contrast with fee simple determinable
i. in FSSCS, there is a full grant of the fee simple, but it can be lost if right of entry
is exercised
ii. in FSD, grantor retains possibility of reverter
c. words to make FSSCS
i. but if
ii. provided
iii. however
iv. on the condition that
v. must
d. right of entry- interest retained by grantor in FSSCS
i. action is necessary to assert right of entry
ii. dont need to actually enter and take possession, but must do more than proclaim
his intention to retake possession
e. not automatic- grantor must actually exercise right of entry for fee to come to an end

19
i. has an option to terminate
transferability- freely transferable
i. alienable
ii. devisable
iii. descendible
g. Preference for FSSCS
i. Courts dont like the automatic forfeiture
ii. Ambiguous cases- courts prefer to find fee simple subject to condition
subsequent
1. makes forfeiture an option
h. example:
i. O to A, but if property ceases to be used for library purposes, then O retains
right of entry
ii. What if O never comes back? A is not trespassing and retains possession
i. laches- if a party is sleeping on their rights, coupled with a long period of time where
they have not come forward, they lose their right to make a claim in equity
i. controls Os ability to make a claim after failing to use right of entry
ii. similar to adverse possession
j. Mountainbrow Lodge No. 82, Independent Order of Odd Fellows v. Toscano
i. Habendum clause in will devising property to OOF- Said property is restricted
for the use and benefit of OOF only; and in the event the same fails to be used by
the OOF or in the event of sale or transfer by OOF part of all or any part of said
lot, the same is to revert to the first parties herein, their successors, heirs, or
assigns
1. uses word revert- sounds like FSD
2. rest sounds like a FSSCS
ii. why prefer FSSCS over FSD
1. best use of property
2. automatic reversion- person may not know it is theirs
3. places burden on holder of right of entry rather than present possessor
iii. Odd Fellow argument- habendum clause restricts alienability and is therefore
void
iv. Toscano argument- it is a fee simple subject to condition subsequent
v. Issue: is it a FSA or a FSSCS?
1. court says you cant use a direct restraint on alienation
2. or allows you to splice it and treat it as a FSSCS
vi. question: should we tolerate use restrictions for property to be used by certain
people for specific purposes?
vii. Cast v. National Bank test- if condition subsequent expressly limits to an
impermissibly small number of persons, it is void and unenforceable
1. what does impermissibly mean?
f.

V.

Fee Simple Subject to an Executory Limitation


a. Fee simple subject to an executory limitation- fee simple that is divested (shifted) from a
transferee to another transferee upon the occurrence of some future event
i. Fee simple subject to an executory limitation- interest created in initial transferee
b. O doesnt retain an interest, so if there is a breach or forfeiture, it goes to a third party
c. Executory interest- future interest created in a third party
d. Example:
i. O to A for so long as property is used for library purposes, then to B
1. fee simple determinable example

20
ii. O to A, but if property is not used for library purposes, then to B
1. fee simple subject to a condition subsequent example
e. automatic- prevailing doctrine transfers fee to third party automatically, regardless if it is
a FSD or a FSSCS
f. B gets interest automatically and it is in fee simple absolute
i. If A is adversely possessing, up to B to call them on it
VI.

Note
a. Watch out for covenants- a formal agreement or promise
i. O to A. A promises to use property for library purposes only
ii. Non-possessory interest enforceable either by injunctive or monetary damages
iii. Make sure it is drafted correctly

VII.

Standardization of Estates
a. Once you label something, for example as a fee simple subject to a condition subsequent,
all the other characteristics fall in line
i. If bad drafting causes ambiguity in the type of fee simple, court has to choose
what type it is
b. numerus clausus- requires standardization of the type of property so people understand
their rights and what they are getting
Restraints on Alienation of Freehold Estates

I.

Generally void
a. Restraints on alienation of a freehold estate are generally void
b. Types:
i. Forfeiture
ii. Disabling
iii. Promissory

II.

Forfeiture
a. Causes forfeiture of the estate if alienation is attempted
i. Ex: O to M, but if she ever attempts to transfer it, to J

III.

Disabling
a. Disables owner by depriving them of any power to transfer the estate
i. Ex: O to M, but no further transfer of the property shall be valid

IV.

Promissory
a. Purports to extract a promise from the transferee that they will not alienate the property
i. Ex: O to A, and A promises not to alienate the property

V.

Total and Partial restraints on a Fee Interest


a. Total- generally void
i. Reasons:
1. economic efficiency
b. Partial- some are valid, but most are void
i. is valid if it is for a reasonable purpose and limited in duration

VI.

Restraints on Life Estates

21
a. Are the most readily upheld, but validity depends on the type of restraint and type of life
estate it is applied to
b. Legal Life Estates
i. Restraint on alienation is to prevent gift of the estate or credit seizure of it
ii. Most courts void disabling restraints
1. some courts will uphold promissory and forfeiture because these
restraints can be released
c. Equitable Life Estates
i. Disabling restraints usually freely permitted
1. ex: spendthrift trust- provides spendthrift relative with an income, but
prevents them from pledging trust assets as security or trying to use it as
collateral to get credit
VII.

Words Stricken in Voiding Restraints on Alienation


a. Words that are stricken matter
b. In 1973 B to S, only so long as it is done by 2003
i. B retains possession (strike everything from to S.)
c. In 1973 B to S, but if S never sells, then B has a right of entry
i. S retains possession (strike everything from but if)
Trusts

I.

Trusts
a. Another way of splitting title
b. Maintains the interests (life estate, future interests) but places an overlay on top of it
i. Trustee- holds a legal title in fee simple absolute
1. can sell, mortgage, rent the property in fee simple to get value out of
property while the life tenant gets income and remainders get propertys
value at the end of life tenants life
ii. in life estate, life tenant and remainder hold equitable title
iii. equitable life estate- life estate in trust that has a trustee holding title fee simple
c. trustee has fiduciary duties to those who have title in equity
i. property in trust is constantly changing because trustee is selling (stocks, bonds,
jewelry) and retaining the proceeds and creating an income stream through
investments for those who have equitable title
ii. property can become income producing

II.

Division of Legal Ownership and Equitable/Beneficial Ownership


a. Central feature of the trust is legal/equitable division
b. How a trust works
i. Trustor (also called settlor) transfers legal title of all his assets to a trustee
ii. Trustee- becomes legal owner of the assets, but is charged with the responsibility
to manage those assets for the economic benefit of the trust beneficiaries, who
have equitable ownership of the assets.

III.

Advantages of the Trust


a. Enables person to place assets in the hand of a property manager who can sell assets and
acquire new ones (adapt to changing conditions)
b. Great flexibility in property management and concentration of assets for the benefit of the
identified beneficiaries for some distance into the future, even beyond life of trustor

22
FUTURE INTERESTS
I.

Future Interests
a. Future interests- interests that are not possessory, but are capable of becoming
possessory at some time in the future
i. it is a presently existing property interest but confers only a future right to
possession

II.

5 Types of Future Interests


a. Retained by grantor
i. Possibility of reverter
ii. Reversion
iii. Right of entry
b. Retained by grantee
i. Contingent remainder:
1. vested
2. contingent
ii. Executory interest
1. shifting
2. springing

Interests Retained by Grantor


I.

Reversion
a. Future interest created when grantor conveys a lesser estate than that he originally
owned
b. Transferability- freely alienable, devisable, descendible
c. Created automatically whenever grantor conveys less than his entire interest in the
property- does not need to be expressly retained
d. Does not necessarily become possessory in the future:
i. Ex: O to M for life, then to A and her heirs if she survives M
e. reversion always follows a contingent remainder
f. a reversion is not created when grantor conveys to one person part of his estate and
simultaneously conveys rest of his estate to another
i. ex: J to E for life, then to R and her heirs
g. always vested: reversions are always vested
i. vested: must be created in a known person and not be subject to a condition
precedent
h. distinguishing between reversion and:
i. right of entry- right of entry applies to FSSCS
ii. possibility of reverter- applies to FSD
i. lapse- future interests can lapse, meaning they are no longer interests

II.

Possibility of Reverter
a. Future interest created when the grantor conveys the same quantity of estate that he
originally had, but conveys it with a determinable limitation attached and retains the
right to future possession if and when the determinable limitation occurs.
i. Ex: B to P so long as it is used a warehouse
1. P- fee simple determinable
2. B- possibility of reverter

23
b. when a determinable estate is created the grantor retains a possibility of revereter, unless
the grantor simultaneously conveys in a third party what would be a possibility of
reverter if retained by the grantor.
i. Would then be an executory interest in the third party
c. transferability- most states today permit a possibility of reverter to be:
i. alienated
ii. devised
iii. inherited
d. possibility of reverter and right of entry can endure forever because:
i. triggering limitation may never occur
ii. both future interests are vested at creation, so they are immune from RAP
III.

Right of Entry
a. Future interest created when the grantor retains the power to cut short the conveyed
estate before its natural termination
i. Ex: H to O, but if property should ceased to be used for pasturing horses, H may
terminate the conveyed estate before its natural termination
b. retained when interest conveyed is a fee simple subject to condition subsequent
c. transferability: jurisdictions today are split over whether to follow common law rule or
to permit free alienability

Future Interests Created in Grantees


I.

Remainder
a. Future interest created in a grantee that will become possessory (if it ever becomes
possessory) upon the natural expiration of the preceding possessory estate
i. Never divests another estate- always accompanies a preceding estate of known or
fixed years (ex: life estate)
b. nature of the estate held in remainder
i. can be any: fee simple, life estate, etc. (be sure to identify both the future interest
and possessory estate)
c. classified as:
i. vested remainders
ii. contingent remainders

II.

Vested Remainders
a. A vested remainder is created if there is:
i. An ascertained (known) person
ii. Possession is not subject to any condition subsequent
b. natural expiration of a preceding estate is not a condition precedent
c. Three types of vested remainders:
i. Indefeasibly vested remainders
ii. Vested remainders subject to complete divestment
iii. Vested remainders subject to open (or partial divestment)

III.

Indefeasibly Vested Remainders


a. Is certain to become both become and remain possessory
i. Nothing will prevent possession from happening, and once possession occurs, it
will last forever within its natural or inherent limits (is not divested)

IV.

Vested Remainders Subject to Complete Divestment

24
a. Remainder created in a known person and not subject to any condition precedent, but
which is subject to a condition subsequent that if it occurs, will completely divest the
remaindermen of his interest
b. Transferability- are still vested and are alienable, descendible, or devisable
V.

Vested Remainders Subject to Open or Partial Divestment


a. Remainder created in a class (or group) of grantees, at least one of who is presently
existing and entitled to possession as soon as the preceding estate expires, but which is
capable of expansion to include as to yet unknown people
i. Ex: R to H for life, then to such of my children who have graduated from law
school
1. once one of the children graduate from law school, it becomes vested,
but it is subject to open
b. vested remainder subject to open are vested even though they are subject to dilution, the
interest will survive its holder
c. when it is ambiguous, courts prefer a vested remainder to a contingent remainder
d. class- is open if it is possible for new people to enter it, and is closed if new entrants are
not possible
i. class-closing rules- when either of two events occurs:
1. no longer physiologically possible to have new entrants
2. rule of convenience applies- that a class closes if any member of the
class is entitled to immediate possession and that result is consistent with
the intent of the grantor making the class gift (when any member can
demand possession)

VI.

Contingent Remainders
a. Remainder created in:
i. Unknown person or has a condition precedent to ultimate possession
b. are not certain to becoming possessory
c. contingent remainder will always leave a reversion in the grantor
d. interest after a contingent remainder must always be a contingent remainder
i. when contingent remainder vests, it becomes an executory interest
e. condition precedent
i. must be expressed in the grant
1. H to A for life, then to E if she graduates from Harvard
a. If she graduates from college is a condition precedent
(contingent remainder)
f. condition precedent v. condition subsequent
i. if condition is made an integral part of the grant in remainder, it is a contingent
remainder. But if the grant uses words to create a vested interest, and then
proceeds to add a divesting condition, it is a vested remainder subject to partial or
complete divestment
g. alternative contingent remainders
i. A to B for life, then to C if she has never gone to Canada, but if she has ever gone
to Canada, to D
ii. Ask when one vests, does the other drop out? if yes, there is alternative
contingent remainder
h. successive contingent remainders
i. ask when one vests, does the other drop out if no, it is successive contingent
remainder
i. transferability: today nearly every jurisdiction permits alienable of contingent interests

25
i. if the contingency is survival, the interest cannot pass by will or intestate
succession, and if the contingency results from the fact that the holder is
unknown there is no owner to convey it, so as a practical matter it is not alienable
VII.

