PROPERTY OUTLINE

Table of Contents
ORIGINAL ACQUISITION ......................................................................................................... 3
FIRST POSSESSION .........................................................................................................................4
Pierson v. Post, 3 Cal. R. 175, 2 Am. Dec. 264 (N.Y. 1805). .................................................................. 4
Ghen v. Rich, 8 F. 159 (D. Mass. 1881). ................................................................................................ 4
Keeble v. Hickeringill, 11 East 574, 103 Eng. Rep. 1127 (Queen’s Bench, 1707). ................................ 4
Other Applications of First Possession ............................................................................................5
Creation.........................................................................................................................................5
Novelty..........................................................................................................................................6
Principle of Accession ............................................................................................................ 6
Values Subject to Ownership ..........................................................................................................6
Moore v. Regents of the University of California, 793 P.2d. 479 (1990). ............................................ 7
Phillips v. Pembroke Real Estate, Inc., 819 N.E.2d 579 (Mass. 2004). ................................................. 7
United States v. Corrow, 119 F.3d 796 (10th Cir. 1997). ....................................................................... 8
Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir.
2005). ................................................................................................................................................... 8
Public Rights.......................................................................................................................... 8
Public Trust Doctrine ......................................................................................................................8
Illinois Central Railrod Co. v. Illinois, 146 U.S. 387 (1892).................................................................... 9
State of Oregon ex rel. Thornoton v. Hay, 462 P.2d 671 (1969). ......................................................... 9
Comedy of the Commons: Custom, Commerce, and Inherently Public Property ...............................9
Water ............................................................................................................................................9
Evans v. Merriweather, 4 Ill. 492 (1842). ............................................................................................. 9
Coffin v. Left Hand Ditch Company, 6 Colo. 443 (1882). .................................................................... 10
Higday v. Nickolaus, 469 S.W.2d 859 (1971). ..................................................................................... 10
Right to Exclude................................................................................................................... 11
Trespass to Land .......................................................................................................................... 11
Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wisc. 1997)....................................................... 11
Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936). ............................................................. 11
Building Encroachments ............................................................................................................... 12
Pile v. Pedrick, 31 A. 646 (Penn. 1895). .............................................................................................. 12
Golden Press, Inc. v Rylands, 235 P.2d 592 (Colo. 1951). .................................................................. 12
Ex Ante/Ex Post Problem.............................................................................................................. 12
Adverse Possession ...................................................................................................................... 12
Morengo Cave Co. v. Ross, 10 N.E. 2d 917 (Indiana 1937). ............................................................... 13
Howard v. Kunto, 477 P.2d 210 (Wash. App. Ct. 1970). .................................................................... 13
Right to Exclude Exceptions ................................................................................................. 14
Necessity ..................................................................................................................................... 14
Ploof v. Putnam, 71 A. 188 (Vermont 1908). ..................................................................................... 14

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 Custom ........................................................................................................................................ 14
McConico v. Singleton, 9 S.C.L. 244 (1818). ....................................................................................... 14
Public Accommodations Laws....................................................................................................... 14
Public Policy ................................................................................................................................ 15
State v. Shack, 277 A.2d 369 (N.J. 1971). ........................................................................................... 15
Uston v. Resorts International Hotel, Inc., 445 A.2d 370 (N.J. 1982)................................................. 15
Antidiscrimination Laws ............................................................................................................... 15
Shelly v. Kraemer, 334 U.S. 1 (1948). ................................................................................................. 15
Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994). ............................................................. 15
Right to Abandon ................................................................................................................ 16
Pocono Springs Civic Association, Inc. v. MacKenzie, 667 A.2d 233 (1995). ...................................... 16
Eyerman v. Mercantile Trust Co., 524 S.W.2d 210 (1975). ................................................................ 16
Takings ................................................................................................................................ 16
Eminent Domain .......................................................................................................................... 16
Regulatory Takings ....................................................................................................................... 17
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). ...................................................................... 17
Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978). ........................... 17
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). ............................................ 18
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). ........................................................ 18
Measure 37/49 ............................................................................................................................ 18
The Denominator Problem ........................................................................................................... 18
Summary of Takings Law .............................................................................................................. 19
Public Use Requirement ............................................................................................................... 19
Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005). ........................................................ 19
Exactions ..................................................................................................................................... 19
Dolan v. City of Tigard, 512 U.S. 374 (1994)....................................................................................... 19
Estates in Land .................................................................................................................... 20
Present Possessory Interests ........................................................................................................ 20
Future Interests ........................................................................................................................... 22
Future Interests Retained by Grantors .......................................................................................... 22
Future Interests Created in a Grantee ........................................................................................... 22
Vesting ........................................................................................................................................ 23
Disclaimer.................................................................................................................................... 23
Summary of Estate Interests......................................................................................................... 23
Waste .......................................................................................................................................... 24
Voluntary/Affirmative ........................................................................................................................ 24
Permissive .......................................................................................................................................... 24
Ameliorating ....................................................................................................................................... 24
Brokaw v. Fairchild ............................................................................................................................. 25
Restraints on Alienation ............................................................................................................... 25
Rule Against Perpetuities ............................................................................................................. 25
Shared Estates ..................................................................................................................... 25
Co-Ownership .............................................................................................................................. 25
Community Property.................................................................................................................... 26
Partition ...................................................................................................................................... 26
Delfino v. Vaelencis, 436 A.2d 27 (Conn. 1980). ................................................................................ 27

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 Contribution and Accounting ........................................................................................................ 27
Gillmor v. Gillmor, 694 P.2d 1037 (Utah 1984). ................................................................................. 27
Property Division on Divorce ........................................................................................................ 27
O’Brien v. O’Brien, 489 N.E.2d 712 (N.Y. App. 1985). ........................................................................ 27
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). ...................................................................................... 28
Marital Estates............................................................................................................................. 28
Condominium, Cooperatives, and Common Interest Communities ................................................ 28
Condominium ..................................................................................................................................... 28
Cooperatives ...................................................................................................................................... 28
Common Interest Communities ......................................................................................................... 28
Nahrstedt v. Lakeside Village Condominium Association, Inc (Cal. 1994( ......................................... 28
40 West 67th Street v. Pullman ......................................................................................................... 28
Landlord Tenant .................................................................................................................. 29
Leases.......................................................................................................................................... 29
Tenant Rights............................................................................................................................... 29
Form Lease .................................................................................................................................. 29
Licenses ....................................................................................................................................... 29
Title Issues .......................................................................................................................... 29
Introduction to Title ..................................................................................................................... 29
Nemo Dat .................................................................................................................................... 30
Proving Ownership ...................................................................................................................... 32
Recording Acts ............................................................................................................................. 32
Servitudes ........................................................................................................................... 34
Easements ................................................................................................................................... 34
Covenants.................................................................................................................................... 37
Land Use Regulation ............................................................................................................ 38
Nuisance...................................................................................................................................... 38
Zoning ......................................................................................................................................... 38
Exclusionary Zoning ..................................................................................................................... 38

ORIGINAL ACQUISITION
- What kind of events qualify as establishing a root of title and a sequence of voluntary
conveyances that can unfold?

5 General Principles of Original Acquisition

1. First Possession
2. Discovery
3. Creation
4. Accession
5. Adverse Possession

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FIRST POSSESSION
Wild Animals; Example of something that is not owned.
Pierson v. Post, 3 Cal. R. 175, 2 Am. Dec. 264 (N.Y. 1805).
Pierson had his dogs with him hunting a fox. When chasing and hunting the fox, Post knew the
fox was being hunted, yet prevented Pierson from actually catching the fox by killing it and
carrying it off before Pierson. A wild animal is not reduced to possession unless the fox is
being mortally wounded since corporal possession would be unequivocal. Mere pursuit is not
enough. This is the “Rule of Capture”.

Things to Consider When Determining Possession for Original Acquisition

- Custom
- Ratione Soli
o If on property, can obtain possession (Did not apply to fox since they were
predators, not hunting game)
- Certain Control Rule is the Rule of Capture
- First-In-Time Rule
Idea is to generate incentives and come up with rules for preservation
Possession is the root of the title.

Ghen v. Rich, 8 F. 159 (D. Mass. 1881).

Fishermen off the coast of Mass. hunt whale with bomb-lances fired from guns made for the
purpose of hunting the fin-backed whale. When killed they sink to the bottom, and within 1-3
days they rise and float either to shore or out to sea. Those who find whale on beach with the
mark of the hunter form lance, will report it to the owner, and the owner will provide a finder’s
fee to that person. Ellis went against custom and sold the whale at auction. Custom applies
since the application is limited and affects few persons, custom has been recognized for many
years, and if the custom were not followed, people would be disincentivized to engage in this
type of labor.

Other Rules that Apply in Situations Like This:

- Fast-Fish-Loose-Fish: whale belonged to first harpooner as long as it was attached to his
boat, keeping the whole whale.
- Iron-holds-the-whale rule or first-iron rule: first harpooner would get exclusive rights to
the whale as long as he was in fresh pursuit; due to danger of animal.

Keeble v. Hickeringill, 11 East 574, 103 Eng. Rep. 1127 (Queen’s Bench, 1707).
Doctrine of ratione soli. The π owned a pond where ducks would come and the owner prepared
and procured decoy ducks, nets, machines, and other engines for taking of ducks and enjoyed
this benefit. The ∆ would hunt the duck on the π property. One who hinders another’s trade or
livelihood with malicious interference is liable to an action for hindering their use of their
own property. Legitimate business competition cannot be malicious interference.

