syllabus+spring+2015+v5

8/18/2019 Syllabus+Spring+2015+v5

1/15

Revised 4/15/2015 page 1

PROPERTY - LAW 170.2

Syllabus Spring 2015

Professor Christopher Schroeder

Reading Assignments: The book for this course is Joseph Singer, et al., Property Law, Rules,

Policies and Practices (6th ed. 2014). Supplementary material will be distributed by being

posted on Sakai. If we do not completely finish an assignment in one class, I will indicate the

portions of material for which you will be responsible during the next class.

Office Hours: I am in room 3185. Office hours are 2:00 – 3:00 pm each class day. You may also

contact me by e mail [email protected].

Class Logistics: I use a system that mixes random calling, taking questions, and engaging in

general discussion. Please come to class having read and thought about the assignment, and

ready to participate. If you are unprepared to participate, send me an email at least one hour in

advance; I will then avoid calling on you that day.

Laptops, tablets and cell phones: There is exactly one legitimate use of laptops in class: note

taking. I realize that many of you rely on this method of note taking, and so laptops are

permitted in class for that sole purpose. This policy is subject to midcourse corrections should

issues related to laptop use arise.

As for tablets and cell phones, there are no legitimate uses of either in class, so please turn

them off for the duration. One exception: tablets with physical keyboards that are substitutingfor laptops are subject to the rules for laptops, above.

The Course Itself: As the casebook says, “[p]roperty rights concern relations among people

regarding control of valued resources.” Singer, xxxi. That definition embraces a lot of territory,

and we will certainly not cover all of it. What we will cover are a number of discrete topics

ranging from property acquisition to disposition, issues that arise during property ownership

when individuals place competing claims on property, and requirements or restrictions that

government places on property interests. We will discuss the some of the central themes of

the course during the first class.

mailto:[email protected]:[email protected]:[email protected]:[email protected]


2/15


3/15





contemporary justifications as well.

4. Discrimination. 40-48; 52-61; 78-82.

Property governed by a variety of types of law: judge-made common law, federal

statutory law, state statutory law, and state and federal constitutional law. The law

governing public accommodations right to exclude vs. citizens’ right to access governed

heavily by statutory law responding to significant claims of discrimination. When

dealing with statutes, it is essential that arguments for one outcome or another be

explicitly grounded in the text of the statute.

Acquiring Rights to Property

5. Acquiring Property from the Sovereign. 83-97.

Johnson v. M’Intosh. Positive law is at the root of all title – the power of the sovereign.

Sometimes reliance/settled expectations become so deeply embedded that revisiting

the justification for an initial property allocation poses inacceptable costs. Still, other

justifications for removing property from the unowned commons to ownership, such as

theories based on improving social welfare, Locke’s labor theory of property, and

theories of property that identify ownership with aspects of the human personality,

remain important because they affect how common law rules of property develop.

“First possession” receives considerable protection in property. Values served by itinclude: clarity; providing security of ownership which facilitates use and investment,

promoting social value; preserving peace. What amounts to “possession,” however, is

context-dependent.

6. Acquiring Property with Labor and Investment. 107-124.

INS v. AP. Respecting property rights (or in the court’s terminology, “quasi-property”

rights) sometimes motivated by perceived need to incentivize the production of

knowledge (in this case, the news). The need for such incentives is an empirical one,

however; in some circumstances non-property incentives can be substantial (e.g., first-

mover advantages; social norms favoring the production of non-privatized property,

e.g., Wikipedia). Incentivizing knowledge production via property rules is in tension

with increasing social welfare by making knowledge widely available and useful. (This is

the central tension for intellectual property rules.) Labor theory of property relevant

here as well; offsetting the idea of “creation” is the idea that all creations build on the

prior efforts of others. Tragedy of the Commons (see separate handout of Takeaways).


4/15





7. Acquiring Property by Possession - (Capture). 130-146.

Pierson v. Post. Popov v. Hayashi; Elliff v. Texon Drilling Co. “First possession” protected

by the rule of capture, but what constitutes possession? All judges in Pierson v. Post

agreed that “first occupancy” prevailed. They disagreed over what acts were sufficient

to constitute first occupancy. Answer again context-dependent. Interests at stake:

incentivize productive activities, including use of resources; clarity and ease of

administration; fairness (uphold settled expectations – consider role of custom here).