Executory Interests
a. Future interests in a grantee that divest either:
i. Another grantees possessory or future interest (shifting executory interest)
ii. The grantors interest at some future time (springing executory interest)
b. shifting executory interest
i. O to A and her heirs, but if B returns from Canada sometime next year, to B and
his heirs.
1. B- shifting executory interest (can divest As possession)
2. A- fee simple subject to an executory limitation
c. springing executory interest
i. O conveys To A, if an when he marries. A is unmarried
ii. O conveys To A, if and when he becomes a lawyer. A is in high school.

Future Interest Examples


I.

O to A for life, then B.


a. O- holds nothing
b. A- life estate
c. B- indefeasibly vested remainder in fee simple
d. If B has no heirs, vested remainder in fee simple escheats to the State

II.

O to A for life, then to B for life.


a. A- life estate
b. B- indefeasibly vested remainder in a life estate
c. O- reversion in fee simple after consecutive life estate ends
d. Bs future interest lapses when B dies

III.

O to A for life, then to B for life, then to C.


a. A- life estate
b. B- indefeasibly vested remainder in life estate
c. C- indefeasibly vested remainder in fee simple
i. Gets possession after consecutive life estates end
d. if B dies before A, C gets possession after A dies
e. if C dies, it goes to his heirs or devisees or he can transfer it during his life

IV.

O to A for life, then to B if B survives A.


a. A- life estate
b. B- contingent remainder in fee simple
i. Doesnt cut As interest short
c. O- reversion in fee simple
d. If B survives A, Os reversion lapses

V.

O to A for life, then to As first born.


a. A- life estate
b. As first born- contingent remainder (becomes vested remainder in fee simple when As
first child is born- ascertained person)
c. O- reversion until As first born is born

26

VI.

VII.

O to A for life, then to As youngest child.


a. A- life estate
b. As youngest child- contingent remainder in fee simple
c. O- reversion in fee simple if A doesnt have children (common law: reversion lasts until
A dies)
d. Vests in possession
O to A for life, then to B if B attains age 21 before A dies (B is 15).
a. A- life estate
b. B- contingent remainder in fee simple (condition precedent)
c. When B attains age 21, it becomes a vested remainder in fee simple (vests in interest)
d. O holds reversion in fee simple, but once B turns 21 when A is alive, Os interest lapses

VIII.

O to A for life, then to B if B gives A a proper funeral.


a. A- life estate
b. O gets possession between death and funeral
c. B- springing executory interest in fee simple
i. Not a contingent remainder because it can never become possessory upon As
death
d. O- reversion in fee simple subject to an executory limitation when A dies
i. Can become fee simple if B doesnt give a proper funeral

IX.

O to A for life, then to B for life, then to C if C survives A and B.


a. A- life estate
b. B- vested remainder in a life estate
c. C- contingent remainder in fee simple
d. O- reversion interest in fee simple (if C doesnt survive A and B, it reverts back)

X.

O to A, but if B graduates from medical school, then to B.


a. A- fee simple subject to an executory limitation
b. B- shifting executory interest in fee simple (cuts shorts As life estate)
c. O- holds nothing

XI.

O to B upon Bs graduation from medical school


a. O- fee simple subject to an executory limitation
i. Has present possessory interest
b. B- springing executory interest

XII.

O to A for life, then to B if B graduates from medical school


a. A- life estate
b. B- contingent remainder in fee simple
c. O- reversion in fee simple
d. If B dies before A dies and doesnt graduate, reverts back to O
e. If B graduates before A dies, B gets a vested remainder in fee simple
f. If A dies before B graduates, reverts to O and holds a fee simple subject to an executory
limitation and B has a springing executory interest

XIII.

O to A for life, then to As children


a. A- life estate
b. As children- contingent remainder (unascertained and need a condition precedent)
c. When A has a child, As child has a vested remainder subject to open

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i. Class closes at As death
XIV.

O to A for life, then to B, but if B does not survive A, to C.


a. A- life estate
b. B- vested remainder subject to complete divestment
c. C- shifting executory interest
d. If B dies before A, C then has a vested remainder in fee simple

XV.

O to A for life, then to B if B survives A and if B does not survive A, to C.


a. A- life estate
b. B and C- alternate contingent remainders (conditions precedent)
c. O- holds reversion (always hold a reversion when there is a contingent remainder)

XVI.

O to A for life, then to As first child, but if that child does not survive A, then to B
a. Assume A has no children
b. A- life estate
c. As first child- contingent remainder
d. B- successive contingent remainder
i. Vested in interest when As child is born but Bs interest does not drop out
e. Contingent remainder always followed by another contingent remainder
f. When contingent remainder becomes vested, it becomes an executory interest

Possessory Interests in Land


Freehold

Nonfreehold

Present

Future

Later

Fee Simple

(none)

Life Estate

Reversion
Remainder
-vested
-indefeasibly vested
-vested subject to open
-vested subject to total divestment
-contingent
-contingent
-alternative contingent remainders
-successive contingent remainders

Defeasible Fee
-FSD
-FSSCS
-FSSEL

Possibility of Reverter
Right of Entry
Executory Interests
-shifting
-springing

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p. 238
a.

b.

c.

C) O to A for life, then to B and her heirs, but if A is survived by any children, then to such
surviving children and their heirs- A is alive and has two children, C and D
i. A- life estate
ii. B- vested remainder subject to total divestment (with a condition subsequent afterwards)
iii. Surviving children- shifting executory interest that can divest Bs interest
iv. O- retains nothing
v. C and D- doesnt add anything to the problem
B) O to A for life, then to such of As children as survive him, but if none of As children survives
him, to B and her heirs.- A is alive and has 2 children, C and D
i. A- life estate
ii. As surviving children- contingent remainder
1. can only identify at As death
iii. B- contingent remainder
1. when A dies, interest of surviving children vests
2. alternative contingent remainders
iv. O- reversion
1. any time there is a contingent remainder there is a reversion
2. life estate might terminate before the end of As life
A) O to A for life, then to As children and their heirs, but if A at As death is not survived by any
children, then to B and her heirs.- A is alive and has no children
i. A- life estate
ii. As children- contingent remainder
iii. B- contingent remainder
iv. Two years after conveyance, twins, C and D, are born to A.
1. As children- vested remainder subject to open divestment and subject to total
divestment because Bs interest is a shifting executory interest because it is a
divesting interest
v. when no children, it is successive (interest in B did not drop out)
vi. O- no reversion (lapsed when As children were born)

RULE AGAINST PERPETUTITIES


I.

Rule Against Perpetuities (RAP)


a. Rule was needed that would apply to all contingent future interests to prevent uncertainty
about future ownership and possession from continuing so far into the future that land
would become inalienable
b. Certain kinds of future interests are void if there is any possibility, however remote, that
the given interest will vest more than 21 years after the death of a measuring life
c. No interest is good unless it must vest, if at all, not later than 21 years after some life in
being at the creation of the interest
d. How does RAP promote alienability?
i. Limits dead-hand control
ii. Strikes contingent interest
iii. Limits times contingent interests can be contingent
iv. Protection of this generation, plus 21 years

II.

RAP applies to:


a. Contingent remainders
b. Executory interests
c. Vested remainders subject to open
i. Class gifts

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d. Options/rights of first refusal
III.

RAP does not apply to:


a. Present possessory estates
b. Vested remainders
c. Reversionary interests: are deemed vested
i. Possibility of reverter
ii. Reversions
iii. Right of entry

IV.

Brief Summary of the Rule


a. Vest- RAP is designed to eliminate uncertainty about ownership that persists too long
i. If an interest is certain to vest or certain not to vest within the permitted period
it is good
ii. If there is any possibility, no matter how unlikely, that vesting could occur after
expiration of the permitted period the interest is void
iii. An interest is vested in RAP when it is either vested in possession or vested in
interest
b. Permitted Period of Uncertainty
i. An interest is good if it will vest or certainly vail to vest within:
1. 21 years from its creation, or
2. during the life of some person alive at its creation, or
3. upon the death of some person alive at its creation, or
4. within 21 years after the death of some person alive at its creation
ii. RAP requires you to identify some person, living on the effective date of the
grant, whose live can serve as the validating life for the interest in question
c. Validity Tested at Creation- validity of future interests under RAP is tested when they are
created
i. If you can prove it is certain to vest or fail to vest within the permitted period, it
is valid
ii. If you can prove a single scenario, no matter how remote, in which vesting may
occur after period, the interest is void
d. class gift- for purposes of RAP, a gift to a class of people is not vested in any member of
the class unless it is vested in every member of the class. Thus,
i. the class must be closed and
ii. Any conditions precedent must be satisfied by every member of the closed class

V.

Validating Lives
a. To validate future interests under RAP, you must prove that the interest is certain to vest
or fail to vest within the lifetime of one or more person alive when the grant becomes
effective, or within 21 years after the death of that person or persons
b. Lives in being, plus 21
c. Look for Validating Life Among these 4 categories of persons:
i. Preceding life tenant
ii. Taker of contingent interest
iii. Person who affects condition precedent
iv. Person who affects identity
d. Life must be relevant to the interest in question
e. Can name people and you wont get into any problems
f. Base it on a popular family

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i. O to my lineal descendants alive 21 years after death of last Rockefellar alive at
time interest was made dies
ii. Way to get around dead hand control
g. A person in a life in being if in utero at the effective date of the grant
h. Class of persons as measuring lives: every possible member of the class must be alive at
the effective date of the grant (class must be closed)
VI.

Charity-To-Charity Exception
a. An executory interest following a defeasible fee is exempt from the RAP if the defeasible
fee and the following executory interest are both owned by charities

VII.

Classic Traps Under RAP


a. Fertility- RAP presumes that a person of any age, whether male or female, can produce a
child
b. Unborn Widow- a bare reference to As widow is construed to refer to the unknown
person who answers that description on As death not necessarily the person who is As
wife when the instrument is drafted

VIII.

Applicability of RAP to commercial transactions


a. The Symphony Space, Inc. v. Pergola Properties, Inc.
i. Common law approach to commercial options
ii. In 1978, Broadwest sold a building in Manhattan to Symphony for much less
than its real value, in return for which Broadwest leased much of the building for
a nominal rent and obtained an option to purchase the building, exercisable at any
time until July 2003
1. why have option exercised at intervals? To see if property will improve
over time
iii. SS Lawyer realizes the option can be exercised after 21 years
iv. Must vest or fail to vest within 21 years
v. Court applied RAP to commercial options, and because it could be exercised
after 21 year period, it was void
vi. Theories:
1. no incentive to improve building
2. foreclosed sale to someone other than optionee who could make better
use of the land

IX.

Uniform Statutory Rule Against Perpetuities (USRAP)


a. Adopted in 25 states- exempts options and other commercial transactions form the RAP

X.

RAP and Commercial Transactions and Corporations


a. No lives in being formula, so it only has a 21 year window
b. Options to purchase- holder of option decides when it can vest (acts like a right of entry,
but right of entry not subject to RAP)
c. Rights of first refusal- requires the owner, if and when she decides to sell, to offer the
property first to the holder of the right
d. In most cases, options to purchase and rights of first refusal are subject to RAP
e. Disincentives to options:
i. Lack of incentive for property owners to improve the property (dont know how
long they will have to give it up)
ii. Options existence likely forecloses sale to others

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XI.

RAP Reforms
a. Wait and see doctrine- evaluates the validity of future interests under RAP as events
unfolded, not at the time of creation of the interests
i. Focus is on what actually happens, not on what might happen
ii. Eliminates what if or anything is possible line of inquiry
b. USRAP- provides for waiting for a maximum of 90 years after the creation of the interest
to see if it has vested
c. Cy pres- judicial reformation
d. NJ repealed RAP by statute

XII.

Savings Clause
a. Savings clause- designed to terminate the trust, and distribute the assets, at the expiration
of a specified measuring life plus 21 years, if the trust has not earlier terminated

RAP Examples (also get questions from p.248-49)


I.