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Other Applications of First Possession
Sunken Vessels
- Rights to ownership under find or salvage
Law of Finds
- Awards to first possessor only if owner or insurer do not claim property, and unowned
at time of possession
- Property is abandoned when the owner relinquishes future claims of possession or
ownership
Law of Salvage
- If not abandoned, a salvor has a claim for a generous percentage of value of vessel and
cargo
- Standard for possession is lower than a finder
o Salvage-possession has a lower standard than acquisition-possession
- Salvor is entitled to payment of an award
o Unjust enrichment
Difference of two is the voluntary abandonment feature
Mislaid – did not intend to abandon, but know where it is.
Lost – did not intend to abandon, do not know where it is.

Home Run Baseballs

- Balls used in pro baseball games are property of the home team, but once they leave
the playing field are regarded as abandoned property.
- Popov v. Hayashi; Barry Bonds case
o Court split earnings, Popov had exclusive pre-possessory interest to complete
the catch without interference; Hayashi was not part of mob, but was the first to
unambiguously obtain possession of ball.
Oil and Gas
- Subject to rule of capture; free to drill, as long as within column of space projected
down from surface. Slant drilling into a neighbor’s column of space is trespassing.
Ownership of surface does not entirely deem ownership of mineral beneath the surface.
Issue is that oil and gas are in pools under the ground. Can drill straight under but still
drain neighbor’s portion of gas from pool.
- CL; oil and gas are not owned by anyone until it is reduced by possession.
- Danger is mass output of pumping oil.
- Theory to apply is unitization; unitary management. Each owner takes shares in a field.
- Fear is the tragedy of the commons; mass pumping that will drain oil fields.

Ad Coelum Rule – own everything under land and in air that is owned on the surface.

Creation
- Applies to property in form of information; intellectual property
- Costly to produce, but post-production cost of copying or reproducing it is zero.
- Property rights create incentive for producing more of it, not to ensure adequate
allocation for potential users of it.

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 o IP is governed by statutory regimes
- Patents, copyrights, trademarks
o Patents – new, useful, and nonobvious inventions
o Copyrights – original works of authorship
o Trademarks – words or symbols that identify commercial enterprises, goods, and
services.

Novelty
- An originality in creation or information rights is required. Being first of its kind is not
what makes the information a novelty.

Principle of Accession
- Establishing title to property without voluntary conveyance of another
- Difference between the principle of accession and the doctrine of accession

Principle of Accession – family of doctrines sharing a common feature; ownership of some

unclaimed or contested resource is assigned to the owner of some other resource that has a
particularly prominent relationship to the unclaimed or contested resource.

Doctrine of Accession – Narrow CL doctrine; someone mistakenly takes up a physical object

that belongs to someone else and transforms it through her labor into a fundamentally
different object.

Doctrine of Increase – Applies to principle of accession; when in the absence of an agreement

to the contrary, the offspring or increase of domestic animals belongs to the owner of the
mother. EX: Cow has baby; baby is owned by the owner that owns the cow.

- Accession is distinct from first possession and is an alternative principle of acquisition. It

is similar to first-possession of an un-owned thing, but is not related to the labor to
bring that thing under control. It is related to the owner owning prominent thing that
makes that un-owned things theirs by virtue.
o Winner does not have to do much and does not encourage wasteful racing to
own, such as first possession.
o Incentive to improve property to coincide with asset that birthed the property
acquired by accession.
- How to establish prominence relationship?
o Small objects are accessions of big objects
- Accession defines the scope of property claims; ad coelom rule also helps determine
what exactly is being claimed.

Values Subject to Ownership

1. Closeness to one person is not transferrable; inalienable
a. Human body, dead bodies, organs, body parts
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 2. Fruits of certain types of labor; individual expression
a. Artwork expressing oneself, prostitution
3. Cultural and Religious Objects
a. Vested in group culture represents
Personhood
- Humans should not be commoditized
- Medical technology is complicating this non-commodification principle.

Moore v. Regents of the University of California, 793 P.2d. 479 (1990).

Moore diagnosed with leukemia and was treated by Dr. Golde. Dr did not inform him that
spleen would be removed for research and profited from the research later on. Cells taken
from the spleen that is no longer the possession of a person, does not fall under the principle
of accession since the product line was distinct from Moores’ cells.

Artist’s Moral Rights

- Creation of one’s beliefs and experiences violate the individuals’ personhood.
- Intimately connected to work wherever it is.

Visual Artist’s Rights Act (VARA)

- Right to claim work as own; can disclaim art that is altered and damages your
reputation.
- Can prevent alteration or destruction of recognized paintings, drawings, or sculptures.
- Need single or fewer than 200 copies with numbers.
- No commercially used artwork
- Not to works made by hire or works subject to copyright

Phillips v. Pembroke Real Estate, Inc., 819 N.E.2d 579 (Mass. 2004).
Phillips sculpted a number of works contracted by real estate company to place the sculptures
to correspond with the landscape in that particular park. This was defined as site-specific park.
No property right to site-specific art because the property owner would be held hostage to
the work.

Cultural Patrimony
- Personhood interest when cultural artifacts are taken from communities where they
have particular significance.

Native American Graves Protection and Repatriation Act (NAGPRA)

- 2 Objectives
o 1. Protect Native American human remains and funerary objects
o 2. Objects of cultural patrimony on federal or tribal lands.
- Cultural Patrimony Elements
o Ongoing historical, cultural, traditional importance AND

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 o Inalienable by tribe by virtue of object’s centrality in tribal culture; cannot be
personal property to an individual tribal member.

United States v. Corrow, 119 F.3d 796 (10th Cir. 1997).

Winnie was a Navajo religious singer who wore a mask to connote the Navajo perception that
these cultural items embody living gods. These are past through by apprenticeships of a family
or clan member or by loan to another Navajo clan. Corrow bought the mask from Winnie’s
family under the false pretense of putting it in a Navajo museum, with the real intentions of
selling it to someone else for a profit. Cultural patrimony means that the cultural item is so
inalienable to the group, that the property cannot constitute the property of an individual
tribal member. This mask was to not leave the Navajo community.

Religious Land Use and Institutionalized Person Act (RLUIPA)

Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir.
2005).
Church acquired a 40-acre tract of land in a section of New Berlin zoned residential. Wanted a
church here, so needed rezoning of portion of tract for institutional purpose, but denied
application without just cause. RLUIPA applies since this has to do with individualized
assessments of proposed uses for property.

Public Rights
Navigation Servitude
Navigable Waters
- “Commerce Clause”
- High number of waters in U.S. Doctrine birthed from England.
- Non-tidal waters are navigable in fact – opposed to tidal waters being navigable.
- Navigable waters are open to the public for navigation or fishing
o This is federal jurisdiction
- Non-tidal waters are owned by property owners and tidal water beds are owned by the
state.
Navigable Airspace
- Federal jurisdiction also
- Too many trespass claims if it could be privately owned making air travel impracticable;
ad coelum doctrine.
- Not left to state rights due to “Commerce Clause”

Federal law trumps any attempt by state law or private property owners to interfere with free
public navigation

Public Trust Doctrine

- Can help protect the environment and preserve natural resources.
- Title to certain resources is reserved for governmental hands.

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 - Land is owned by government in trust for the people preserving national parks and
forests.

Illinois Central Railrod Co. v. Illinois, 146 U.S. 387 (1892).

Challenging title of certain lands by lake front where they are occupied by tracks, depots, and
other structures used by the railroad company and the title claimed by the company to the
submerged lands. State legislature does not have the power to abdicate all of submerged
lands to private company for public purpose, but only parcels to preserve the public trust.

State of Oregon ex rel. Thornoton v. Hay, 462 P.2d 671 (1969).

Hay’s own a tourist facility on the beach and are appealing for constructing fences and other
improvements in the dry-sand area between the 16-foot elevation contour line and the
ordinary high-tide line of the Pacific Ocean. Public use applies here as a prescriptive easement
of using the beach land for a public recreational use. Custom elements that are considered for
public use: ancient, exercised without interruption, peaceable and free from dispute,
reasonableness, certainty, obligatory, non-repugnant or inconsistent.

Comedy of the Commons: Custom, Commerce, and Inherently Public Property

Water
- Renewable resource and unique resource
- Controversial part is that it can be both private or public
- Based on CL with state statutes and federal overlays
- Water is distinguished by:
o Surface: riparian and prior appropriation rights
o Underground: difference between diffuse and running in a defined channel
o Diffuse: undesirable and to be warded off rather than used
o Defined channel or body

Riparian Owner: land abuts the watercourse and right to use the water from the surface
stream.
- Natural flow theory where a riparian owner can prevent a diversion of the natural flow
of a river by an upstream riparian owner. This is now the reasonable use theory.

Reasonable Use Doctrine

Evans v. Merriweather, 4 Ill. 492 (1842).

Evans obstructed and diverted a water course for his own use. Merriweather depended on the
branch of water for mill. When Evans diverted the water course, he dried up the branch of
water that Merriweather had use to for his mill. All that are part of the natural flow can enjoy
the benefits of that stream; Can only use riparian water rights to not affect someone else’s
rights. Cannot divert natural flow of water for one’s own artificial uses depriving another of
their natural need for the water’s natural flow.
This is the Reasonable Use Doctrine.

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 - Riparian rights cannot be severed or transferable to a non-riparian owner
- Natural and artificial uses can be compared to domestic and other uses today. The
distinction only matters during droughts where there is too little water to satisfy the
natural wants of all riparian’s.