And finally: possession is often all that can be proved. Emphasis on Possession

underplays possibilities of equitable sharing; see, e.g., Popov for an example of such

sharing. Rule of Capture developed with respect to wild animals becomes template for

solving other ownership issues, such as oil and gas. (See Elliff ). Clash of two rules with

sharp boundaries can lead to compromise with less clearly defined boundaries. See

Elliff , involving clash of ad coelum rule and rule of capture.

8. Acquiring Property by Possession - (Finders). 146-158; 161-162.

Willcox v. Stroup; Armory v. Delamaire; Charrier v. Bell. The law of finders Interests at

stake: Protect interests of True Owner; When TO not present, protect first possession.

Cases illustrate the concept of relativity of title: Finder can “own” property vis a vis all

in the world except TO. Protecting interest of TO includes crafting rules that facilitate

recovery by TO, e.g., by encouraging finder to disclose the find. Expectations of parties

also relevant – e.g., expectations of private home owner different from expectations ofmall owner.

9. Acquiring Property by Creating Intellectual Property: Trademark and Copyright. 171-

205.

Qualitex v. Jacobson Products. Feist Publications v. Rural Telephone Co. Suntrust Bank

v. Houghton Mifflin Co. Boundaries of intangible property less well defined that

boundaries of real property, accordingly, much of IP involves defining the boundary of

the right. Copyright and Patent also time-limited property rights, which rights in real

property are not (unless time limits provided by agreement.) From utilitarian/social

welfare perspective on property rights, fundamental function of intellectual property

rules is to incentivize costly creativity sufficiently so that society benefits from

innovation (creativity generates positive externalities – without a means to capture

value produced by these external benefits, innovation may be under produced relative

to its social value) while allowing new knowledge to be spread widely once it is

produced so that others can build on that knowledge. Tension exists between these

two objectives in patent and copyright. Trademark does not face this tension.


5/15





Trademark rules grow out of unfair competition and misappropriation; the social

welfare function they serve is to maintain the integrity of markets so that market

transactions are better able to produce exchanges that improve overall social welfare.

In copyright, fair use doctrine is one of features mediating the tension between

providing creativity incentives through ownership while ensuring others can draw on

prior work for new creativity.

10. Patents. 205-215.

Association for Molecular Pathology v. Myriad Genetics. Juicy Whip v. Orange Bang.

Property rights in patents. Locke’s labor theory of property provides further

justification for property in inventions (Patent) (also applicable to copyright). Everyone,

however, creates with the benefit of prior knowledge; in light of this, patent

requirements of non obviousness and novelty place limits on what is patentable, as do

the judicially created categories of “laws of nature, natural phenomena and abstract

ideas,” none of which can be patented. Invention must also have utility to warrant

protection

Conflicts Between Neighbors

11. Adverse Possession. 283-311.

Brown. v. Gobble. Romero v. Garcia. Nome 2000 v. Fagerstrom. With property rightscome property responsibilities, such as taxes, responsibilities imposed by zoning laws

and eliminating certain hazardous conditions on the property. Another responsibility is

to maintain a minimum level of vigilance. Lack of vigilance for an extended period of

time can result in loss of title to property, but taking away title in this way is a drastic

step, so it requires a fairly robust reason – either strong equities in favor of adverse

possessor or strong social welfare considerations. Factors favoring adverse possession

include clearing up uncertain title, cutting off distant claims (both of which improve the

ability to buy/sell land which in turn enhances its productivity), favoring productive land

use over idle land, respecting built-up expectations of the adverse possessor. Some of

the prerequisites of A/P aim at ensuring owner has ample opportunity to learn of the

adverse possession, viz., actual, exclusive, open, notorious, and continuous.