Obvious Remote Vesting


a. Ask: can it vest hundreds of years from now?
b. O to A, but if liquor is ever sold on the premises, then to B
i. A- FSSEL (condition subsequent)
ii. B- shifting executory interest (divests As interest)
iii. B can take possession within any period of time, so Bs interest is void
1. potentially infinite
iv. O to A remains (left with fee simple absolute)- everything else is stricken
v. How to get around it:
1. O to A, but if liquor is ever sold on the premises, O has right of entry
a. Can sell right of entry to B
c. O to Charity A, but if liquor is ever sold on the premises, then to Charity B
i. Charity-to-charity exception
ii. If one isnt a charity, it doesnt apply
d. O to A upon completion of the office tower
i. O- present possessory interest (fee simple subject to an executory limitation)
ii. A- springing executory interest
iii. Void- never says period of time it must be completed
iv. O retains fee simple absolute
v. Could have said if completion is done within 21 years
e. O to A for so long as liquor is never sold, but if it is sold, then to B
i. A- fee simple determinable
ii. Void- never says B will vest or not vest within 21 years
iii. O- possibility of reverter

II.

Preceding Life Tenant


a. O to A for life, then to first child of A- assume A has no children
i. A- life estate
ii. First child of A- contingent remainder in fee simple (unascertained)
iii. O- reversion in fee simple
iv. Valid- interest of first child of A will vest or fail to vest within As lifetime or at
the death of A at the very latest
1. contingent remainder will turn into a vested remainder
b. O to A for life, then to As children who survive A
i. A- life estate

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ii. O- reversion in fee simple
iii. As children who survive A- contingent remainder in fee simple
iv. Valid- know As children who survive A at As death
1. becomes vested at As death
c. O to A for life, then to As children who reach 21.
i. A- life estate
ii. As children who reach 21- contingent remainder in fee simple
iii. Valid- If she has kids, they will surely reach 21 within 21 years after As death
(will vest)
iv. If she had kids who reached 21 and A is still alive, it is a vested remainder subject
to open
d. O to A for life, then to As children who reach 25.
i. A- life estate
ii. As children who reach 25- contingent remainder
iii. O- reversion in fee simple after As death
iv. Void- may not vest within 21 years after As death
1. can turn 25 outside lives in being, plus 21
e. O to A for life, then to As children who graduate from college.
i. A- life estate
ii. As children who graduate from college- contingent remainder in fee simple
iii. O- reversion in fee simple
iv. Void- possibility of vesting or not vesting 21 years after As death
v. Even if some children graduate, it is a vested remainder subject to open
vi. Could say to As children who graduate from college within 21 years of As
death
III.

Taker of Contingent Interest


a. O to A for life, then to B if B reaches 50 B is 2 years old
i. A- life estate
ii. O- reversion in fee simple
iii. B- contingent remainder in fee simple
iv. B is the validating life
v. B is alive at the time of the grant and will either turn 50 or die before turning 50
1. will happen, if it does, when B is alive
2. will know within 21 years after Bs death- valid

IV.

Person Who Affects Condition Precedent


a. O to A for life, then to B if C graduates from medical school
i. A- life estate
ii. B- contingent remainder in fee simple (condition precedent- cant vest until C
graduates from medical school)
iii. O- reversion in fee simple
iv. Run A, B, C through lives in being, plus 21 test
1. will Bs interest vest or fail to vest during As life, at death, or 21 years
after As death? Dont know
2. will Bs interest vest or fail to vest during Bs life, at death, or 21 years
after Bs death? Dont know
3. will Bs interest vest or fail to vest during Cs life, at death, or 21 years
after Cs death? Yes
a. C is the validating life
v. valid

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vi. when A dies, B holds springing executory interest
V.

Person Who Affects Identity


a. O to A for life, then to Bs children- assume B has no children
i. A- life estate
ii. O- reversion in fee simple
iii. Bs children- contingent remainder in fee simple
1. if child is born, it becomes a vested remainder subject to open
2. know who all the children are when B dies and interest vest
iv. when parent dies, everyone is identified
1. at Bs death, Bs children becomes known

VI.

Afterborn Problem
a. If you realize you cant have a validating lift because of an afterborn, it is void
i. Precludes the validating life
b. When it is void, you strike the portions that are void there are previous grants that are
valid
c. T to my grandchildren who reach 21- assume no grandchildren valid
i. T- testator (operative when testator dies)
ii. Grandchildren- springing executory interest
iii. Testator- fee simple subject to an executory limitation
iv. How to get the validating life- persons affecting the identity of the taker- Ts
children
v. Last of Ts grandchildren will or will not turn 21 within 21 years of the last of Ts
childrens death (know whether it will vest or not)
vi. Ts children are known at Ts death and the grandchildren are known at Ts
childrens death
d. O to my grandchildren who reach 21- void
i. O- gives deed inter vivos (operative upon delivery)
ii. Life in being has to be alive when transfer becomes effective
iii. O might have another child before death (X)
1. child born to X may or may not turn 21 within 21 years of the delivery of
the deed
2. Os new child would not be tied to 21 year formula so those born after
grant are not in grant and it is void
e. O to my grandchildren born to my children A and B who reach 21- valid
i. A and B are defined children and close that class
ii. A and B are the validating lives
iii. The children born to A and B will be known when the last of A and B die, and
will turn 21 before A and Bs death, at their death, or 21 years after the last of
their deaths.
iv. Defined children helps remove the afterborn problem
f. T to A for life, then to As children for their lives, then to Bs children- valid
i. B- validating life
ii. Will know Bs children at Bs death (vests in interest after being a contingent
remainder)

VII.

P. 249- Problems and Notes


a. 6. T to A for life, then to As children for their lives, and upon the death of A and As
children to..
i. B if A dies childless- valid

34
1. vests at As death (know if A has any children)
ii. B if A has no grandchildren then living at the time of As childrens deathvoid (afterborn problems)
1. void because we dont know if all of As children have been born
a. can have a child after the devise so it wouldnt satisfy lives in
being, plus 21
b. no validating life- no way to tie Bs vesting to As children
iii. Bs children then living- void
1. doesnt vest in possession until all the life estates prior or over- last one
is at the time of As childrens deaths
2. The words "then living" refer to the time when the life estates of A's
children have ended, but this class of A's children is not closed when the
devise is made. There could be afterborn children whose life estates end
well after a period of lives in being plus 21. That would mean the
contingent remainder in B would be vesting remotely.
CONCURRENT OWNERSHIP
I.

Concurrent Ownership
a. Concurrent ownership- when same interest in property is owned by more than one
person at the same time
b. 5 forms (we study only main three)
i. Tenancy in common
ii. Joint tenancy
iii. Tenancy by the entirety
iv. Co-parency
v. Tenancy in partnership

II.

Tenancy in Common
a. Tenants in common own separate but undivided interests in the same interest in property
b. Each tenant owns the entire property, but must necessarily share that ownership with the
other tenants in common
c. Transferability
i. Alienable
ii. Descendible
iii. Devisable
d. Rights to Possession
i. Unity of possession: Each tenant in common is entitled to possess the entire
property
1. ex: a 50% or 1% owner of property in common can use the entire
property
e. Presumption of tenancy in common:
i. By statute or judicial decision, a conveyance of real property to two or more
persons who are not married to each other is presumed to convey a tenancy in
common when there is ambiguity (presumption is rebuttable)
f. Examples:
i. O to A and B- tenancy in common in fee simple

1. if A conveys As ownership to C, it means that B and C are now


concurrent estate owners in common

35
2. if B dies without a will, it goes to Bs heir- C and Bs heir are 50,
50 owners
ii. O to A for life, then to B & C
1. concurrent interests can live in the future interest world
2. B & C- vested remainder in fee simple held as tenant in common
iii. O to A for life, then to As children
1. As children- contingent remainder in fee
2. when one child is born, it is a vested remainder subject to open
3. more than 1 child- vested remainder subject to open in fee simple
held as tenancy in common
g. no survivorship rights- no survivorship rights among tenants in common- may be
alienated, devised, or inherited separately from the other tenancy in common interests
h. can cause problems:
i. concurrent owners may not like each other after property is passed down
i. if it is an intestacy (no will), it will be a tenancy in common
i. in joint tenants you need language to create a joint tenancy so the language is not
created to create a joint tenancy because there is no language
j. Why prefer a tenancy in common
i. Promotes alienability
ii. Survivor determines the disposition of the property in the end in a joint tenancy
III.

Joint Tenancy
a. Joint tenants own an undivided share in the same interest in property, but the surviving
joint tenant owns the entire estate
b. Right of survivorship- hallmark of joint tenancy and main difference with tenant in
common.
i. Upon the death of one tenant, the share held by the remaining joint tenants
increase proportionately
ii. Both hold 100% interest
iii. Ex: A and B own equal interest in property as joint tenants; If A dies, B takes
possession of the entire property and As interest (joint tenant simply drops out of
ownership unit)
iv. Right of survivorship is not a future interest (it is a mere expectancy and a
gamble)
c. Creation of Joint Tenancy:
i. Can only be created by inter vivos conveyance or a will
ii. Property acquired by multiple heirs through intestate succession is taken as
tenants in common.
iii. A tenancy in common is presumed, unless there is clear evidence of joint tenancy
iv. Modern presumption can be overcome only by a clearly expressed intention in
the grant itself
1. O to A and B as joint tenants with the right of survivorship (anything
less than this phrase, it is likely presumed to be tenancy in common)
d. Not Subject to Probate- an expensive, cumbersome, time-consuming judicial procedure
to transfer a decedents property
e. Creditors of a joint tenant must seize and sell the debtors joint tenancy interest during
the debtors life because the joint tenant debtors interest disappears at his death
f. Evidence insufficient to form a Joint Tenancy:
i. To A and B as joint tenants

36
ii. To A and B jointly
iii. To A and B as joint tenants, then to the survivor and her heirs
IV.

Four Unities of Joint Tenancy- interests of joint tenants must be equal in every respect
a. a. If 4 unities are not satisfied, a tenancy in common is resulted
b. Four unities must be meant; All Joint Tenants must their interests:
i. at the same time
1. must receive their interests at the same moment in time
ii. under the same instrument
1. must receive their interests under the same instrument: a deed, a will, or
a decree quieting title by joint adverse possession
iii. with the same interests
1. means two things:
a. each joint tenant must have same share of undivided whole
i. ex: 2/3 to J and 1/3 to B- tenants in common
b. each joint tenant must have the same durational estate
i. ex: O to A, and to B for life (is a tenant in common- not
a joint tenant)
1. cant have one in fee simple and one in life est.
iv. with the same right to possession of the entire property
1. each tenant must have the right to possession of the whole property
a. tenancy in common only shares unity of possession

V.

Joint Tenancy Examples


a. O to A & B as JTWROS- valid
b. O to A for life, then to B & C as JTWROS- valid
i. If B dies, C gets Bs interest and possesses the whole interest
c. O to A for life, then to As children [as JTWROS]- void
i. As childrens interest vests when A has a child
ii. Doesnt meet unity of time- must be acquired or vest at the same time
iii. Could say then to As children who survive A- cant vest until As death
iv. If you cant meet the 4 unities, you cant make a joint tenancy

VI.

Severance of a Joint Tenancy


a. Can sever a joint tenancy
b. Destruction of any of the four unities severs a joint tenancy
c. Conveyance: if a joint tenant conveys his interest to a third party or to another joint
tenancy, the joint tenancy is severed as to that interest
i. Ex: A, B, C are joint tenants. A conveys to D. D has a tenancy in common with
B&C. B&C still have their joint tenancy.
d. Joint tenancy is easily severable- turning a joint tenancy into a tenancy in common
i. At any time during their lives, A or B can convey their interest to a third party
(X), and then then the joint tenancy becomes broken/severed
1. if A conveys interest to X, X and B own it as tenants in common
ii. straw man- middleman of sorts used historically for an individual to beat the
system unilaterally severing a joint tenancy
1. ex: A & B have a joint tenancy. A wants to sever it into a tenancy in
common. If A couldnt do it unilaterally, she could convey her interest to
C, severing the joint tenancy. C can then convey it back to A.
e. could be through sale, partition, or mortgage
f. can not waive power to sever joint tenancy

37
i. if there is a promissory restraint, it is a restraint on alienability
g. Power to sever is:
i. Pro-alienability
ii. Can sever a joint tenancy and make it a tenancy in common
iii. Can sever it unilaterally (Riddle v. Harmon)
h. Example:
i. O to A & B as JTWROS
1. A conveys to X (severs)= X & B are tenants in common
2. A can also just sever it into a tenancy in common unilaterally
VII.