Coffin v. Left Hand Ditch Company, 6 Colo. 443 (1882).

Company brought suit due to Coffin using the water irrigate the lands. A drought occurred and
when using the water for irrigation of lands, this interfered with Coffin’s right to use the water.
The first appropriator of water from a natural stream for a beneficial purpose with
qualifications has a prior right to the water.
Priority of right by priority of appropriation.

Prior Appropriation Doctrine

- Moves towards a private property right; this is also similar to a first-in-time rule
opposed to a reasonable use doctrine. Can under this doctrine sever water from riparian
land and transport it into another watershed. This is used in the West because water is
more scarce and private property rights are more worthwhile due to increase in value.
- Incentives
o Encourages development
o Encourages “rule of capture” similar to oil
o Encourages “premature grabbing”; may have too much supply, but will not want
to relinquish rights to use.

Diffuse Surface Water: Not in a defined channel; casual water

- Common-enemy doctrine gives a landowner an absolute right to repel inflows of this
type of water to combat it from flooding damaging the property.
- Balance between trespass-like doctrine (absolute) and nuisance-like doctrine
(reasonableness)

Ground Water: steady stream or percolating

- Reasonable use or correlative applies

Higday v. Nickolaus, 469 S.W.2d 859 (1971).

City needed water for dwindling supply for their residents. Farmer contends that the use of the
water underneath his land for agricultural and personal uses and the city’s access will deprive
him of this right. Reasonable use doctrine applies to subterranean waters.

Themes of Public Trust Doctrine

- Private to public ownership
- Inalienability concept
- Scope of Public Trust Doctrine
- Erosion of ad coelum rule

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 - May not be able to rely on absolute ownership of owning water under property
- Surface and groundwater – reasonable use

Right to Exclude
2 Conceptions of Property
1. Property as a right to a thing good against the world
2. Property as a collection of rights

Trespass to Land
Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wisc. 1997).
Steenberg Homes delivered a mobile home through the easiest route they could, which was
through the Jacques’ property. The Jacques’ refused to allow this, but Steenberg did it anyway.
$1 nominal interest and $100,000 punitive. When there is an intentional trespass, there is no
need for compensatory damages to warrant having punitive damages. Much more than a
nominal interest to exclude others from private land, since intentional trespass to land causes
actual harm to the individual, regardless of if the harm can be measured in mere dollars.

Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936).

Π alleges commercial air line has continuously trespassed upon ownership and possession of
tract through owned airspace less than 100 ft above him referring to ad coelom. Ad coelum
does not apply here since space above him cannot actually be used. As long as use of airspace
does not actually interfere with possession on land, then it is not a trespass.

4 Doctrine Moves for an Exception for Overflights of Ad Coelum Rule to Preserve Rules Utility
1. Action for trespass is only for person who are in possession of land
a. Constructive possession; not actual
2. Airplane overflights actionable as trespasses only if they cause actual harm to the
surface owner
a. Actual harm is not an element to trespass to land
3. Airplane overflights are technically trespasses, but the surface owner is not entitled to
any damages or other relief because she obtains implicit in kind compensation from
being able to take advantage of the benefits that airplane travel has to offer.
a. Every property owner grants title to airplane to trespass over property making
everyone in society better off; Easement
4. Reclassify airspace in which airplanes travel as public property, public navigable
airspace, no surface owner would have any claim of private property rights.
a. Can be considered taking of private property.

2 Reasons to Strictly Enforce a Right to Exclude:

1. Avoid potential violence
2. Protect privacy rights

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Building Encroachments
Pile v. Pedrick, 31 A. 646 (Penn. 1895).
Factory owner built additions for party wall of π property. The part of the party wall was ¾ inch
over the π property.

Golden Press, Inc. v Rylands, 235 P.2d 592 (Colo. 1951).

Π owned property where their residence, garage, and rental cottages are. ∆ built a building that
went over 2 inches over the lot line of the π. When encroachment is unintentional and slight,
π use not affected and damage is small and fairly compensable, the cost of removal is so
great as to cause grave hardship or otherwise make its removal unconscionable, mandatory
injunction may properly be denied and π relegated to compensation in damages.

Ex Ante/Ex Post Problem

Ex Ante Analysis of A and B Property
A builds a warehouse and B has a residence next door.
- As feet of separation increase, A’s value goes down, and B’s go up
- As feet of separation decrease, A’s value goes up, and B’s value goes down.
Maximum Joint Welfare Benefit – cannot negotiate anything better than this for either side.
- In reality this won’t happen because both parties are in a bilateral monopoly situation
- This means that both have their own interests and will haggle and act strategically to
maximize their own position.
When setting damages on the feet of separation from the property line, this will incentivize A to
not take chances of being over the property line in B’s property since the damages would
outweigh the value of A’s property extension.

Ex Post Analysis of A and B Property

This is usually the analysis the courts are susceptible to since they receive an issue to resolve
something that has already occurred.
- If it costs A $50,000 to demolish wall and rebuild a foot away to the boundary line, then
A loses $52,000 including the $2,000 loss in profit. B would only gain $3,000 since the
building would be a foot away. Since A is better off offering anything les than $52,000
and B is better off accepting anything above $3,000, this is a $49,000 difference, much
larger than a bargaining range in an ex ante analysis, which is $1,000 after determining
the maximum joint-welfare result.
- There is still an inefficient outcome of bargaining due to haggling from the bilateral
monopoly issue.

Courts can look at ex post analysis for fairness and distributional concerns or ex ante to
consider incentives for future conduct.

Adverse Possession
Final Principle of Original Acquisition

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 - When owner sits on the right to exclude past the SOL, the original owner is barred from
asserting a right to exclude and the adverse possessor obtains title to that possession.
- The adverse possessor now has the right to exclude to all, including the original owner.
This applies to both real and personal property.
- If someone fails to prevent someone from using property for a particular purpose,
opposed to possessing it and SOL runs, this is a prescriptive easement.

Morengo Cave Co. v. Ross, 10 N.E. 2d 917 (Indiana 1937).

Appelant owned land where the entrance to Marengo Cave was and used the cave for business
to advertise to people to use the cave for observing. Part of cave belonged to appellee’s land,
but was not known for over 20 years, past the SOL. For owner to be deprived of possession
through SOL, possession must have been actual, visible, notorious, exclusive, under claim of
ownership and hostile to the owner of the legal title and to the world at large, and
continuous for the full period prescribed by the statute. Did not apply here, since appellee did
not actually know that the property underneath his was his until recently.

3 Positions to Determine “Adverse Under a Claim of Right”

1. Good Faith Rule: AP subjectively but mistakenly is legally entitled to possession of the
property.
2. Bad Faith Rule (Maine rule; minority rule): AP subjectively believes he is not legally
entitled to possession of property.
3. No Permission Rule (Connecticut Rule): Subjective state of mind is irrelevant; all that
matters is that the AP has not been given permission by TO to use the property.
AP needs to also make improvements and pay the property taxes.

Purposes of Adverse Possession

When SOL runs, ownership is transferred to adverse possessor.
1. Reliance Interest: Fungible to TO and not tied into TO’s personhood. It would be more
demoralizing to take the property away from the AP.
2. Deterrence of TO Sleeping on Rights: Private property can be seen as a system that
delegates managerial authority over resources to private individuals who act as
gatekeepers.
3. Reduces Transaction Costs of Determining Title: Marketable title acts help reduce old
claims; claim not re-recorded within a certain period of time can be disregarded in
establishing title to property.

Howard v. Kunto, 477 P.2d 210 (Wash. App. Ct. 1970).

Lots that were supposedly owned by the homeowners were adversely possessing the land and
actually had title to the lots to the right of them. The neighbor who owned the π lot decided to
convey that title in exchange for the title that they were adversely possessing, leaving the π
hung to dry. Summer occupancy did not matter, because since it was owned continuously
throughout the year, this met the requirement of continuity. Privity of a reasonable
connection between successive occupants constitutes an adverse possession.

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Right to Exclude Exceptions
5 Categories:
1. Necessity
2. Custom
3. Public Accommodation Laws
4. Public Policy
5. Antidiscrimination Laws

Necessity
Ploof v. Putnam, 71 A. 188 (Vermont 1908).
Π had a ship that he, his wife, and two minor children were on when a storm hit and had to
dock on ∆ dock, but ∆ unmoored the boat for being on the property, and those on the boat
were severely injured due to this action. The unmooring of π boat was not a necessity to
trespass on the boat. No necessity to self-help to not withstand loss to property when human-
life is at stake. If the boat however damaged the ∆ property, π need to indemnify for losses.

Custom
McConico v. Singleton, 9 S.C.L. 244 (1818).
Hunter hunted on unenclosed and owned land after being forbidden to do so by property
owner. A hunter has a right to enter unenclosed rural land in pursuit of game without first
obtaining permission from the owner.

Posting Laws- Anyone can hunt on the lands unless it is posted sayng “No hunting” or “No
trespassing”.
- Asserts right to exclude affirmatively.
Fencing-In-Laws- East Coast; livestock owners are responsible for their livestock not escaping
and trampling vegetables or eat grass on a neighbor’s land.
Fencing-Out-Laws – West Coast; if you do not want livestock to damage your property, you are
responsible for the fence.
- Purpose is to allow grazing.