Continuous also helps ensure A/Per has built up expectations. A/P must also be

without the permission of the owner. The state of mind of the A/Per is dispute, but the

most shared American view is that it is irrelevant. “Color of title” claims are distinct

from other A/P claims and arise in situations where a deed or conveyance, although

imperfectly executed, provides evidence of intent of the parties that long and


6/15


7/15





14. Access to Light and Air. 367-388.

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. Prah v. Maretti . Easement by

prescription not recognized in American law. Even though Eden Roc or Prah has in this

sense no recognized right to sunlight, this does not by itself prevent the blocking of

sunlight by Fontainebleau or Maretti from being a substantial interference with use and

enjoyment of property. The two cases illustrate different approaches, one relying

heavily on precedent (the appeal for change should be directed at other arms of

government), and value of having a consistent rule over time, the other emphasizing

changed circumstances and flexibility of the nuisance doctrine. Both fact patterns

involve just two parties, and yet no evidence of bargaining between the parties in either

case. This may illustrate the difficulties of bargaining in cases of bilateral monopoly.

15. Express and Implied Easements. 511-518; 533-544.

Lobato v. Taylor . Whereas nuisance law addresses land use conflicts where there has

been no prior agreement among the parties, easements, covenants and servitudes that

run with the land are consensual means of addressing land use conflicts. As such, giving

effect to the intentions of the parties becomes an important new consideration in the

law in this area. At the same time, agreements between parties that “run with the

land” impose continuing obligations on new parties and can be difficult to change,

raising the problem of “dead hand” control. Doctrines of touch and concern,

reasonableness, rules governing modifications and terminations and restraints onalienation address the tension between parties’ intent to restrict and public policies

favoring productive use of property. The fact there is an express agreement also brings

the Statute of Fraud requirements into play.

There are 4 situations in which easements can be created without a formal writing.

Prescriptive easements (see above) and easements by estoppel treat situations in which

there is some level of wrongful behavior by the servient land owner with the generation

of expectations of continued use – either failing minimal monitoring responsibilities

that permit the (eventual) dominant owner to build up settled expectations or granting

initial permission followed by detrimental reliance by the (eventual) dominant owner

without a warning or intervention by the servient owner.

16. Easements by Implication and Necessity. 544-556.

Granite Properties Limited Partnership v. Manns. Finn v. Williams. The other two

implied easements arise out of situations in which one parcel of land is divided, with

the owner retaining one of the new parcels and transferring the other. These are

easements by implication (or easements by prior use) and easements of necessity. In


8/15


9/15





the value of the development in light of changed circumstances. In the early stages of

development, these mechanisms frequently remain in the control of the developers,

whose interests in making adjustments to maximize value of the development for the

developer may clash with the interests of the early purchasers who bought in

anticipation that community would be developed consistently with their expectations.

When the CCR’s themselves provide the ability of the developer to make amendments

and exceptions to the CCRs, should there be any restrictions on that ability? Appel

reads a requirement of “reasonableness” into the developer’s freedom to make such

changes. The Restatement 3rd of Property permits develop to make “material” changes

only if the declaration of CCRs itself provides notice to purchasers that such types of

changes can be made.

19. Limitations on Covenants. 598-622.

Davidson Bros. v. Katz. Nahrstedt v. Lakeside Village Condominium. O’Buck v.

Cottonwood Village. Neuman v. Grandview at Emerald Hills. Traditional “touch and

concern” requirement limits covenants that “run with the land” to those that impose

restrictions on the use of the servient estate (thereby having a burden that touches the

land) in a way that enhances the value of the dominant estate (thereby having a benefit

that touches the land). The touch and concern requirement has also provided courts

with a mechanism for infusing considerations of public policy/ public interest into the

inquiry. Example: anti-competition covenants can touch and concern land in thetraditional sense (e.g., in the fact pattern presented in Davidson), yet a court hostile to

such covenants may find it does not touch and concern in order to refuse enforcement.

Restatement 3rd’s approach is to eliminate touch and concern requirement and to

permit public interest to play explicit role in evaluating whether covenants run with the

land. Restatement is also more hospitable to CCRs than was traditionally the case,

reflecting modern recognition that common interest communities can helpfully address

community-wide externalities thereby enhancing overall community value.