Tenancy by the Entirety


a. Form of joint tenancy only available to a husband and wife
b. Like a joint tenancy, each tenant has a right of survivorship
c. Usually need four unities, plus marriage
d. Tenancy by the entirety may not be severed
e. Today, married are presumed to take either as tenants by the entirety or as joint tenants

VIII. Problems- p. 278


1. O to A, B, & C as JTWROS
v. 1/3 shares in each
vi. A conveys his 1/3 to D
1. D becomes tenant in common with B & C
2. Doesnt destroy joint tenancy of B & C (still hold as joint tenants)
vii. D is a tenant in common(1/3) with (joint tenancy of B & C) (2/3)
viii. If B dies, C takes interest of Bs whole
1. D & C then hold fee simple as tenants in common
2. T to A & B as joint tenants for their joint lives, then to survivor.
ix. Life estates in A & B
1. Contingent remainder- wont know survivor until one dies where it will
vest for the other
x. How is it different than joint tenancy
1. Cant sever in this example (you could in #1)
xi. if A conveys life estate to C (pur autre vie) and B dies, A will own the fee simple
1. C only gets limited life interest of A
2. if A conveys life estate to C, C shares it with B
3. tenancy by the entirety joint tenancy plus marriage
xii. Have to take title when they are married
xiii. Normally, partition is not available during tenancy by the entirety because it is
not severable unless both parties agree
xiv. Since they were not married when they took title, it will either be a JT or TC, so
unilateral partition is possible
xv. If they werent married when they got title, they could use a strawman
1. A & B to X
a. X is the strawman
2. X to A & B as tenants by the entirety (new effective deed)
VIII.

Riddle v. Harmon- Unilateral severance


d. Rule: A joint tenant may unilaterally sever the joint tenancy without the use of an
intermediary device (at least in California)

38
e. California court of appeals held that Frances Riddle could validly sever the joint tenancy
with her husband, Jack, by a conveyance from herself as a joint tenant to herself as a
tenant in common with Jack
i. When Frances was dying, she wanted to terminate it so Jack wouldnt get right of
survivorship
ii. Wants to create tenancy in common so she can control (devise) her portion of the
property
f. Lawyer makes unilateral severance
i. Riddle (grantor) as Joint Tenant -> Riddle as Tenancy in Common
1. lower court says she should have used a straw man
2. court of appeals say lower courts relying on history is dumb
g. Takes a realistic view of severance and elevates the intent of the grantor to prominence
h. Did away with requirement for both creating and severing joint tenancies
i. what you can do with 2 instruments you can now do with 1 if the intent is clear
i. Possibility of injustice:
i. Jack probably never knew joint tenancy was severed
ii. Frances could sever it, never tell Jack, Jack could die, and Frances could act like
she didnt sever it
iii. If Jack didnt know, he may not be able to direct where he wants his estate to go
j. why do we not require notification?
i. Inherent in very nature of the type of estate
ii. Could be a restraint on alienation- ppl may be afraid to sever if they have to give
notice
k. if they wanted an inseverable estate, they could have:
i. tenancy by the entirety
ii. joint life estate with a contingent remainder in fee to the survivor
iii. fee simple to take effect in possession in the future
1. springing executory interest
iv. a tenancy in common in fee simple with an executory interest in the survivor
l. if one of tenants in common sells present estate, they sell their fee simple subject to an
executory limitation and person who gets it either has a fee simple or loses
****NOTE: Future Interest and Estates Examples- Makdisi
Partition
I.

Partition
a. Can apply to both Joint Tenancy and Tenancy in Common
i. A tenant by the entirety cannot demand partition
b. Pro-alienability
c. Can seek partition unilaterally
d. Partition- a joint tenant or a tenant in common may demand partition of the property at
any time and for any reason, or for no reason at all.
i. Apart from an agreement by the parties, a partition is accomplished by a suit in
equity
1. agreement not to partition is enforceable if:
a. it clearly manifests intent not to partition
b. duration is limited to a reasonable period of time
ii. two types of partition:
1. partition in kind
2. partition by sale

39

II.

Partition In Kind
a. Physical division of the property
i. Instead of owning 50-50 of the whole, they own 100% of a half
ii. By court order, destroys concurrent ownership and makes each party a 100%
owner of a smaller geographical area
iii. Rural undeveloped land is the most likely candidate for physical division
b. Courts will order partition in kind unless a party can prove either:
i. Physical partition is impossible or impracticable
1. ex: single family house- cant physically divide property
ii. Physical partition is not in the best interest of all the parties
1. best interest- evidence includes economic costs/gains, and also subjective
costs as well
c. Delfino v. Vealencis
i. Helen Vealencis owned 20.5 acres as a tenant in common with Delfinos
1. Helen used a portion of property and operated a garbage hauling business
on it
2. Delfinos wanted to develop the property into single family residences so
they demanded a partition by sale
3. Helen wants to keep property because of her business and sentimental
value of living their for so long
ii. evidence suggested total value of property would be maximized by partition by
sale
iii. court held that it was not in the best interest of all the parties to do p by sale
1. value of Helen of continued possession was sufficient that partition in
kind should be ordered
iv. owelty- the difference which is paid or secured by one cotenant to another, for the
purpose of equalizing a partition
1. requirement to compensate others for adverse impact of her garbage
operation on their proposed subdivisions
2. attempts to make interests roughly equal
v. Helen ends up with (1/3) : 1 acre, biz, home ($72,000-26,000 owelty payment$46,000)
vi. Delfino (2/3)- 19 acres sell for $725,000+26,000 owelty= $751,000

III.

Partition by Sale
a. Even though it is not the most favored by courts, it is probably the most common method
of partition
i. Presumption- presumption by the court is that it will be partition in sale
ii. Generally, keeping parcel large rather than dividing it up makes it more valuable
b. After a partition by sale, the net proceeds are divided among the co-owners in proportion
of their ownership interests
i. $ divided by their share

Sharing the Benefits and Burdens of a Co-Ownership


I. Rents, Profits, and Possession
1. Each co-owner has the right to possess the entire property and
2. ex: cutting of timber (depends so long as they dont cut more than their
share)
b. no co-owner may exclude his fellow co-owners

40
c. Exclusive possession by one co-owner- because each co-owner has a right to possess all
of the property, exclusive possession by one co-owner is presumptively valid
i. Rental value of exclusive possession
1. majority rule: cotenant in exclusive possession has no liability for her
share of rental value unless:
a. other cotenants have been ousted, or
i. ouster- occurs if a tenant in exclusive possession either:
1. denies physical entry by a cotenant
a. ex: changing locks
2. denies cotenants claim to title
3. as long as cotenant doesnt bar access or deny
title, they dont owe rent because they own the
right to the whole thing
4. other ouster situation: beginning of running of
statute of limitations for adverse possession
b. cotenant in possession owes fiduciary duty to other cotenants, or
c. cotenant in possession has agreed to pay rent
2. majority rule premised on the fact that the tenant is entitled to possession
3. Spiller v. Mackareth
a. P and D owned a commercial building as tenants in common
i. They have unity of possession
b. Spiller took possession of entire building and used it as a
warehouse after its tenant left
c. When tenant pays rent, they split it 50-50
i. If a landlord refuses to split it, they can go to court
through accounting
d. Mackareth demanded that Spiller:
i. Vacate half the building or
ii. Pay rent
iii. Basically, he wants to be in the same position as if there
was a real tenant
e. Mackareth couldnt trigger ouster because:
i. Spiller never denied Mackareth physical entry and never
claimed that Mackaerth wasnt an owner
4. minority rule- cotenant in exclusive possession is liable to cotenants out
of possession for their share of fair rental value unless there has been an
agreement among the party to excuse the tenant in possession from this
obligation
d. Rents from third parties
i. Cotenant who receives rents on the property from a third party is obligated to
account to his cotenants for those rents.
ii. If the rents or other income received by a cotenant are greater than the cotenants
share, he is obligated to pay the excess to the other tenants
e. Profits from the Land
i. If a cotenant permanently removes an asset from the land he must account to his
cotenants for this reduction in value
ii. ex: if minerals are removed, cotenant must pay to the other cotenants their
proportional share of the value of the removed minerals
II. Swartzbaugh v. Sampson

41
a. John and Lola Swartzbaugh owned in joint tenancy a 60 acre orchard. John leased 4 acres
to Sampson (conveyance of possession) who constructed a boxing pavilion
i. Joint tenancy, plus tenancy
ii. A lease does not sever a joint tenancy
iii. Lola tried to cancel lease
iv. Court denied her- a lease by a single joint tenant to a third party is not a nullity
but it is a validcontract in so far as the interest of the lessor in the joint
property is concerned
b. Lolas other options:
i. Outster- demand to be let into possession of the pavilion
1. monetary remedy
2. could get value of reasonable rental value
ii. accounting- demand and receive half the rents received by John from Same
1. in this case, however, she affirms the lease and becomes a landlord
iii. partition the leasehold
1. partition by sale- can sell the whole thing and get half value of
undeveloped property; then have to make adjustments for value of lease
2. partition in kind
iv. sever the joint tenancy
v. profits- for the loss value of the walnut trees cut down
1. when a cotenant depletes the value of land from agricultural uses, they
are liable for money damages
2. cotenant cant prejudice the value of the land and damage other tenants
interest (negative land use externalities)

III. Accounting for Costs of Ownership- read p. 308-310


a. Rules that govern if you dont have a contract with cotenant
b. Mortgage Payments
i. Interest- each is required to pay their proportionate share of interest
1. a cotenant who pays more than their share can be reimbursed
immediately, upon partition, or within limitations period following end
of co-tenancy
ii. Principal- each obligated to pay proportionate share of principal; if A makes the
payments of the mortgage, or pays more than their share, A can sue B for
contribution
iii. Unless A lives on property and uses it as his primary residence
1. value A is getting when B is out of possession is seen as equal to tax and
mortgage payment (dont want a windfall)
c. Taxes
i. Each is obligated to pay their proportionate share of taxes
ii. A cotenant who pays more can recover the excess from fellow cotenants through
contribution, partition, during tenancy, or within limitations period
d. Repairs
i. Cotenant has no obligation to repair his property
1. but repairs can be repaired (see below)
ii. A cotenant who voluntarily repairs the property may not force his cotenants to
reimburse him for their share of the repairs, but the repairing cotenant can
recover those excess repair costs in two situations:
1. accounting- if repairing cotenant is required to account to his fellow
cotenants for rent, he can deduct from rents due the other cotenants their
share of the repair costs incurred by repairing cotenant

42
2. partition- repairing cotenant is entitled to be reimbursed for the repair
costs in excess of her share
a. partition by sale- will be cash reimbursement
b. partition in kind- either receive cash reimbursement from other
cotenants before physical division or receive a larger parcel
e. Improvements
i. No cotenant is under a duty to improve property
ii. Improving cotenant may not recover from fellow cotenants her pro rata share of
the cost of the improvements
1. no credit for the cost of improvements is given as such in an accounting
or partition action
2. ex: A builds house on vacant land; A has no right of contribution from B
iii. if property is physically divided pursuant to a partition action, the improved
portion is awarded to the improving cotenant
iv. upon partition or if the improving cotenant is under a duty to account to cotenants
for rent, the improving cotenant is entitled to recover only the value added by
the improvement, not the costs of the improvement
1. Attendantly, at partition, the so-called improver bears full liability for
any diminution in value caused by her efforts
f. Adverse Possession
i. Cotenants can occupy adversely to their fellow cotenants, but the cotenant must
be absolutely clear and unequivocal in notice that he claims exclusive and sole
title in order for adverse possession to begin (nothing else will do)

LEASEHOLD ESTATES
Interests in Real Property
Possessory
Freehold

Nonfreehold

Fee Simple
Defeasible Fees
Life Estate
[Life Estate Determinable]

I.

Non-Possessory
Covenants
Easements
Licenses (sometimes)

Leaseholds
Term of years
Periodic tenancy
Tenancy at will
Lease duration based on parties intentions- Garner

What makes it a lease?


a. Gives the leaseholder the right to exclusive possession for the duration of the term
b. Has all the legal rights of a possessor and may sue others for invasion of possessory
interest, such as through ejectment, trespass, or nuisance
c. Contemporary and Traditional View of Leases
i. Traditional- tenant has the obligation to pay rent no matter what, and the landlord
has the right to retake possession only if the tenant defaults in paying the rent
ii. Contemporary (Contract)- promises are mutually dependent

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d. leaseholds- type of leasehold depends on the duration of the estate
i. are not only conveyances, but contracts as well
ii. 3 types:
1. term of years
2. period tenancy
3. tenancy at will
II.