Public Accommodations Laws

Distinguish between private property and property offering public accommodations.
Purpose is to protect access to places deemed to be public and extend access to those who may
be deprived of it.
- Qualified right to exclude
- Non-discrimination for customers; serve on first come, first serve basis and charge
reasonable rates.
- Can only exclude if customer would interfere with quality of service to other customers
or capacity is exhausted.
- Modern law of public accommodations – Title II of the Civil Rights Act of 1964

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Public Policy
Most general of all exceptions to right to exclude. Balances social interest and private interests.

State v. Shack, 277 A.2d 369 (N.J. 1971).

∆ is an attorney and other ∆ is a doctor. Property owner would not allow them on the property
to provide their services to migrant farmers who resided on the property. The issue is that
migrant workers are disadvantaged and inferior in the U.S. and is not a tenant issue. The test
applied is that the services are significant to workers well-being. Fundamental rights cannot be
excluded for an interest in real property rights.

Uston v. Resorts International Hotel, Inc., 445 A.2d 370 (N.J. 1982).
Casino’s rules were favorable to card-counters in blackjack. Π used those rules to do
exceptionally well in winnings. Casino excluded π from playing blackjack and the court ruled
that this could not be done since no rule or law was violated. Cannot have the right to
discriminate against one person to exclude them from a public accommodation without
pointing to a law that they have broken.

Antidiscrimination Laws
Public accommodations is for property opened to the public and antidiscrimination is for
private property not open to the public.

Shelly v. Kraemer, 334 U.S. 1 (1948).

Restrictive covenants signed by neighborhood of homeowners to not allow ownership of those
lots to African-Americans. Creating a restrictive covenant is valid, but one of this nature is not
under the 14th Amendment. Since it is judicial review, this is a state action, and the state
therefore cannot enforce the covenant. State Action Doctrine applies when judicial
enforcement of an illegal act would violate a law and therefore preclude the state court
action as something that cannot stand.

Use of Trespass Actions to Exclude Persons Based on Race

Present trespass of blacks, but allows access to whites.
Title II of Civil Rights Act of 1964 fixed issues that came along with racial segregation.

The Fair Housing Act, 42 U.S.C. §§ 3601-3619

Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994).
Landlord denied rental to an unmarried couple due to his religious beliefs of not wanting to
facilitate a “sinful cohabitation”. Fair Housing Act does not apply here, state law does. There is a
substantial burden on ∆ of being prohibiting from freely exercising his religion, but there is a
compelling governmental interest. A compelling governmental interest can outweigh a
substantial burden on an individual when the burden is due to engaging in a commercial
context.

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Right to Abandon
Can throw away or relinquish all right to the title of property.
- Personal Property – trash, gifts, sale
- Real Property – when there is money owed on property that is greater than what it is
worth.
o Environmental liability being > value of property
Right to Destroy – Demolish, burn, or otherwise eliminate all or most of its value.

These rights are applicable to the sovereign owner of the property

Pocono Springs Civic Association, Inc. v. MacKenzie, 667 A.2d 233 (1995).
Bad investment on property, so ∆ stopped paying taxes on it, haven’t gone there in 10 years, and
had also tried gifting the land back to the condominium association. This was not allowed. Cannot
abandon property unless someone else accepted the transfer of the property.

Eyerman v. Mercantile Trust Co., 524 S.W.2d 210 (1975).

Private road created within the city to create a suburb within the city. Instructions left in will to
raze house upon death because she did not want anyone outside of the family to enjoy the home.
Court denied this since the destruction of her home would disrupt the property value of her
neighbors’ property and is also against public policy because of the beauty of the home. Can
enjoy one’s own property the way one wants as long as it does not affect others’ property.

Takings
5th Amendment of U.S. Constitution: Takings Clause
- “Nor shall private property be taken for public use without just compensation”
- Constrains use of eminent domain by the government and to limit regulations of
property that have an impact functionally equivalent to the exercise of eminent domain;
regulatory takings doctrine
- Battle between property rights and serving the rights of the public interest.

Eminent Domain
Private property cannot be taken for public purpose without just compensation.
- This can be both real and personal property
- “Condemnation”; taking title to property
This use is proper when laying an oil pipeline.
- Goes through 100’s of parcels of privately owned land, and each owner has the right to
exclude or can refuse to sell an easement, creating a bilateral monopoly situation, since
pipeline has to go straight.
- Eminent domain is a liability rule protection.

Property Rule – If B wants A’s property, B must obtain A’s consent to a transfer of property.

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Liability Rule – B can take A’s property using the power of eminent domain in return for a
payment of compensation determined by some official organ of the government like a court.

Power of eminent domain is an attribute of government power of sovereignty and can be

delegated by the legislature. Can have express or implied sovereignty to do this.

Must have authority under both statutory and constitutional requirements:

- Statutory (typically):
1. Must show power is delegated by legislature
2. Broad enough power to encompass proposed project
3. Exercise of eminent domain is “necessary” to complete the project
4. Proper procedures follow for making these determinations
- Constitutional Requirements:
1. Public Use
2. Just Compensation

Regulatory Takings
If government regulates property in an especially severe way, regulation will be deemed to be a
taking of private property as if government exercised power of eminent domain.
2 types of tests for Regulatory Takings
Ad Hoc: Balancing Per Se: on its face, bright line rule
Penn Central Lucas

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

Purpose is to prevent Coal Company from mining under their property in a way to remove the supports
and cause their home to subside. Coal Company has a title underneath the surface to obtain the coal,
but the Kohler Act was enacted afterwards forbidding mining of coal in a way to subside a structure for
human habitation. A fact to consider to see if the police power can be implemented is the extent of the
diminution. This is not a public nuisance and therefore is not a public interest. Regulating coal to take
away the right to mine it makes it commercially impracticable and the Act takes away the property right
just as much as if they actually did. If regulation goes too far it will be recognized as a taking. Police
power goes too far if when the right to mine coal has already been reserved.

Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978).
Landmark applying to Grand Central Terminal. UGP contracted with Penn Central to construct an office
building above the Terminal. Commission rejected proposal since the building proposed would take
away the majestic look of the Terminal. Major theme is to ensure owners of the properties receive a
reasonable return on their investments and have maximum latitude to use their parcels for their own
purposes. Government regulation needs to pass an Ad Hoc Test: (1) Economic impact of regulation on
owner, (2) character of government action (regulatory or physical) government intrusion is regulatory
and not physical, and (3) investment backed expectations are not impaired.

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Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
Π owned a 5-story apartment building in NYC and ∆ installed cable lines on side of building
under NY law. A permanent physical occupation requires payment of just compensation
because it destroys the property owner’s opportunity to exercise 3 basic property rights: (1)
the owner may no longer fully possess the property or exclude others from possessing it; (2)
the owner can no longer exclude others from using his or her property, and cannot make any
personal non-possessory uses of it; and (3) the owner cannot properly dispose of the
property because a permanent physical occupation typically strips the property of most or all
of its economic value.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

Π purchased 2 residential beachfront lots for single family home development, but SC law
barred any permanent habitable structures on these two lots. The regulation went “too far”
since the state’s regulation deprives private property of all economic value, that regulation
constitutes a taking and the owner of the property must be paid just compensation.
Exception: economic uses of private property not originally contemplated by the owner’s title
or property rights when acquiring the property. Temporary regulations do not fall under this
rule, only permanent.

Measure 37/49
- Measure adopted by Oregon for state-wide land use controls to preserve agricultural
and forest land from urban sprawl. If owner can show that a land use regulation
adopted after owner had acquired the land, the reduction in the FMV of the land
affected by the regulation required the government to either compensate the owner for
the reduction in value or waive the regulation.
- Abundance of claims came in, so waived regulation and prejudiced those who
purchased lands after land-use controls were imposed.
- Measure 49 enacted to limit the number of people who can impose claims for this
reason.

The Denominator Problem

- Important to determine how much has been taken
- How to calculate lost value? Taken/Before?
- Penn Coal: (Holmes) Remaining unused value. (Brandeis) Whole Value.
- Temporary takings: Ad hoc rule under Penn Central. Case by Case basis. Also include
diminutions in value. Tahoe was resolved under this where a 32 month moratorium on
development was not found to be a permanent taking.
- EX: Apply Lucas
o Prohibition of building on a wetland, and own 2 acres of dryland and 2 acres of
wetland
o 2/2 dryland can be used, but 0/2 wetland cannot be used, so this is a Lucas
taking

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 o Take property as a whole though, ½ can be used and therefore under Lucas,
there is no taking.

Summary of Takings Law

To determine if taking occurred:
1. Is it Private property? YES
2. Is there a physical occupation? YES  Loretto (permanent taking)
a. Temporary  Nothing explicit, but Penn Central; (property owner would
probably prevail)
If there is no physical occupation, regulatory takings analysis:
1. Regulation preventing nuisance? YES  then no taking
a. If NO, then may be a taking if:
i. Denies 100% of property value – Lucas
1. Less than 100% of value – Penn Central (Ad Hoc)
2. Temporal issue – Penn Central
b. For Lucas to apply, all value must be taken away, not all of the use; Tahoe
modified this.

Public Use Requirement

For a public advantage or benefit. Just need a public interest rationale. Legislature’s
determinations should be adhered to by courts.

Types of Public Use:

1. Government purposes: school or parks
2. Quasi-public; Common carriers; train, utility lines, stadiums
3. Land that is associated with private purpose; Kelo

Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005).

New London has been having rough times and government wanted to revamp the area for tax
revenue and to revive the city. Analyzed Berman v. Parker where a big area was blighted and a
private developer came in and got rid of the blight and Hawaii housing Authority v. Mitkiff
where private interests can be thwarted for public purpose to break up land oligopoly. Public
does not have to actually have use of the property, just need a public purpose.

Exactions
An agreement by a developer to donate certain property or money to the local community as a
condition of obtaining approval from authorities to proceed with the development.
- Existing property owners like exactions because improvements are made to benefit
them without an increase in tax or other financial burden.
Dolan v. City of Tigard, 512 U.S. 374 (1994).
Π wanted to expand building and size of it, but exaction imposed for pathway to meet resulting
increase in foot traffic and greenway to thwart flooding. The costs need to be roughly
proportional to the development. The government may not, without just compensation, place

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land use conditions on an approval of a private property development plan unless there is a
“rough proportionality” between the conditions and the impact of the proposed
development.

Steps for Exactions:

1. Does this meet goals of the city? If YES, then:
a. Is the degree of the exaction proportional to the land use? If YES, then exaction
is affirmed.

Estates in Land
*Start with the present interest to know the corresponding future interest or vice versa*
Access to resources can be divided along a number of dimensions including the sharing of
assets.
Purpose was to encourage investment and increase overall wealth
- Divisions built within the title itself
- Forms of ownerships that evolved over time for freehold interests in land
Divisions By Time
- Estate – type of property right and measures a person’s interest in the land in terms of
duration.
- Interest may be a present possessory interest or future interest (becomes possessory at
happening of some future event)
Freehold Interests
- Excludes leases and is a system of rules created to determine who obtains title of
property after current homeowner. Determines who gets the property in the future.
- Undivided fee simple and 2 types of lesser property rights that leave room for future
interests:
o Life estate and defeasible fees
- Recorded in land registries; short term leases are not.
- Holding a property in fee, entitles the landowner to build, have the right to exclude,
right to use, transfer, right of quiet enjoyment, and have ownership in it forever.
- Limits On Fee Ownership Entitlements: excusable trespass, overflights, excuse of
necessity, zoning, intestacy, cannot abandon, disclaimer, takings, Fair Housing Act,
record deed (formalities when transferring property).

Present Possessory Interests

1. Fee Simple Absolute
o Largest package of ownership rights, where others are carved.
o No natural end, so owner can designate successor via gift, sale, or will
o If owner dies intestate, typically spouse, children, or various blood relatives as
person’s heirs will take property in fee simple.
o In a transfer, transferor is presumed to give all that she has, unless indicated
otherwise.
o If A grants Blackacre to B; this creates a fee simple

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 o Look for: “To A in fee simple” or “to A and his/her heirs” for creation of fee
simple
o Heirs are not until death, while alive, they are heirs apparent. Heirs apparent
only have a mere expectancy in a land, but no interest. Only has a chance of
obtaining property upon A’s death if there is no will.

2. Life Estate
o Comes to a natural end with death of a named person, usually the holder of the
estate.
o O grants Blackacre “to Marge for life, and then to Lisa”
 Marge has a life estate with a remainder in fee simple to Lisa
o Alienable by gift or sale, but purchaser receives a life estate pur autre vie, having
to rely on Marge’s life span as the measuring time of ownership. (not very
attractive)

3. Defeasible Fees
- These interests end on the happening of a named contingency. Future interest can
become possessory when such contingency occurs.
3 distinct and closely related varieties:
a. Fee Simple Determinable
 Ends automatically upon occurrence of a named event.
 O grants Blackacre “to Springfield aw School as long as it is used
for instruction in the law, then to O”.
 “As long as” is a limitation for duration, not a condition.
b. Fee Simple Subject to Condition Subsequent
 Continues indefinitely except that, upon happening of the named event –
the condition – the interest does not automatically end but can be ended
by action by grantor.
 O grants Blackacre “to Springfield Law School, but if it is not used
for instruction in the law, then O has the right to reenter and take
the premises”.
 O has the “power of termination”
c. Fee Simple Subject to Executory Limitation
 Follow by an interest not reserved to the grantor – granted to some 3rd
party at the time of conveyance of the present possessory estate.
 Shifting Executory Interest when it divests interest of a 3rd party.
 O grants Blackacre “to Springfield Law School as long as it is used
for instruction in the law, then to Springfield Animal Hospital”.
 O grants Blackacre “to Springfield Law School, but if it is not used
for instruction in the law, then to the Springfield Animal Hospital”.
 Springing Executory Interest when divests interest in the grantor.
 O grants to A for Life, then B gets Blackacre 5 years after A dies.

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Future Interests
- After fee simple absolute
- Rules between interests retained by grantor and interests created in a 3 rd party.
- Cannot use as collateral for loans.

Future Interests Retained by Grantors

- If one has a future interest, one also has to ask what present possessory interest one
would have if the interest becomes possessory
1. Reversion
o Follows the natural end of a life estate and in other contexts in which an owner
has not disposed of the entire fee simple.
2. Possibility of Reverter
o Interest reserved to the grantor that follows a fee simple determinable. O
automatically gets property back if limitation built into fee simple determinable
occurs.
3. Right of Entry (Power of Termination)
o Interest retained by the grantor that follows a defeasible fee, but preceding
defeasible fee must be a fee simple subject to condition subsequent. If
condition is not fulfilled, O has right to change legal relations by either
attempting a physical entry or bringing an action to recover possession of the
land.
o If this is not carried out, and subsequent owner stays there, right of entry may no
longer be exercisable due to Doctrine of Laches.
 Right of entry must be exercised within a reasonable time, which is
usually SOL.

Future Interests Created in a Grantee

1. Remainder
o Follows a life estate, never a fee simple, unlike the reversion which is for the
grantor, this is for the grantee.
o If remainderman dies prior to death of person with life estate, then B’s heirs get
property interest.
a. Indefeasibly Vested
i. Identity of takers is known and there is no other contingency, only the
natural termination of the preceding interest.
ii. Indefeasibly vested, since no condition subsequent can cut short the
remainder.
iii. upon death of life tenant, remainderman obtains a fee simple absolute.
b. Contingent
i. Condition precedent; need to first satisfy condition to receive possession;
condition not satisfied, reversion back to grantor.
ii. If life tenant died prior to remainderman fulfilled condition, then
reversion goes back to grantor until remainderman fulfills the condition.

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 iii. Marge grants Blackacre “to Homer for life, then to his children and their
heirs”.
iv. Uncertainty about identity of taker or whether condition for its
happening will be fulfilled.
c. Vested Subject to Complete Divestment
i. remainder is vested, but not indefeasibly so. This occurs if the occurrence
of a condition can cause the interest to shift to someone else.
ii. Follows a fee simple condition subsequent
iii. Marge grants Blackacre “to Homer for life, then to Bart, but if Bart fails to
graduate from high school by age 19, then to Lisa”.
d. Vested Subject to Partial Divestment (or subject to open)
i. Subject to open means more members could enter class by being
Homer’s children.
ii. Marge grants Blackacre “to Homer for life, then to his children and their
heirs.”
iii. At time of grant, Homer is father of Bart and Lisa (but not yet Maggie)
2. Executory Interest
o Future interest in a transferee, but this is an interest in a transferee that divests
or cuts short a previous interest.
o This interest does not become possessory upon the natural end of preceding
interest.
o Marge grants Blackacre “to Bart, but if alcohol is ever consumed on the premises,
then to Ned Flanders”.

Vesting
- An interest vests in possession when the interest becomes a present possessory one.
- An interest can vest in interest before it vests in possession.
- Vesting in interest means that various types of uncertainty about the interest have been
resolved.
o Vesting in interest is important for remainders, since an interest is for the future
possessory interest.

Disclaimer
A power of an owner is to make a gift, but a valid gift requires acceptance by the donee. The donee is
not required to accept a transfer of property interest when it is not wanted.
- The disclaimer requires a clear and unequivocal expression, and accepted any benefit of the
asset in question defeats any attempt at disclaimer.
- May disclaim to avoid tax consequences of a double transfer in a family with wealth so it can
then go to the next taker.
- Property also may have a negative value, and inheritance can hurt instead of help the taker.

Summary of Estate Interests

Present Interest Examples Typical Future Interest

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Fee Simple Absolute  O grants Blackacre to M None
 O grants B to M in fee simple None
 O grants B to M and her heirs None

Life Estate  O grants B to M for life  Reversion (in O)

 O grants B to M for life, then to N
 O grants B to M for life, then to
her adult children
 O grants B to M for life, then to N
if Condition © occurs
 O grants B to M for life, then to N,
but if C occurs, then to K
 O grants B to M for life, then to
her children [N was the only child
at the grant]
 Remainder; indefeasibly vested
 Remainder; contingent
 Remainder; contingent
 Remainder (in N); vested subject
to complete divestment
 Remainder (in N); vested subject
to partial divestment/subject to
open

Fee Simple  O grants B to M as long as C  Possibility of reverter (in O)

Determinable occurs, (then to O)

Fee Simple Subject to  O grants B to M, but if C occurs,  Right of entry/power of

Condition Subsequent then O has the right to reenter and termination (in O)
take the premises

Fee Simple Subject to  O grants B to M as long as C  Executory interest (in N)

Executory Limitation occurs, then to N
 O grants B to M, but if C occurs,
then to N

Waste
Life tenant is obligated to deliver the property in essentially the same condition or use as when
the life tenant took possession. Waste occurs when possessory life tenant permanently impairs
the property’s condition or value to the future interest holder’s detriment.
Voluntary/Affirmative
When a life tenant actively changes the property’s use or condition, usually in a way that
substantially decreases value. A court will enjoin affirmative waste. Defined by what is normal
use of the property and is akin to misfeasance. Open Mines Doctrine: any extraction of minerals
was waste unless open mine was present on property at the beginning of the life estate.
Permissive
Akin to nonfeasance- the life tenant fails to prevent some harm to the property. Includes duty
to make ordinary repairs, pay interest on debt, to pay taxes and assessments and sometimes to
pay insurance. A court will award damages. Ex: failure to repair a lawn irrigation system
resulting in dead grass, shrubs and trees was permissive waste.
Ameliorating
Waste that benefits remainderman’s interest. In evaluating the court looks at the life tenant’s
expected remaining life, the need for change, and the good faith of the life tenant and future
interest holder in proposing or opposing the change.