Term of Years
a. Term of years- is a lease for a single, fixed term for any length
i. Term must either be clearly set out in the lease or by reference to a formula that
will produce a fixed calendar date for the beginning and end of the leasehold
ii. Can be any length- month, 10 years- so long as the period is fixed
iii. Terminates on its own- no notice is needed
b. a term of years can be defeasible, either determinable or subject to a condition
subsequent
c. examples:
i. O to A (fs)
1. A (ll) to Tenant for 5 years
a. A holds a reversion
2. A (ll) to Tenant for 5 years, then to B for 5 years
a. A holds a reversion and B holds a remainder
ii. if A sells the property to someone else during the lease (C), C has to follow the
lease terms and gains As reversionary interest
iii. A (ll) to tenant for the duration of the war
1. courts are split- some hold it as tenancy at will and some hold it as a term
of years
d. no change in terms in intestacy, devisee, or inter vivos transfer
i. ex: if A dies with a will, A1 (devisee) follows terms

III.

Periodic Tenancy
a. Periodic tenancy- leasehold for a recurring period of time, such a month to month or
year to year
i. Continues in existence on its own until either landlord or tenant gives advance
notice to the other party of termination of the lease
1. common law requires at least 6 months to terminate year-to-year tenancy
2. common law requires notice equal to the length of the period (but not
more than 6 months) for periods less than a year (ex: a month to
terminate a month-to-month)
b. Examples
i. O to A (fs)
1. A (ll) to Tenant for year to year (month to month)
2. A (ll) to Tenant for an annual rent of $12,000 payable in monthly
installments of $1,000
a. Courts will usually hold this as a year to year unless intentions of
the parties indicate otherwise
c. no change in terms in testacy, devisee, or inter vivos transfer
i. death has no impact
d. Notice to Terminate
i. Common Law
1. 6 months advance notice necessary to terminate a year-to-year tenancy

44
2. notice equal to the length of the period (but not more than 6 months) is
necessary for periods less than a year
3. notice is only effective at the end of the period
e. Fixing the Period of Periodic Tenancies Created by Operation of Law
i. If person takes possession of a long-term lease void under the Statute of Frauds
(not in writing), but has paid rent, most courts conclude that it is a year to year
lease
1. some determine by the rent calculation in the void lease
2. some courts measure the period by the way rent is actually paid
IV.

Tenancy at Will
a. Tenancy at will- leasehold for no fixed time or period
i. Lasts as long as both parties desire
ii. Either party may terminate it by any time or by operation of law
1. a unilaterally terminable lease cannot be a tenancy at law- it is a
determinable tenancy
2. Garner v. Gerrish
a. Donovan leased house to Gerrish and the lease stated that
Gerrish has the privilege of terminating this agreement at a date
of his own choice
b. Donovan died; his executor wants to terminate lease (thinks it is
a tenancy at will)
c. Court construed the lease to carry out the intentions of the parties
decided that it created a life estate terminable at the will of the
tenant
b. death of either landlord or tenant terminates the tenancy at will
i. if A dies, and B takes possession, B can immediately terminate the lease
c. Termination
i. By parties:
1. a landlord terminates by giving notice
ii. Operation of Law: if either party dies, if the tenant attempts to assign his tenancy,
or if the landlord conveys his interest, a tenancy at will is terminated by operation
of law

V.

Problems- p. 364
a. 1. term of years lease; LL has no rights (terminates automatically)
b. 2. periodic tenancy; landlord is entitled to 6 months notice b/c it is a year to year lease
and no notice was given
c. 3. periodic tenancy; can be year to year or month to month (a lot of options depending on
the jurisdiction)
i. Would have to pay for December- needs to give a months notice and is effective
from the end of that month (not on hook for jan, feb, march, etc.)

VI.

Tenancy at Sufferance (holdovers)


a. Not really a tenancy like the other 3- will always in the end resemble one of the 3
i. Not a real tenancy because landlord has not consented to their occupation
b. Holdovers- tenants who remain in possession after their right to do so has expired
i. When they do so, it creates a tenancy at sufferance
ii. Must be voluntary
1. if they are in continued possession b/c of circumstances beyond their
control, they are not treated as holdovers (ex: sick, injured, etc.

45
c. Landlord has 2 options for a Tenancy at Sufference: must be exercised in a reasonable
period of time:
i. Eviction and recovery of damages for lost possession
1. treating them like a trespasser
2. can recover damages measured by the reasonable value of the use of the
property for the holdover period, plus any special damages
a. original rent is presumptive evidence of fair market value (can be
rebutted)
ii. binding the tenant to a new term
1. hold him as a tenant to the terms of the existing the lease
2. deters holdovers, which benefits tenants generally because a new tenant
places a great deal of reliance on old tenants timely departure
a. half jurisdictions follow rule that as long as LL gives new tenant
legal right to be on the property, that is enough and it is the new
tenant who has to seek eviction of the holder (legal possession
theory)
b. other half says LL has to give actual physical possession of the
place for rent obligation to start (actual possession theory)
3. most treat new tenancy as a periodic tenancy, and some treat it as a term
of years for a maximum of 1 year
a. some courts determine terms length by the way the rent is stated
in the old lease
d. election is irrevocable- the landlord cannot change his mind after he makes his decision
i. Crechale & Polles, Inc. v. Smith- P leased premises to D for 5 years; before
expiration of the term, Smith wanted an extension for a short-term to
accommodate his relocation
1. Crechale denied the extension and demanded Smith vacate; Smith stayed
for a month, sent a rent check, and Crechale cashed it
a. Crechale then said he was renewing for a term of years
2. Court held that Crechale first decided to treat Smith as a trespasser and
terminate the lease. The subsequent acceptance of the rent created a
periodic tenancy
3. cant change your mind after you make a decision
SUBLEASES AND ASSIGNMENTS
I.

Assignments and Leaseholds


a. Assignments- places assignee in privity of estate with owner and are liable to each other
for performance of the lease obligations that run with the leasehold estate
i. Does not destroy privity of contract- contractual duties created by a lease
continue to be personal obligations of the original parties even after assignment
b. Sublease- does not create privity of estate between landlord and subtenant
i. Subtenant is only liable to the tenant for lease obligations
ii. No privity of contract either because contractual relationship is between
subtenant and tenant

II.

Assignment
a. Assignment- Transfer of the partys entire interest under the lease for the rest of the
specified term
i. Tenant retains no interest
b. can be freely conveyed- alienable

46
c. privity of estate- assignment places assignee in privity of estate with original party
(landlord)
i. ex: L to T, T assigns to T1; T1 and L are in privity of estate
ii. assignee is obligated to perform all the lease covenants that run with the estatereal covenants (ex: promise to pay rent, make repairs, etc.)
iii. allows landlord to sue assignee under privity of estate
iv. personal promises- do not run with assignment
1. promisor (prior tenant) remains obligated to perform even after
assignment, unless he is released from the obligation
d. privity of contract- assignment does not destroy binding effect of contractual promises as
personal obligations; does not destroy privity of contract between landlord and original
tenant unless they are released of obligations
i. release and novation:
1. landlords consent and acceptance of assignment does not constitute a
release of tenants obligations under the lease
2. novation- express release, when coupled with the promise by assignee to
assume performance, is clear evidence of intent of landlord to release
tenant
a. tenant is then no longer in privity of contract with landlord, so
tenant is no longer liable to landlord
b. gets original tenant off the hook
c. dont really use in sublease situation
ii. assumption
1. assumption- assumption of performance of the lease obligations can
occur without release, and puts both the original tenant and assignee in
privity of contract
a. ex: L to T, T to T1 (assignment and assumption)
i. both T1 and T are in privity of contract with L
ii. T1 is in privity of estate with L
2. assumption must be expressly made
3. in states that recognize the contract notion of third party beneficiary, an
assignee can become in privity of contract with landlord by an express
assumption of the lease obligations
4. once privity of contract is created by assumption, it remains until and
unless the contractual obligations are released (see Emanuel ex- p. 125)
e. Assignor Tenant Liability
i. When tenant assigns his leasehold, he is not released from the contract
1. Landlord is free to sue either original tenant or assignee if there is a
default
2. can do subrogation for assignor tenant to recover from assignee tenant
any amount he pays to the landlord on behalf of the assignees default
f. Multiple Assignments
i. An assignee in privity of contract with landlord remains liable for default of
subsequent assignees, however remote, unless there has been a release
ii. An assignee in privity of estate with the landlord is liable only for the default
occurs during the period in which there is a privity of estate
1. assignor who has not been released remains in privity of contract with
the landlord and is liable for the default of any assignee
g. Liability
i. Direct line through real covenants
ii. Original tenant can be free through express novation

47

III.

Subleases
a. Sublease- occurs when lessee transfers anything less than the entire interest in the
leasehold, thereby retaining a reversion
b. Not really a conveyance like an assignment is
c. Privity of Contract/Estate
i. A sublessee has neither privity of contract nor privity of estate with the landlord
ii. Sublessor and sublessee are in privity of contract and privity of estate
d. Tenant Default Under Principal Lease
i. If principal tenant/sublessor defaults on the principal lease the landlord is entitled
to terminate the principal lease
e. Can get a direct relationship between LL and ST through:
i. Assumption
ii. Statutory remedies that allow LL to go directly to ST
iii. Equitable remedies if tenant is insolvent
1. lien
iv. terminate the master lease (head lease) b/w LL and T

IV.

Distinguishing Assignment from Sublease


a. Courts use two methods:
i. Examining the substance of the transaction to determine if the tenant has
transferred her entire interest in the leasehold
1. common law rule was that it was an assignment unless tenant retained a
reversion, no matter how brief its duration (very last second of the term
would make it a sublease)
ii. Intent of the parties
1. if for an increased rent, sublease is usually indicated
2. for a lump sum, assignment is usual inference
3. if transferee expressly assumes the lease obligations an assignment is the
inferred intention
b. Pitfalls of error
i. If you think it is a sublease and pays rent to tenant, they will be liable to same
rent to the landlord (assuming tenant pockets the rent)
ii. A tenant who subleases for entire remainder of his term (at a profit) will find that
he is denied that profit if he fails to retain a reversion or a right of reentry,
assuming that retained right is enough to create a sublease

Privity of Estate with LL


Assignment
- Assignee
Sublease
- Subtenant
V.

Privity of K with LL

Yes

No (not without more)

No

No (not without more)

Privity of Contract & Privity of Estate


a. Privity of estate- voluntary transfer of possession
i. Assignment- when assigned to an assignee, privity of estate transfers to assignee
(returns possession stick at the end of the term)
1. privity of estate no longer between previous tenant/landlord
2. LL and assignee can sue each other

48
ii. Sublease- not full conveyance for balance of term (only a part)
1. tenant hands possession stick back to tenant
a. thus, not a conveyance of the estate!
2. tenant retains privity of estate with landlord
3. tenant-subtenant have their own relationship
4. LL cant sue ST under privity of estate
iii. real covenants- obligations or restrictions connected to real property (rent, repair,
maintenance)
1. landlord/assignee owe duties to each other
iv. personal covenants- do not assign; tenant still owes them to LL (not connected to
real property)
b. Privity of Contract
i. Subleases and assignments do not destroy privity of contracts
ii. Every time there is a lease, LL and T are in privity of contract and are liable to
each other
iii. Sublease- can get PK with assumption and then be liable to each other
iv. Can sue original tenant under PK and PE
v. Assignment
1. PK doesnt cease between original parties
2. tenant remains liable on the lease
c. can have only 1 PE, but can have more than 1 PK
i. assumption of the obligations create multiple privity of contracts (third party
beneficiary)
1. LL can now sue either assignee or tenant under PK, and assignee under
PE
VI.

Problems- p. 394
a. 3 yr term- 1 yr later (sublease)
i. L rights against T- can sue under PE and PK
ii. L Rights against ST- nothing (no direct line of liability)
b. 3 yr, conveys for balance of term (assignment)
i. L rights against T- PK
ii. L rights against A- PE
c. 3 yr lease, assigned to assignee with all covenants in the lease
i. T1- assignment and assumption
ii. T3- privity of estate
iii. T and T1- privity of contract
iv. Assumption doesnt get assigned when passed down
v. T3- primarily liable
vi. T1, T2- secondarily liable
1. guarantors of performance- back up
vii. dont have to be in possession to be liable
d. Examples
i. LL-T, T assigns to T1 with assumption (assignment and assumption)
1. can sue on real and personal covenants- PE, PK
ii. LL-T, T assigns to T1
1. can only sue on real covenants (no assumptions)

VII.

Ernst v. Conditt
a. LL- Ernst, T- Rogers, T1- Conditt
b. Lease said Rogers remained liable to Ernst under the lease (privity of contract)

49
c.
d.
e.
f.