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Brokaw v. Fairchild
Π brought action seeking authority to tear down the single family residence on a parcel in NYC
he was willed as a life estate to construct a 172-room apartment building. Π expected
$30,000/year profit instead of the net loss he received year. Court denies Π as inheritance
directed to provide residence or rental profit to remaindermen, removal of the house would not
benefit other remaindermen and would permenantly deprive them, furthermore it is an act
of ownership and dominion.
Restraints on Alienation
Disfavored by courts for public policy reason; alienation is a fundamental Blackstone property
right. Defeasible fees seeking to restrain alienation will also be struck down
O grants Blackacre to A in fee simple so long as A does not alienate, then to O
Rule Against Perpetuities
Go Fuck Yourself With a Cactus

Shared Estates
Governance scheme needed to resolve conflicts between co-owners.
- Helps determine norms of the use of that property and the care for it.
2 ways of solving problems faced by co-owners against this governance scheme:
- Exit from relationship; action for partition
- More detailed governance rules
Co-Ownership
Tenancy In Common
- Each tenant in common has separate but undivided interest
- No right of survivorship, the share of each tenant in common passes on death a part of
his/her separate interest.
- Undivided in the sense that each tenant in common has the right to possess the whole
of the property.
o A owns 60% interest and B owns 40% interest, each tenant in common has an
equal right to possess the whole, but their respective share of rents or profits is
determined by their respective percentage of ownership.
- Only unity required to create a tenancy in common is possession.

Joint Tenancy
- Tenancy in common + survivorship: means surviving joint tenant automatically acquires
the interest of another joint tenant when the other tenant dies.
- Requires 4 unities at the time of creation:
o Time: Each interest must be acquired or vest at the same time
o Title: Each must acquire title by the same instrument or by joint adverse
possession, never by intestate succession or other act of law.
o Interest: Each must have the same legal interest in the property, such as fee
simple, life estate, lease, etc. although not necessarily identical fractional shares.
o Possession: Each must have the right to possess the whole.
- If one of these unities is destroyed, then a tenancy in common is created.

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Tenancy by the Entirety
- Minority rule; only available for married couples; joint tenancy + marriage; 5 unities with
marriage.
- Separate and undivided interest and each has the right to possession as a whole.
- Right to survivorship
- Difference is neither spouse can unilaterally transfer or encumber their share of the
property without consent of the other.
- No unilateral exit option as long as the couple stays married.
o Neither on his/her own can sever the tenancy, other than getting a divorce; can
convey to a 3rd person (straw) and the straw can convey back to them as tenants
in common.

Language Creating Co-Ownership

- When property is conveyed to “A and B”, it is presumed that it is a tenancy in common
- To create a joint tenancy it must be stated, “to A and B as joint tenant with right of
survivorship and not as tenants in common”.
- To create a tenancy by the entirety it must be stated, “to A and B as tenants by the
entirety”. They would also have to be married.
- Ambiguous transfer to a married couple is often presumed to be a joint tenancy, since
this is implied in a state that does not have a tenancy by the entirety.
How to Choose Arrangements?
- Survivorship feature avoids probate
- Joint tenancy protects jointly owned assets from creditors of one of the co-owners
- Tax considerations
Community Property
- Some states in South or West have community property for married couples
- All property acquired during marriage automatically becomes community property
- Any alienation must have consent of both spouses
- Hard burden to prove that property that is considered community property is not.

Partition
- Most important legal remedy to concurrent owners
- Can sue for partition for any reason or no reason at all. This splits the property in equal
shares.
- Automatic right to terminate co-tenancy at any time
- Available to tenants in common and joint tenants.
- Owelty – payment to correct imbalance in a partition in kind.
o Partition affords each co-owner an avenue for exit and the threat can help
protect her interests.
o Exit Options: Exit, voice, and loyalty; often takes place in condominiums and
cooperatives or in many private organizations and groups.
o Partition by sale can cause a cash-strapped co-owner to lose subjective value.
o Much more judicial intervention in co-owner relations than having a de-
emphasis on an easy partition.
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 o Can contract to limit partition or to bar a partition, but cannot be an
unreasonable restraint on alienation.

Delfino v. Vaelencis, 436 A.2d 27 (Conn. 1980).

Π and ∆ owned plot of land as tenants in common. Π owned undivided 99/144 interest and ∆
owned undivided 45/199 interest. Π want a partition by sale due to ∆ operation of a trash
removal business. ∆ moved for partition in kind. When dividing jointly held property, a
partition in kind is favored over a partition by sale. Partition by sale only if partition in kind is
impracticable or inequitable, and when the interests of the parties would be better suited by
sale. Partition in kind is practicable in this situation.

Contribution and Accounting

Limited regulations of inputs and outputs between co=owners

Gillmor v. Gillmor, 694 P.2d 1037 (Utah 1984).

Π and ∆ owned equal shares of 33,000 acres of land for cattle grazing. ∆ used it exclusively and
did not allow π to use since additional grazing would damage the land and π claimed an ouster.
An ousted cotenant may recover her share of rents and profits from land held jointly or in
common. Ouster occurs when one cotenants acts in a way that “necessarily excludes” another
cotenant by necessarily depriving her of the free and unobstructed use and possession of the
common property. A cotenant not in possession is liable for her share of necessary repair or
maintenance costs. Improvements done without the consent of the cotenant were necessary
to improve the land for grazing, and therefore the π here is still liable for her share of necessary
repair or maintenance costs.

Property Division on Divorce

Special rules for marital interests emerge primarily in the context of divorce and inheritance
- Defines a spouse’s exit options
- Often done through equitable division in CL states
- Issues in marital property law is how to define property for purposes of divorce and how
to treat increases in human capital during the marriage.

O’Brien v. O’Brien, 489 N.E.2d 712 (N.Y. App. 1985).

Π enrolled in medical school and to pay for their living expenses while π was in school, his wife
∆ put her eductio on hold and got a job and contributed all of her earning to their living
expenses and maintained the household. He filed for divorce after obtaining his medical
license. In making an equitable distribution of marital property, the court considers any direct
or indirect contribution to the acquisition of the property. Since the medical license is
considered marital property since it was obtained during the marriage and is a professional
interest, and has substantial value that was obtained during the marriage. Since ∆ contributed
substantially to the acquisition of the medical license and should be compensated accordingly.

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Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).
Π and ∆ lived together without marrying. ∆ was married at time cohabitation began, but
subsequently divorced. They both agreed to hold themselves out to be husband and wife and
pool all of their assets and efforts to share fruits of such equally. Also agreed she would abstain
from working to uphold the household. One partner of an unmarried couple may seek to
recover form the other under the same rights of action available to other unmarried persons,
including express contract, implied contract, and equitable theories. Just as two people
outside of a romantic relationship may form an agreement with respect to their finances and
assets, so too may a couple who live together but are not married. This is an express agreement
that is binding and a constructive trust would be imposed if there were no express agreement.

Marital Estates
Condominium, Cooperatives, and Common Interest Communities
Condominium
Managed by 3rd party formally, individualized in common facility, typically residential, created
by statute and recorded covenants, conditions and regulations govern maintenance, services,
nature of ownership, common areas and rules. One owns their unit “to the walls” like a fee
simple. Sometimes association owns exterior façade of the unit. Higher property taxes because
they are individual assessed but mortgage interest deduction. Occasionally converted from
rental units.
Cooperatives
Ridiculously exclusive, look into applicant’s financial background because corporation
mortgages building and residents buy in shares. Board makes large scale building decisions.
Prevalent in NYC, subject to FHA but high risk of discrimination.
“Inertia Theory” that the people of NYC are more familiar with.
Common Interest Communities
Full ownership of home. Subject to HOA rules such as age restriction (under 55 & based on
children OK). Gated communities are a common type. Pros: Civic involvement, amenities,
security, status symbol, live with like-minded people (very homogenous). HOA enforces CC&R’s
and can create new rules. Limit liability via corp. structure; more stable, lots of corp. law,
typically 1 unit 1 vote. Can encumber property w/ liens, set fees & “taxes” like local gov’t.
Nahrstedt v. Lakeside Village Condominium Association, Inc (Cal. 1994(
Π purchased unit and moved in with three cats, when ∆ discovered the cats they demanded their
removal. Π sues arguing the restriction was unreasonable as the cats did not leave unit. Court
gives rule a presumption of rationality the Π did not overcome. Common interest development
use restrictions are enforceable unless unreasonable. Presumption of rationality prevents
frivolous lawsuits and rules are viewed as a whole and not on an individual level.
40 West 67th Street v. Pullman
∆ cooperative apartment voted in a special Board meeting, which Π Pullman was invited to but
chose not to attend because of his baseless complaints, conflicts with tenants, frivolous lawsuits
and modification of his apartment. Court applying RPAPL 711 requiring landlord show by
competent evidence that the tenant is objectionable used the Levandusky to satisfy this.
Levandusky rule defers to business judgment as long as corp. has acted within scope;

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furthered corp. purpose; and acted in good faith. Coop tenants are afforded less protection
than regular tenants.

Landlord Tenant
Leases
Commercial, agricultural, residential, mineral leases, surface leases. Often to hedge risk,
cheaper (no down payment or maintenance costs) and resource pooling is easier.
1. Term of Years: Fixed period, auto termination. Early end date require
notice/fee. Staying longer is typically ok
2. Periodic Tenancy: fixed period, auto renewal. In CT w/o fixed term
periodic is assumed. Requires notice on both * timing is important
3. Tenancy at Will: Requires notice of 1 payment period to terminate
4. Tenancy at sufferance” Hold over tenancy

Tenant Rights
Form Lease
Licenses

Title Issues
Introduction to Title
- Document that describes ownership right in a property interest and recorded in a
central location (usually clerks office at town hall) to provide notice to the public.
- Purchasers and lenders are main users of title records, so their minds can be at peace.
- Good title records promote transferability
Transfer and Alienability
- Can appoint a successor of title
- Promotes efficient allocation of resources
- Many transaction and information costs
- Conflict prone method of transferring property interest opposed to adverse possession
and eminent domain. Voluntary transfers are much smoother.
- Constraints on how to transfer property to make it easier to do so.
o EX: Requiring seller to record sale in writing for major transaction.

2 Basic Ways to Transfer Property:

- Exchanges (quid pro quo): Law of exchanges  Contract Law
- Gifts (receives nothing in return): Law of gifts  Trusts and Estate Law

Rules Designed to Enhance Transferability

- Common property for example is meant to be stable and long term, and therefore is not
fully alienable, such as grazing commons are.
Statute of Frauds
o Certain important transfers of property must be memorialized by a writing

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 o Transfer in land cannot be assigned unless it is by deed or note and signed by at
least one of the parties.
o Enables transfers of property to be done with less cost and more frequently;
parties do not need to worry about fraud.
The Delivery Requirement
A transfer takes place only if the thing being transferred or some evidence of title is delivered to
the transferee.
Deed – a formal writing evidencing a transfer
- Must be delivered to transferee; otherwise if not delivered to transferee, the transfer is
not valid.
- Must be signed, sealed, and delivered
- Same applies to a gift or the actual object must be delivered itself.

Land Demarcation
2 Broad Categories of Demarcation Systems:
- Metes and Bounds System: land boundaries are marked using monuments like rocks,
trees, and other structures as well as compass directions, distances, and angles
(“courses and distances”). Used in Eastern states. Description consists of directions of a
trip around the perimeter of a parcel.
- Rectangular Survey: defines rectangular plots of any size, references latitude and
longitude. Nearly all of the land in the federal public domain was eventually surveyed
and disposed of using this system. This is why rural roads in most parts of the country
run along straight lines (section lines), why most farms are square in shape, and why
most lots in cities are rectangular. Established by Land Ordinance of 1785.

Rectangular is more expensive to set up, but leads to more certain descriptions and is easier to
use on an ongoing basis. Metes and bounds can be tailored to rugged terrain.
- On a rectangular survey, the terms are read backwards to trace the language to the
diagram.

Nemo Dat
“One cannot give that which one does not have”
Derivation Principle: If someone owns something because someone transferred it to them, it is
normal to only have what the previous owner had and nothing more. Transferee’s rights derive
from the transferors. Also referred to as “Prior in time is prior in right”
- EX: A transfers interest to B, but mistakenly sells to C, B owns the property under nemo
dat. A had the rights to transfer to B, and therefore, B now has the rights to transfer. By
nemo dat C gets nothing.
- Based on this principle, current owners should be able to trace their ownership all the
way back to the original acquisition.

Kuntsammlungen zu Weimar v. Elicofon

Germany brought suit to recover a set of paintings that were sold to ∆ after the Allied Forces
occupied Germany in 1945. The portraits were bought by ∆ in America from a serviceman a
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year later. Π museum had possession of paintings before disappearance. ∆ was required to give
the painting back because, one cannot acquire good title from someone who has obtained the
property other than by operation of law; need to be a good faith purchaser or adverse
possession. Thieves cannot acquire good title unless through adverse possession, and here that
was not the case. Thief did not have title to the property.

The Good Faith Purchaser

Exception to Nemo Dat
2 Elements: Good faith + Purchase
Fraud and check bouncing makes title voidable
- EX: A sells goods to B, but B’s check bounces. B sells goods to C. As long as C purchased
goods in good faith, without knowledge of flaw in A-B transaction, then C has title to the
goods as a good faith purchaser.
o UCC §2-403
o Void title (theft) – gives no power to create rights in another; nemo dat applies
o Voidable title – gives power to transfer to a good faith purchaser for value; nemo
dat does not apply
- those who accept a gift cannot benefit from nemo dat exception, because nothing was
purchased for value.

Kotis v. Nowlin Jewlery, Inc.

Brother acquired Rolex watch from ∆ by forging brother’s check. Π was going to buy from the
thief unknowingly for an unusually low price. Applied UCC §2-403. Need a voluntary transfer to
give purchaser voidable title and test for good faith is the actual belief of the party, not the
reasonableness of the belief. Low price for Rolex gives enough evidence to π to know watch
was stolen and therefore void title.

Notice Required for Actual Belief of a Good Faith Purchaser

- Actual Notice – know of relevant facts
- Inquiry Notice – reasonable person knowing what one does not know would have
engaged in further inquiry and would likely have led to actual knowledge of relevant
facts.
- Record Notice – registry that contains documentation on property
- Constructive notice – often considered from inquiry or record notice
Scope of good faith purchaser exception is determining who bears the loss.

Hauck v. Crawford
Canceling deeds for mineral rights that were wrongfully given because grantor was fraudulently
obtaining the title from the π who was an under-educated farmer. ∆ were bona fide purchasers
of the sale of these mineral rights. When original owner has a lack of care in the face of fraud,
a title is voidable to protect good faith purchasers. UCC does not apply here; purchase of real
property.

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Proving Ownership
What constitutes notice and how can notice be provided in a way that is generally cost-
effective?
- Combinations of possession, markings on assets, and records
- Possession of title or property
- Showing ownership via contract proves it between the Buyer and Seller, but not to 3 rd
parties.
- Possession-Based Rule – just need to possess it; adverse possession complicates this.
- Filing + Recordation – less misunderstanding of title. Lenders and 3rd parties interest in
purchasing, taxes, security for owner of property care about this.
o This is appropriate for expensive property, such as real property.

Registration Recordation
- Resolve issues immediately - Resolve issues later
- More binding/secure - Less binding/secure
- More expensive - Less expensive
- Less uncertainties - More uncertainties
- More accurate - Less accurate
- Ex Ante - Post Ante
- Someone centralized verifies if title is - No centralized verification of title to
good property; up to the private parties to
search

U.S. has recordation system, but registration seems much better. Recordation system however
passes costs on to private parties and is much cheaper to manage.

Recording Acts
Notice statutes preserve good faith purchaser rule and recordation would provide constructive
notice to subsequent purchasers.
Recording acts require public officials, such as the clerk or recorder of deeds, maintain an office
in which deeds and other documents affecting title may be recorded.
- Title Search - tracing series of transactions in grantor and grantee indexes from a would-
be transferor back to a “root of title” and tracing it forward.
Marketable Title Acts – allows for search to stop at some date in the past, around 30 or 40
years in the past rather than tracing the title to the root which may be unnecessary and
impracticable.
- Trace back through grantee index, and then trace forward in grantor index.
o Date of execution of the deed to that person and the date that the deed from
that person to the next person was recorded needs to be sought for in the
grantor index. Any transfer outside of the period before the execution of the deed
to X and after the recording of the deed from X is outside of the “chain of title”
and would therefore not provide constructive notice. Good Faith purchaser
exception of nemo dat would apply.

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3 Types of Recording Acts in U.S.
- Race - winner of race to record prevails. 2 states have this statute.
o If O sells to A, and then sells to B, but B records before A, then B has title; A has only a
claim against O.
o Exception to nemo dat, and partial exception to good faith purchaser. Actual notice is
irrelevant.
- Notice - subsequent bona fide purchaser wins unless he has notice (actual, constructive, or
inquiry), and a recorded interest gives constructive or record notice.
o Want to record immediately to protect from subsequent good faith purchaser
exception.
- Race-Notice - subsequent good faith purchaser wins only if he has no notice and records before
the prior instrument is recorded.
- Mixed Regimes - may apply different regimes for mortgages and deeds.
o Some state have a grace period where bona fide purchaser prevails over prior grantee
only if the prior grantee fails to record within the grace period.

Recording Doctrines Based on Chain of Title

The Shelter Rule
- Some transferees are covered under exceptions even when they are not good faith purchasers.
O sells Blackacre to A, and then subsequently sells to B who has no notice and purchased it with
value. B gifts the property to C or sells to C even though C was aware of the prior transaction
from O to A.
- C prevails against A, since B is the intervening act that prevailed against A and B is now given all
the attributes of ownership, including the right to make normal nemo-dat style transfer of the
property
Limits of Shelter Rule - Original Owner Exception: B cannot sell back to O. Opportunities for
collusion would be too great.