P. 389- Conditt assumes master lease- privity of contract


T and T1 are in Privity of K
T1- Privity of E
Shouldnt matter whether or not it was an assignment or a sublease b/c T1 is liable under
PE and PK (strange case- not good for case law)
g. General rule for distinction of sublease and assignment
i. Does the transfer last for the remainder of the term

VIII.

Lease Restrictions/Withholding Consent


a. Unless a lease expressly limits or prohibits assignment or sublease, a tenant is free to
transfer leasehold by either method
i. Some courts use strict construction
ii. Express restrictions only apply to voluntary inter vivos
iii. If silent, assume free alienability
b. Three Stages
i. Some leases absolutely prohibit assignment/subleases, only allowed if it is freely
negotiated or statutorily authorized
ii. If silent, assume free alienability
iii. Middle Ground- reasonableness of withholding consent
1. Majority Rule
2. Minority Rule
c. Majority Rule: permits landlord to deny consent to transfer for any reason or no reason,
even if it is unreasonable
i. Anti-discrimination statutes limit landlord ability to reject prospective tenants
d. Minority Rule: landlord has an obligation to act commercially reasonable when
denying consent to a transfer
i. Applies to commercial leases only
ii. Is the Restatement position and is growing
iii. Pestana case- must have commercially reasonable objection
iv. Courts apply objective test to this question
1. landlord may not reject transferees to secure a commercial advantage or
because transferees proposed use is ethically offensive to landlord, but
otherwise reasonable
e. Landlord can waive lease restrictions, but once the landlord has expressly waived a
transfer restriction the restriction is destroyed unless he specifically reserves the right to
bar future transfers
i. Can be avoided by saying waiver applies to this transfer only, or an express
statement that transfer restrictions bind tenants assignees, thus preserving
f. Kendall v. Ernst Pestana- Minority Rule of Withholding Consent
i. LL- Pestana, T- Bixler, T1- Kendall (assignee)
ii. Pestana wont give consent b/c he wants to create a new lease with Kendall and
raise rent
iii. California says this is not a commercially reasonable objection
1. good faith and fair dealing
2. policy against restraints against alienation
3. rejects assertion that increase in market value of property only belongs to
lessor, not lessee
a. get what you bargained for duration of lease
g. Termination and Recapture in Commercial Lease
i. Clause in a California case between sophisticated tenants said that:

50
1. tenant, before entering into any sublease or assignment, was to give LL
written notice identifying intended sublease or assignee and specifying
terms of intended transfer
2. landlord could then terminate the lease with tenant and, if LL elected to
do so, enter into new lease with intended assignee or sublessee
3. that tenant was not entitled to any profit realized by LL in consequence
of termination and reletting
DEFAULTING TENANTS
Landlords Remedies
I. Remedies Typically Derived from Lease Provisions
a. Rent acceleration: makes rent for the entire balance of the term immediately payable
upon a tenant default under the lease
i. If landlord elects to accelerate rent she may not terminate the lease and take
possession
ii. Is an immediate sale of the balance of the lease term- a landlord cannot sell
remainder of term and take it away from tenant
iii. Landlord who retakes possession after abandonment cant accelerate rent
b. Security deposits: tenant deposits a sum of money as security for her performance of the
tenants lease obligations
i. Landlord is indebted to the tenant and must return the deposit at the end of the
lease, less any charges attributable to tenant default
c. Liquidated damages: amount must be reasonably related to the probable amount of
damages suffered by landlord upon tenant default, but the damages must not be capable
of easy determination
d. Confession of judgment: tenant agrees to waive service of process and authorizes
someone to confess judgment for him
i. Quick and efficient, but are of doubtful validity and sometimes prohibited by
statute
II. Remedies Derived from Statute and Common Law
a. Eviction- most leases contain express provisions permitting landlord to terminate lease
upon tenant default of any lease obligation
i. because today, lease covenants are considered dependent, statutes permit a
landlord to terminate a lease and evict the tenant for nonpayment of rent, but
usually not for breach of most other lease covenants
ii. if says they may terminate upon default, it is a right of entry
1. must notify the tenant and give the tenant reasonable time to cure the
default (Restatement Sec. 13.1)
iii. if termination is automatic, it is determinable
1. can proceed to a summary proceeding
iv. Summary Proceeding- expeditious judicial eviction remedy (also called
unlawful detainer or forcible entry and detainer)
1. every American state has a statute and is given calendar preference on
court dockets
2. only issue in proceeding is entitlement of possession
a. landlord has to prove that lease was validly terminated and they
are entitled to possession
i. ex: violated lease provision and tenant has no defense

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3. requirements
a. landlord is required to give tenant minimal notice to quit
i. usually not more than 3 days
ii. notice states that landlord will terminate the lease and
file suit for unlawful detainer (nonpayment of rent) if not
cured within 3 days
b. Ejectment- no used as much because it does not have the efficiency advantage of
summary proceeding (tenant is entitled to plead affirmative defenses)
c. Self-Helpi. At common law, landlord was entitled to use reasonable force to oust tenant
themselves, but American jurisdictions splinter on remedy
ii. No self-help- not yet the majority rule
1. a landlord must use judicial proceedings
2. ex: Berg v. Wiley
iii. reasonably forceful self-help- some states permit landlords to use reasonable
force to oust the tenant
iv. peaceable self-help- common law rule still observed in many jurisdictions
1. landlord must use peaceable means
d. why protect the tenant?
i. Working or living on property; landlord just gets money
ii. Harder on tenant if you make it really easy to dispossess tenant
iii. Public policy
III. Berg v. Wiley
a. Wiley leases to Philip Berg, who assigns 5 yr lease to Kathleen Berg
b. KBerg bound by real covenants (privity of estate)
i. Wiley has reversion at end of lease
ii. Lease required Berg to obtain written permission from Wiley to alter structure,
obligated Berg to operate the restaurant lawfully, and gave Wiley right to take
possession upon default
c. Berg began remodeling without permission and had health code violations
d. Wiley gave Berg 2 weeks to fix problems, and after that, Wiley entered premises and
changed the locks (claimed self-help)
i. Says Berg breached provisions of the lease
ii. Wiley re-let
e. Common-Law Rule on Self-Help:
i. Landlord is legally entitled to possession
ii. Landlords means of reentry are peaceable
f. Court departs from common law rule and says that the only lawful means to dispossess a
tenant who has not abandoned nor voluntarily surrendered but who claims possession to a
landlords claim of breach of a written lease is to resort to judicial processes
i. But says that even if common-law rule applied, Wileys actions not peaceable
IV. Tenant Abandonment
a. Surrender- if tenant abandons lease in midst of valid lease term the tenant offers to
surrender the lease
i. Landlord has 3 options:
1. accept surrender: this terminates the lease
a. tenant obligations cease at moment of termination and surrender,
not at abandonment

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b. tenants liability is rent due up to the moment of termination plus
damages created by the abandonment
c. Damages:
i. Transactional costs of finding a new tenant plus
whatever shortfall exists between lease rentals for
remainder of surrendered lease and fair market value of
the remainder
ii. Anticipatory repudiation- permits the landlord to
recover damages when tenant has made it clear he is not
only abandoning but denies any further lease obligation
1. are limited to damages reasonably forecasted
2. reject surrender and leave premises untouched: preserving landlords
entitlement to rent for the remainder of term
a. now the minority view
b. rule rejects the idea of duty to mitigate damages
c. justifications for rule
i. tenant is in breach & shouldnt impose duties on LL
ii. tenant bought the possession for the term
iii. duty to relet an abandoned apartment may deprive LL of
marginal rents by diverting tenants from other
apartments
iv. contrary rule encourages abandonment
3. retake possession and relet premises:
a. must do so voluntarily or with a duty to mitigate damages
b. duty to mitigate damages: many states hold that a landlord is not
free to do nothing after abandonment
i. must use reasonable efforts
ii. Sommer v. Kriedel- landlord has to show that they used
reasonable diligence to relet the apartment and that in
doing so he had treated the abandoned apartments as one
o vacant stock
b. if surrendered by T and LL accepts, the lease is terminated
i. LL can sue for back rent
1. cant sue for future rent payments (lease is terminated- no rent due)
ii. LL can sue for the difference between the rent reserved under the old lease and
reasonable rental value of old lease term
1. anticipatory breach
a. ex: 2 year lease with 12k in rent a year; surrendered a year in,
but market has changed and reasonable rent is now 8k (can get
the 4k difference)
b. can only do it if the market has changed
c. if surrender not accepted, lease is still in effect
i. some states say no duty to mitigate and sue tenant for balance remaining
ii. some states say landlord has duty to mitigate and must make reasonable efforts to
relet premises on the tenants account
1. can sue tenant for deficiency
2. tenant takes any overage or surplus
a. what if market is good? More incentive to accept surrender and
relet on new terms
V. Sommer v. Kridel- New Jersey Case

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a. Sommer leased apartment to Kridel for 2 year term
i. Kridel tried to surrender lease, but Sommer did not accept the surrender
b. landlord/tenant- privity of estate and privity of contract
c. Old rule in NJ: landlord had no duty to mitigate
i. Could sublease or assign
ii. It is tenants property
d. New Rule: landlord has a duty to mitigate damages caused by defaulting tenant
i. Required to use reasonable diligence to relet the apartment
ii. Burden of proof on the landlord to show they mitigated (case-by-case basis)
iii. could also consent to assign and sublease
VI. Seizure of Personal Property
a. If tenant defaults, can seize tenants personal property in the leased premises and hold it
until tenant cured default (called distress or distraint)
i. Some states prohibit this or place restrictions
b. Can also file suit to enforce a lien
Landlord Duties and Tenants Remedies
I. Dependent Covenants- tenant is relieved from rent obligations if the landlord breaches a
covenant in the lease
a. Previously had independent covenants- if LL did something wrong, tenant can sue but is
still stuck making rent payments under the lease
b. Covenant of title/possession- at delivery; only person with title can convey it
c. Covenant of quiet enjoyment
d. Illegal lease
e. Implied warranty of habitability
II. Exceptions to the Common Law No Landlord Duty Rule
a. Duty to disclose latent defects
b. Maintain common areas
c. Avoid fraudulent misrepresentation of premises
d. Abate nuisances
e. Make agreed upon repairs in a non-negligent way
Quiet Enjoyment
I.

Covenant of Quiet Enjoyment


a. Protects tenant in commercial as well as residential context, but warranty of habitability
usually takes over the residential context
i. Think of it as in commercial
b. Every tenant has a right of quiet enjoyment of the lease premises without interference of
the landlord
i. Expectation that the tenant wont be ousted or evicted
ii. LL wont disturb you
c. Obligation is implied by law, if not made explicit
d. Duty of the landlord to refrain from wrongful actual or constructive eviction
e. Actual Eviction- Occurs when L wrongfully evicts T or deprives T of possession of the
whole or any part
i. Total- tenant who is totally ousted from physical possession of the premises no
longer is obligated to pay rent and can elect to terminate the lease

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ii. Partial- ouster of tenant from any part of premises relieves tenant of obligation to
pay any rent at all until and unless tenant is restored possession of entire
leasehold
f. Constructive Eviction- broadening of the quiet enjoyment doctrine
i. if landlord substantially interferes with the tenants use and enjoyment of the
leased property- so much so that its intended purpose of the tenants occupation
is frustrated- a constructive eviction has occurred
ii. Treating some kind of conditions of premises to be so substandard, harmful, so
much of an interference it is as though the tenant has been evicted
iii. Tenant is not physically ousted
iv. Elements of constructive eviction:
1. wrongful act or failure of the landlord
a. landlord must act wrongfully, not a third party
b. look at their duty under the lease- is it violated
c. landlord is responsible for tenant actions that constitute a
nuisance or which occur in common areas, whether result was a
natural and probable consequence of landlords action
2. substantial and material interference of the tenants beneficial use and
enjoyment of the premises
a. so essentially deprived of the beneficial use or enjoyment of the
leased premises that they are rendered unsuitable for occupancy
for the purposes of which they are leased
3. must provide notice
4. complete vacation of the premises
a. tenant must completely vacate premises within a reasonable
time after the interference
v. partial constructive eviction
1. in most jurisdictions, tenant is not relieved of obligation to pay rent
g. Remedies
i. Can either stay in possession or abandon
ii. Stay in possession
1. can stay in possession and sue for damages
2. (value of property without breach)-(value of property with breach)
iii. Abandon
1. invoked for constructive possession
a. lease is terminated upon justified vacation of premises and no
rent is owed
2. may be still be able to get damages caused by constructive possession
a. suing for damages b/c you have to pay a higher rent somewhere
else- market went up
II.

Reste Realty Corp. v. Cooper


a. Cooper leased office space on bottom floor of a building; LL maintained an adjacent
driveway in such a manner that every rainstorm Coopers space would be inundated with
water running off the driveway
b. Signed a 5 year lease, then renegotiated, knowing there was a problem
i. Signed under reliance
c. Flooding became so severe and wasnt fixed that Cooper could not use the premises as he
intended
i. Sent notice of vacation and vacated the premises
d. Court finds for Cooper- uses constructive eviction

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i. any act or omission of the landlordwhich renders the premises unsuitable for
the purpose for which they are leased, or which seriously interferes with the
beneficial enjoyment of the premises, is a breach of the covenant of quiet
enjoyment and constitutes constructive eviction of the tenant
1. ex: failure to supply heat, sewage clogging, using part of premises for
lewd purposes that makes other part unfit for occupancy
2. must vacate in a reasonable time
e. Cooper not liable for the rent claimed by Reste
III.

Problems- p. 430
a. 2(a). Yes. Can make quiet enjoyment claim
i. Other tenants are within landlords control
b. 2(b). No. Deadlocking doors and hiring security are reasonable efforts

Illegal Lease
I.

Illegal Leases
a. Short lived, but still exists- led way for warranty of habitability
b. If there are violations in premises at time lease is entered, lease is illegal
c. Does not apply if code violations develop after making of the lease
d. Tenant under an illegal lease is a tenancy at sufferance, and LL is entitled to reasonable
rental value of premises given its condition

Warranty of Habitability
I.

Warranty of Habitability
a. Pretty much limited to the residential context
b. Not able to be waived
c. An implied-in-law obligation of the landlord to provide that the premises are fit for
human habitation
i. Reasonable person standard- would reasonable person find this uninhabitable?
ii. Two separate obligations:
1. warranty implied at the inception of the lease
2. implied continuing duty of repair
d. to invoke, must give notice of the uninhabitable condition and given a reasonable
opportunity to correct the problem
e. covers all latent and patent defects in essential facilities of the residential unit
i. facilities vital to the use of premises for residential purposes
f. Some Problems that trigger breach:
i. no heat in winter, water, electricity, plumbing, mold, infestation, lead paint,
asbestos
g. Rationale:
i. Fairness, social welfare
ii. Redresses unequal bargaining power of rich LL and poor tenants
iii. Encourage compliance with local housing codes
iv. Punish slumlords- message sending
h. usually happens when tenant stays in possession, doesnt pay, and is sued by landlord
i. can invoke IWH as a defense
ii. sort of like tenant self-help

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II.

Tenant Remedies for Landlord Breach of Implied Warranty of Habitability


a. Terminate and leave and sue for damages- tenant may terminate the lease, vacate
premises, and recover damages
i. Usually relocation costs plus excess of replacement rents over lease rentals for
balance of term)
b. Stay and Withhold Rent- tenant may remain in possession and withhold rent, pending
landlord correction of the defect
i. Can put the rent in a judicial escrow account (pay the rent to the court and goes
into the account and releases it to LL when condition has been fixed)
c. Stay and Repair- use reasonable amount of the rent to make repairs sufficient to bring
premises into habitable condition
i. Repair and deduct
d. Stay and Recover Damages
i. Tenant can remain and get damages for discomfort and annoyance as well as rent
abatement or deduction
e. Damages Calculation of Rent
i. (value of apartment as warranted)-(value of apartment in defective condition)
1. as warranted-as is
2. warranted value- stated rent
3. defective value- lower than warranted value, which may be 0
ii. (agreed upon rent)-(fair rental value)
1. agreed upon rent2. actual fair value
3. if agreed upon is the fair value, damages are nil
f. Percentage Diminution- if certain parts of apartment are in such poor shape, deduct
percentage from habitable section
g. Punitive Damages- when circumstances involve willful, wanton, and fraudulent conduct

III.

Hilder v. St. Peter


a. Hilder rented an apartment from St. Peter; apartment was filthy, lacked locked door,
plumbing leaked water, poor electricity, broken sewer lines
b. Notified LL, LL did nothing
c. Hilder won under implied warranty of habitability- promise to retain property in way that
maintains adequate human habitation
i. Also entitled to punitive damages

IV.

Problems- p. 439

Implied Warranty of Habitability (contd)


Landlord lets garbage pile up after strike- is LL at fault under this theory?
- not relevant whether LL can exercise control in warranty of habitability context
- work stoppages, natural disasters- if it materially changes the property to the detriment of the
tenants, landlord is liable
Look at:
- are health and safety reasonably affected negatively

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-

is habitat unfit- doesnt matter who caused it, how it came to be (LL is liable)

NUISANCE
I. Nuisance
a. thinking about effects of something on your property affecting the use and enjoyment of
someone elses property
b. nuisance- a person may not use his own land in an unreasonable manner that
substantially lessens another persons use or enjoyment of his land
i. can be private or public
1. private- interference with purely private rights to us and enjoyment of
land- usually by one or ore nearby landowners
2. public- interference with public rights- those held in common by
everyone
a. a public nuisance can also be a private nuisance
c. substantial interference with private rights to use and enjoy land either by:
i. intentional and unreasonable conduct; or
ii. unintentional conduct that is either negligent, reckless, or so abnormally
inherently dangerous that strict liability is imposed
d. Two main kinds of nuisances
i. Nuisances per se- nuisance no matter where it is
1. ex: health code violation
ii. nuisance per accidens- location of nuisance matters; whether it is a nuisance
depends on what it is near
II. Two Main Inquiries of Nuisances
a. Determination of nuisance
i. Intentional: Substantial, intentional, unreasonable
1. unreasonable- two ways to determine an unreasonable nuisance
a. balancing test- balancing the gravity of the harm to the plaintiff
inflicted by the conduct against the social utility of continuing
the conduct (Restatement)
b. threshold test- nuisance exists if the injury is severe enough to
be above some maximum level of interference that a person can
be expected to endure
i. too much, too unreasonable for them to lose use and
enjoyment of property
ii. Unintentional: Substantial, unintentional result of abnormally dangerous,
negligent, or reckless activity
b. Decision on remedy
i. Injunction
1. used to be automatic
2. standard has become untenable due to intense urban areas,
industrialization
ii. Money damages
1. balancing the equities- compare injury to P if injunction is denied with
the injury to D and to the public if injunction is granted
III. Private Nuisance and Public Nuisance

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a. Privatei. intentional and unreasonable conduct; or
ii. unintentional conduct that is either negligent, reckless, or so abnormally
inherently dangerous that strict liability is imposed
b. Public
i. Affects the rights held in common by everybody
ii. More commonly, a public nuisance is also a private nuisance
c. Relationship to trespass
i. Trespass- physical invasion of persons land
1. can be microscopic
ii. Nuisance- interference with persons right to use and enjoy land
IV. Air Pollution
a. Morgan v. High Penn Oil
i. Noxious fumes from oil refinery affecting nearby residents, restaurant, homes,
trailers (private nuisance)
ii. Court says it is a nuisance
1. substantially interfered with use and enjoyment of property
2. was intentional because High Penn knew what it was doing and did not
intend to change its operation; was an abatable private nuisance
3. was also unreasonable
iii. court gives an injunction- no guarantee High Penn would stop without an
injunction
b. uses threshold test to determine reasonableness
c. provides injunction and temporary damages for past harm
i. when money damages are insufficient, go to equity
V. Noise Pollution
a. Estancias Dallas Corp. v. Schultz
i. Private nuisance- Estancias constructed an apartment complex adjacent to
Schultzs residence
1. to save 40k, CAC was located 5ft from Schultzs lot line
ii. Intentional nuisance b/c corporation knew about the noise and were going to
continue
iii. Is substantial- based on the facts (affecting sleep, discussion, entertainment,
sound)
iv. Unreasonableness- applies threshold test
v. Changing the location of the unit would cost $150k to $200k
vi. Issued an injunction
1. not a housing shortage- ppl can go elsewhere
2. explicitly rejected damages
a. would cause to great suffering
b. goes to the original have a nuisance, get an injunction
3. how does it harm Estancias?
a. Impedes Ds use of property, could spend money to fix air
conditioner, use it for another purpose, or sell it
VI. Air Pollution
a. Boomer v. Atlantic Cement Co.- Pay Damages and Continue Activity
i. Private nuisance- group of neighboring landowners found cement factorys
smoke, dirt, noise, and vibration interfered with use and enjoyment of property

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ii. Intentional, substantial, and unreasonable
1. applied threshold
2. found to be a nuisance even thought it was done lawfully
iii. The court determined permanent damages were allowed where the loss
recoverable is small in comparison with the cost of removal of the nuisance.
iv. Servitude on land- easement (bought the ability to use the land in a polluting
manner); stick from the bundle
1. Cement factory paying owner and getting an easement to pollute
v. when selling, reduced value of the land, plus the damage reward, it is as If you
didnt have a problem
vi. permanent damages- court did not give an injunction, but gave permanent
damages (balancing formula)
1. Atlantic could fully compensate plaintiffs for past and future harm
without ceasing its business
2. injunction would not solve the problem
3. technically impossibility in meantime of abatement
4. factory was more valuable use and also had positive externalities (jobs,
revenues
vii. issued injunction unless Defendant pays permanent damages
VII. Air Pollution and a Public Nuisance
a. Spur Industries v. Del Webb Development
i. Public and private nuisance
1. nuisance per se
a. statutory/health violation b/c of the flies
2. Public- is an unreasonable interference with a right common to the
general public
a. interferes with health, safety, peace, comfort or convenience
3. private- stink of cattle feedlot affect residences
ii. Spur operated a cattle feed and the feed lot naturally generated enormous
quantities of manure, attracting insects and creating noxious odors, but no one
objected at first b/c there were no neighbors
iii. Del Web created a retirement city that expanded until it was sufficiently close to
Spurs lot to make the two uses incompatible
iv. Court enjoined Spur, but required Del Webb to pay Spur a reasonable amount of
the cost of moving or shutting down the feed lot
v. Equity required Del Webb to compensate b/c Webb came into the nuisance, but
the people are the injured
vi. Why isnt coming to the nuisance enough?
1. usually just a factor to be balanced; in Arizona, it was dispositive but
went around precedent
2. public nuisance- health violation
3. would be harming innocent purchasers
b. threshold
c. injunction
i. with P paying Ds reasonable costs of relocation or shutting down
1. have a duty to somewhat limit damages- be reasonable
VIII. Options and Remedies
a. No nuisance- use continues without restraint
b. Enjoin nuisance- stops nuisance generating activity

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c. Award damages for nuisance but commit it to continue
i. Ex: court can award permanent damages if deciding not to use an injunctionamount sufficient to compensate now for all past and future injury that may be
inflicted by continuation of the nuisance
d. Enjoin nuisance, but award damages to enjoined actor
i. Was the holding in Del Webb
ii. Del Webb came to the nuisance- courts hold that those who knowingly acquire
and use land in a manner incompatible with existing uses have voluntarily
assumed burden of what might be a nuisance were it to have been the late arrival
1. in some cases this is dispositive and wont get plaintiff a nuisance victory
2. others it can lead to damage reward for D, but also enjoined
iii. wouldnt have had an action unless he started building near the nuisance
IX. Lateral Subjacent Support Rights
a. Lateral support- right to support from adjacent land
i. Land and structure distinction
1. land- landowner who alters his land by removing the lateral support from
his neighbors land is strictly liable for any resulting damage to his
neighbors land
a. also applies to artificial supports, like retaining walls
2. structures- landowner is liable for damage to structures from withdrawal
of lateral support if either of 2 conditions is met:
a. landowner was negligent and collapse would not have occurred
but for the added weight of the structures
b. collapse would have occurred whether or not the structures were
there
c. if withdrawal of lateral support is so extensive natural contours
would have collapsed, its strict liability; if not enough to cause
natural contours to collapse, negligence
b. subjacent support- occurs when ownership is split into ownership of the surface and
ownership under the surface
i. owner of the underground rights is strictly liable for any damage caused to land
or structures on the surface resulting from withdrawal of subjacent support

ZONING
I. Zoning
a. Governmental power to regulate land use (accomplished through police powers)
i. Divides a political jurisdiction into specific separate geographic areas and impose
limits on the permissible uses of land within each area
b. takes some of the theory of nuisance prevention
II. Objectives of Zoning
a. Prevent incompatible uses from occurring (reducing need for nuisance laws)
b. Increase property values by minimizing use conflicts
c. Channel development into patterns that serve larger social goals
III. Constitutional Validity
a. Village of Euclid v. Amber Realty