Legally required to search for protection of good faith purchasers. This would also reveal constructive
notice.
Some Problems with this:
The "Wild Deed": if a grantee records before her grantor, the grantee's deed is a wild deed since it is
not connected up to the common grantor by a continuous chain of recording
- EX: O grants to A who does not record, and also grants to B, who does not record. B conveys to
C, and C, A, and B record in that order. C's deed is wild and is a stranger to the title.
- Searchers of C would not be able to have constructive notice of B's title since it was not
recorded. Wild deed does not grant exception as a good faith purchaser to nemo dat.
Late (and Early) Recorded Deeds: if a title is recorded so late that another branch of title gets started in
the meantime.
- EX: O sells to A and then to B, who has actual notice of the O to A sale. B records and then A
records. B then sells to C who has no actual notice of the O to A sale. C then records.
- Shelter rule does not apply to C, since C is a good faith purchaser of value and did not have
notice of the transaction of O to A. C would have good title. But if searched from grantor, O, all
the way down to the present, A's deed would be there, and C would therefore have constructive
notice.
- Issues when someone conveys land before acquiring it; earlier conveyance is outside the chain
of title or a later purchaser and would not furnish constructive notice.

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 - EX: O conveys Blackacre to A, then acquires Blackacre and records, and conveys it to B, B would
prevail since there was no way that B would know through a search that A had land conveyed to
him.
"Mother Hubbard" Clauses: general description of a collection of lands without specifically enumerating
them in deeds.
- Description may be valid between the parties, but not impart constructive notice to third
parties. The description cannot be indexed properly and a subsequent purchaser would have a
lot of investigating to figure out which parcels the deed covered and what happened to them.
Grantee of this deed should file in the land records an affidavit with a specific description of the
lands conveyed or covered.
Restrictions on Adjacent Tracts: Owner may convey parcels while restricting retained land. Common
with subdivisions. Searchers need to look for subdivisions.
Improper Indexing: a majority of courts have held that indexing is not part of recordation and so not
essential to the giving of constructive notice.
- Variants of the same name.

Hood v. Webster
Husband of π owned a parcel of land and devised in will that if wife predeceased him, he
wanted her to give estate to his brother. Π executed deed for his brother and left in escrow to
convey to him upon her death, but before that conveyed a deed to ∆, her brother and nephew,
where they then recorded. She died a few years later, and escrow recorded other deed. Not a
good faith purchaser since there was no substantial consideration for the conveyance of the
real property. Honored husbands will.

Limits of Title Searches

- Clean title search is not the end of the story. Off-record matters may still be blind. Need
to also consider equitable interests in conveying title in accordance with nemo dat
principle. Prior equitable interests, beats later equitable interests; same as nemo dat
principle.
- Prior equitable interest prevails a later legal interest if it was acquired for value and
without notice. Good faith purchaser
- Adverse possession is not within records since it starts a new chain.

Mugaas v. Smith
π claimed a strip of land on ∆ property under AP. Claim of adverse possession is binding upon a
bona fide purchaser even in the absence of publicly recorded notice of the claim.

Servitudes
Contracts that bind successors in ownership as to the enjoyment of one’s land
2 Types of Servitudes
Easements Covenants
- Functionally like a contract in which - A contract in which an owner agrees
an owner agrees to waive his/her to abide by certain restrictions on the
right to exclude certain kinds of use of his or her land for the benefit
of one or more others.

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 intrusions by another and give the
other a right to use.
- Prescribe affirmative behavior on part
of the burdened landowner.
- Property right; in rem effect: 3rd
parties may not interfere with the
performance of rights
- More of a governance mechanism
than easements; used to restrict a
commercial use for maximum building
height, and door color.
- Sometimes run with the land if
certain conditions are met.
- Not a property right; in personam
effect: based on parties in contract to
sue.

Easements
Creation of Easements
- Can be created only by grant.
- Grantor must deliver to grantee a deed to the property; seal requirement is mostly lightened
- Since it is an interest in land, SOF applies, requiring it to be in writing
- Easement can also be created with a reservation to the grantor; A grant B of a possessory
interest in Blackacre, A reserves an easement over Blackacre; Cannot create a grant by
reservation in a 3rd party though.
- To create easement: get lawyer to draft deed in writing, follow formalities, and record the
instrument in local registry of deeds.
- When this is not followed, and neighborly easements are created, doctrine has been created for
an implied exception to the requirements of the SOF.

Types of Easements
Easements appurtenant: Belongs to another parcel of land
- Whiteacre and Blackacre are adjacent parcels. A owns Whiteacre, B owns Blackacre. A grants B
easement appurtenant to cross Whiteacre to reach Blackacre.
- It belongs to whoever owns Blackacre, and the burden belongs to whoever owns Whiteacre. This
easement is carved out of Whiteacre.
- Blackacre is the dominant tract (benefited tract or enhanced) and Whiteacre is servient tract
(burdened tract or carved out tract)
- B sells to C, C now has right to use easement, and B no longer has the right to use the easement.
Easement in gross: belongs to a particular grantee
- B sells to C, B still has right of easement, and C does not. B has been granted the easement
personally. C needs her own easement.
- Recreational easements are not an inheritable right and is not transferable; only granted if the
easement is of a commercial character, such as a railroad.
Profit a prendre ("profit"): right to enter on land of another in order to extract something of value, such
as timber or fish from a lake)
- Can be used to permit extraction of surface minerals, such as sand or gravel, but deep rock
mining such as, oil and gas, is governed by mineral leases.
- Governed by same rules as easements appurtenant.
- As long as profit continues to last, this easement is irrevocable.

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Affirmative Easements
- Permit easement holder to perform some affirmative act on the land of another.
- Permitting action on a servient tract that would otherwise be trespass or a nuisance if there
were no easement.
- Virtually all easements are affirmative

Negative Easements
- Permits easement holder to demand that the owner of the servient tract desist from certain
actions that might harm the easement holder.
- 4 narrow categories:
1. Blocking sunlight from falling on windows on dominant tenement
2. Interfering with flow of air in a defined channel to dominant tenement
3. Removing lateral support to a building on the dominant tenement
4. Interfering with flow of water in an artificial stream to the dominant tenement.
- English courts held these 4 categories had to be provided through prescription
- Covenants will be drafted to run with the land to accomplish a negative duty on the servient
landowner to desist from taking action that may harm the dominant tract.

Private Easements
- Authorize specific named parties (individuals or enterprises) to use land for designated
purposes.

Public Easements
- Authorize general public to use land for designated purposes.
- Other option opposed to government holding fee simple subject to a trust obligation to the
public, such as public road, highways, and navigable waterways.
- Public access to beaches, bike trails, and portages are more likely to be held as public easements
than are roads and highways.
- Public may hold negative easement such as scenic easements, conservation easements, or
historic preservation easements.

Termination of Easements
- By deed: Releasing or extinguishing the easement
- As a matter of law: When dominant and servient tract come under common ownership
- Adverse possession or prescription: If owner of servient tract blocks easement and owner of
dominant tract fails to object before the SOL runs, the easement will be extinguished.
- Prolong nonuse gives rise to an inference that easement has been abandoned: Changed
circumstances are not usually ground for modification or termination of easement unless
easement is stated in terms of a particular purpose that has become obsolete. Rails-to-trails
projects bring dispute over purpose of easement and reversion back to servient tract owner.

Baseball Publishing Co. v. Bruton

Π engaged in business of controlling location for billboards and signs and contracting with
advertisers for exhibition of posters obtained from ∆. ∆ refused to continue to advertise
property of π, so π sued for specific performance. This was an easement in gross where it is:
granted among the possessor, not created by granting ownership, required in a writing as an
SOF, requires a deed apart from prescription, and in equity no seal required.

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Fontaineblaeu Hotel Corp. v. Forty-Five Twenty-Five, Inc.
∆ wants to add addition to hotel, but π hotel would have their cabanas and swimming areas
during prime sun-time inhibited due to this from a shadow cast during winter months. Makes it
unfit for enjoyment of guests. No easement for something that is not a legal right. No right to
enjoyment of light and air at CL or statute.

Covenants
Promises respecting the use of one’s land
- Mostly are affirmative

3 Theories for Covenants to Run with the Land

Equitable Servitude – if injunction is sought, matter lies in equity
- Bring specific performance action
o For Burden: intent, actual or inquiry notice, touch and concern
o For Benefit: intent and touch and concern
Real Covenant Theory – if damages are sought, matter falls on CL side
- Bring damages action; Need to establish
o For Burden: Intent for burden to run, horizontal privity, vertical privity, touch
and concern
o For Benefit: Intent to run, vertical privity, touch and concern
Theories do not change use of the land, just how successors are bounded to these promises.
A and B stand in horizontal privity and successors stand in vertical privity.
R3P §2.1: Creation of Servitudes that is grounded in contract and party intent
- Abandons touch and concern and privity requirements and enforceability is default of
running to successors remaining strongly contractarian. Exceptions are public policy,
unconscionability, etc.

Sanborn v. McLean
∆ owns subdivision where dwelling is occupied by her and husband. Began building a gas
station on lot in high-grade residential lot. Π contends proprietors of subdivision claim
proposed gasoline station would be nuisance per se in violation of general plan fixed for use of
all lots for residential purposes only; evidenced by restrictions on plurality of properties. This is
a reciprocal negative easement where a lot that has been sold by a common owner with
specific conditions on use of the land must be abide to since the neighboring properties that
were owned by this common owner invoked these covenants.

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Land Use Regulation
Nuisance
Zoning
Exclusionary Zoning

38