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i. SCOTUS upheld validity of law against due process and equal protection
challenges
ii. Cumulative Zoning restrictions broke districts up by:
1. uses
2. height
3. area
iii. Goal of minimizing land use conflicts to prevent nuisances was legitimate
exercise of states police power b/c it wasnt unreasonable nor arbitrary
iv. Town is trying to achieve health and stability of single-family residences and
most efficient uses of property
v. Why excluding single-family residence zone reasonable
1. reduces traffic
2. security
3. disturbing noises
4. excluding apartments- court treats them like a nuisance accidente
vi. not arbitrary or confiscatory
IV. Cumulative Zoning
a. Euclidian Zoning- law identifies land use in a spectrum of higher to lower
i. highest- single-family residential use
ii. Apartments and other multiple-family dwellings
iii. Light commercial
iv. Heavy commercial
v. lowest- industrial
b. all uses at the zoned district and higher will be permitted
i. ex: single-family can go into other zones; industrial cant go into any others
V. Mutually Exclusive Zoning
a. Permits some uses in zone but excludes all others
b. Often used with respect to industrial or heavy commercial districts
VI. Density Zoning
a. Controls density in an area- done through limits on height or size of structures, location
upon their site, and functional uses created within the structure
VII. Covenants and Zoning
a. If covenant is more restrictive than the zoning restriction, the covenant controls
i. Ex: portion of parcel says for hospital purposes only within an area that allows
industrial, commercial residential
1. hospital is more restrictive
2. also, if parcel changed to only residential, hospital can still stay b/c of
non-conforming use doctrine
b. if covenant is inconsistent with the zoning covenant will govern for as long as the nonconforming use doctrine protects that use
VIII. Authorization of Zoning
a. Most adopted at local level, although some states regulate use statewide
b. Power is reserved to states and local government
c. Enabling act- law authorizing localities to engage in zoning
i. State legislatures can delegate zoning authority to administrative agencies
d. Standard State Zoning Act empowers cities to:

62
i. Regulate and restrict height, stories, and size of buildings, percentage lot that can
be occupied, size of yards and open spaces, density of population, and location
and use of buildings and structures
ii. Create use zones with differing regulations
iii. Modify zoning laws and grant variances in the public interest
iv. Requires states to develop:
1. comprehensive plan to accomplish public objectives
2. create procedures to establish, enforce, and alter zoning regulations
3. establish a zoning commission and an appeal mechanism for landowners
e. ultra vires- beyond the authority given to the locality under the zoning act
f. comprehensive plan: usually doesnt have to be binding but must be implemented by
actual zoning ordinances for some public purpose
IX. Non-Conforming Uses
a. Zoning responds to dynamic changes in communities
b. Non-conforming use- when zoning is introduced some existing land uses will not be in
conformity with the uses permitted under the new zoning law
i. Non-conforming uses permitted to continue because their immediate abatement
would amount to either:
1. taking of property without just compensation
2. unreasonable exercise of the zoning power
c. could transfer a non-conforming use to another and it will still remain a nonconforming
use
d. Termination of Non-Conforming Use:
i. Abandoned, discontinued, or voluntarily terminated
1. usually need proof that user has voluntarily intended to abandon
nonconforming use
2. discontinuance for a specific period terminates permission for the use
ii. Act of God destruction
1. replacement or structure must conform to zoning law
iii. Nuisance
iv. Extinguished by eminent domain
v. Natural expansion- Change or enlargement in use
1. if it expands it is no longer a nonconforming use
vi. Major repairs that extend life of use
vii. Amortization- half states use it
X. Non-Conforming Uses: Amortization
a. Amortization- zoning law may specify a period after which the nonconforming use must
cease
i. Must be long enough to avoid a successful charge that forced phase-out amount
to an uncompensated taking or denial of substantive due process
ii. Does it allow adequate time for elimination of non-conforming use?
b. Majority Rule: Valid if reasonable; Look at weighing the public gain against the private
los which removal of use would entail:
i. Nature of use
ii. Character of structure
iii. Location
iv. Portion of users total business is affected
v. Salvage value
vi. Extent of depreciation

63
vii. Any monopoly or other advantage conferred on user by reason of foreclosure of
similar and competing uses
c. Minority Rule: invalid per se (constitutes an uncompensated taking of property, no matter
the length the amortization period is)
d. PA Northwestern Distributors, Inc. v. Zoning Hearing Board
i. Moon Township adopted ordinance making it illegal to operate an adult store
ii. PA Northwester became a non-conforming use; had to cease to use it in 90 days
or convert it to a legal use
iii. Says it is per se confiscatory
iv. Concurring justice thought it was void b/c amortization period was unreasonable
e. spot zoning- one parcel or small number typically owned by same party get bad or good
treatment
Exactions
I. Exactions
a. Exactions- Government imposes a condition to obtaining a permit that could not
independently be imposed without compensating the landlord
II. Rule for Permit Conditions- The Permit Condition Must
a. Legitimate State Interest: Further a legitimate state interest
b. Essential Nexus: Have an essential nexus to negative impacts generated by the proposed
project (a substantial relationship to the governments valid regulatory objective)
i. Ex: Nollan
c. Roughly Proportional: Nature and scope of condition is roughly proportional to the
impact of the proposed development, based on an individualized assessment undertaken
by the municipality
i. Ex: Dolan
ii. Extends Nollan- even if there is a clear connection, the permit must be roughly
proportional to the interest
iii. Individualized assessment- go out and see how it is going to work (no
assumptions or assertions
iv. No specific formula
III. Essential Nexus
a. Nollan v. California Coastal Commission- 1987
i. Nollan owned beachfront property- lot extended to mean high-tide water mater
along peach; sought approval from Commission for permission to demolish
structure and put a new one up, but Commission refused to grant a permit unless
he consented to a recorded easement which would permit unrestricted public use
of Nollans beachfront lying between retaining wall and high-tide mark
ii. State interest:
1. preventing beach congestion
2. preventing psychological barrier- not limiting visual access to beach
iii. no essential nexus: view of beach wont be improved by a public easement to
get access to the beach
1. condition failed to further the end advanced as justification for
prohibition; was not substantially advanced
IV. Rough Proportionality
a. Dolan v. City of Tigard- 199

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i. Dolan wanted to expand her store and portion of site was within flood plain
ii. City conditioned permit on dedicating to public use the entire portion of the lot
within the flood plain, as well as an additional 15 ft strip of land adjacent to the
flood plain as a pedestrian walkway/path
iii. Government interests:
1. prevent flooding from more runoff caused by paved parking lot and
bigger building
2. potential for more traffic
iv. essential nexus- legitimate purposes are furthered by conditions
v. not roughly proportional: failed to sow how a public greenway (with ppl
coming all the time) would be better than a private one and court didnt show
evidence that additional number of vehicle and bicycle trips generated by
development reasonably relate to the dedication of an easement
1. people allowed on path at all times
2. could find a traffic consultant and do studies to see if it is roughly
proportional
3. height, width restrictions may show proportionality
b. NJ Supreme Court case- developer only has to pay pro rata share that they would get
benefit from
EMINENT DOMAIN
I.

Eminent Domain
a. Was a historical practice that there was an assumption that government has power to take
i. Evolved over time- was originally power to take for large public projects
ii. Compensation came later on
b. All governments in the US have the power to take private property and use it for public
purposes, but the power is limited by the US Constitution
c. 5th Amendment (Takings Clause)- private property shall not be taken for public use
without just compensation
i. Applies to federal and state governments; incorporated through 14 th
d. Two prongs of the Takings Clause:
i. Public use- designed to prevent any taking that forces a transfer of private
property from one private person to another with no public benefit
1. governments sometimes take private property and convey it to another in
order to reap a collateral public benefit
2. used to benefit the public as a whole
ii. Just compensation- stipulates that when governmental power is used to seize
private property the public pays the proper own the value of property
1. usually it is fair market value- price a willing buyer and willing seller
would agree upon
a. owner is not entitled to any additional value that is subjective
and peculiar to owner (sentimental)
b. severance damages- owner can be paid the difference between
the value of entire parcel before taking and value of parcel left to
owner after taking (before-and-after rule)
c. fair market value due is calculated without regard to the effect of
condemnation itself on values

II.

Public Use Requirement

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a. No governmental seizure of private property may occur unless it is for a public use (even
if compensation is provided)
b. Meaning of Public Use
i. Literal reading of Constitution (SCOTUS rejected this view in Kelo)
1. would limit government power to take property to instances where
property will actually be used by the public (park, road, school)
a. collateral public benefits not permissible (ex: conveyed property
to private corporation to provide economic benefits to comm.)
ii. Public Benefit
1. extreme deference to legislative judgments on public use
a. ex:
i. economic revitalization
ii. taxes
iii. jobs
iv. revenue growth
v. dont get these things without private development
2. as long as the taking is rationally related to any conceivable public
purpose the public use requirement is satisfied
a. Berman v. Parker- urban renewal scheme in which blighted
property was condemned and transferred to private developer
was public use
b. Hawaii Housing Authority v. Midriff- public use that forced
transfer of fee titles in order to eliminate the perceived social and
economic evils of land oligarchy (rational relationship)
III.

Eminent Domain Chart- Distinguishing Between Regulatory Takings


a. Compensable takings pursuant to governments eminent domain power
i. Explicit, intentionally done by a governmental body or other entity vested with
eminent domain power
1. Kelo example
2. given by the takings clause
ii. Inadvertently done by purported police power (regulatory takings)
1. different taking than (i)
2. government has purported to regulate and court says that if they do, they
have to compensate- regulatory takings start out as noncompensable
b. Noncompensable regulation of property pursuant to governments police power
i. No compensation
ii. Zoning, historic preservation, environmental controls

IV.

Valuation of Estates and Associated Future Interests in Eminent Domain


a. Fee Simple Absolute- easiest
i. Only have to deal with present possessory owner
b. Life Estate with Reversion or Remainder- more difficult
i. Have to find future interests and compensate them the sticks in their bundle
ii. Lump sum would be given and divided upon actuarial tables to determine
allocation between life tenant and future owners
1. how old is life tenant- how much longer they expected to live
c. Defeasible Fee with Right of Entry, Possibility of Reverter, of Executory Interest
i. When government wants to take fee simple, they want everything
ii. Problem distinguishable from life estate: defeasible fee may never end while a
life estate surely will

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iii. Majority view: in a defeasible fee, the holder of the fee gets the entire
condemnation award
iv. Restatement view- if defeasible fee will probably not end within a reasonable
period of time (not imminent), fee holder should have entire award
1. unless you can show verge of breach, future interest gets nothing
v. could use RAP for executory interests to see if it will vest
vi. PR + RE can use some statutes that set 30 year limits
1. can use this factor as well to determine if it can vest & value property
vii. Ink v. City of Canton- diverges from rules and pays out to future interest in
defeasible fee
V.

States and Eminent Domain


a. States are free to interpret their own Constitutions independently and have the power to
define public use limit upon takings differently than the US Supreme Court
b. States can be more restrictive in its takings power
i. The Takings Clause is a floor, not a ceiling
ii. After Kelo, some states have limited the use of eminent domain to give people
greater property rights

VI.

Relationship Between Public Use and Just Compensation


a. Courts are reluctant to deny eminent domain power, fearing that desirable public benefits
would be lost b/c the transaction costs of proceeding through voluntary transfers are
insurmountable
i. Two ways courts address weak public use test
1. liability rule- traditional fair market value compensation would be paid,
but compensation would increase as the taking appears to edge closer to
looking like a private-to-private transfer (less errors in the long run)
2. usings- whether government actually uses the property

VII.

Kelo v. City of New London


a. New London decided to condemn private residential properties in order to assemble a 90
acre tract for a Pfizer plant. The property was to include a small urban village, 80 new
homes, 90,000 sq. ft. of office space, a marina, retail space, water-dependent uses. New
London was having a lot of problems
i. Kelo held out on the transfer
ii. Blight- deterioration or dilapidation of the property
b. Court held that so long as the condemnation was part of a comprehensive development
plan that had been subjected to thorough deliberation, the Court would defer to the
judgment of government officials
i. The taking was rationally related to a conceivable public purpose
ii. Would create economic revitalization in New London, jobs, revenue growth
iii. Holding: give deference to legislative decisions as long as plans are
comprehensive
iv. Public purpose: Court says its the purpose, not the mechanics- looks at the
ends, not the means
v. Governments pursuit of a public purpose will often benefit individual private
parties