Restrictions placed in declarations often given greater deference than those contained

in by-laws, which can be changed with lesser level of community involvement.

Validity of changes in by-laws and declarations raise two distinct questions: first, the

“constitutional” documents of the community must authorize the change and second,

the change must satisfy the additional standard (e.g., “reasonable,” “unless

unreasonable,” business judgment rule, with or without a presumption of validity)

imposed, often by statutory law.

Restrictions can implicate activities or values that are constitutionally protect, such as

free speech and freedom of religion. In majority of jurisdictions, CCRs do not directly


10/15





implicate constitutional protections, because they are not state action. The protected

values can and do influence whether the restrictions survives judicial review.

20. Limitations on Covenants-2. 635-658

Northwest Real Estate v. Serio. Woodside Condominium Ass’n v. Jahren. El Di v. Town

of Bethany Beach. Blakeley v. Gorin. Direct restraints on alienation strongly

disfavored by the common law. Absolute restraints are especially vulnerable; less

constraints (such as the time-limited restraint in Serio), usually judgment against a

standard of reasonableness. Reasonableness is a function of context; restraints against

renting condominium units may be justifiable. Condominiums very much products of

statutory law, as well. Woodside Condominium Ass’n upholds restriction on rentals

under then-existing statutory law; Florida legislature reacts by changing the law.

Appeals to courts to provide relief from older covenants illustrate the recurring tension

between permitting grantors, developers, etc. to subject their property to restrictions

that run with the land, versus the difficulties that such “dead hand controls” create for

subsequent generations. Doctrines of changed conditions, which asks whether

covenants no longer provide any substantial benefit to the dominant estate, and

relative hardship, which asks whether the burdens placed on the servient estate are

greater by a significant degree than the benefits to the dominant estate, are stringent

standards to meet. Some states have provided more generous relief-granting

standards by statute (e.g., Massachusetts – see Blakeley .)

Types of Ownership: Estates and Future Interests, Tenancies and Common Ownership

21. Estates. 737-761.

Wood v. Board of County Commissioners of Fremont County . Edwards v. Bradley .

Understanding the contemporary estate system, in which a number of historical

artifacts were not included in our discussion. Disregard the fee tail, the destructibility

of contingent remainders, the Rule in Shelley’s Case and the Doctrine of Worthier T itle.

Tension in the estates and future interest system is between effectuating the intent of

the conveyancer (whether inter vivos or a testator) and concern about the dead hand

of the past controlling present uses/users. The existing estate system provides

considerable flexibility for conveyancer to accomplish her objectives through correct

drafting, but cases often arise in which the meaning of language in the conveyance is

ambiguous. In those instances courts tend toward interpretations that avoid

forfeitures (e.g., Wood ) and interpretations against finding life estates followed by

future interests (because this makes land more alienable), although when a


11/15





construction creating a life estate best fulfills testator intent, those will be found. (e.g.,

Edwards).

22 Waste and Cy Pres. 761-778.

McIntyre v. Scarbrough. Evans v. Abney . Holders of present possessory interest (e.g.,

life estates) and holders of future interests have priorities that can clash. The doctrine

of waste provides some protection to future interest holders in order to prevent the

dissipation of the property. Standard (“utter disregard of rights of future interest

holders”) is not very stringent. Cy Pres doctrine, on the other hand, addresses the

problem of dead hand control, by providing an opportunity to alter the purposes of a

trust to account for the stated purpose becoming impossible or impractical. Party

seeking change must establish that the donor had a general donative intent that was

not limited to the purpose he/she specified. Modern trend is to presume a general

donative intent. Disputes arise over what new purpose is as close as possible to the

original. (Recall that cy pres issues arise in the context of older covenants, too.)

23. Future Interests. 778-793.

Johnson v. Whitten. Numerous Clausus (the number is closed) prevents the creation of

additional estates beyond the ones we have. They provide sufficient flexibility for

conveyancers. Rule Against Perpetuities. See Resources on Sakai for Class 27.

24. Leaseholds and Conflicts About Occupancy. 809-813; 830-847.

Kendall v. Ernest Pestana. Slavin v. Rent Control Board of Brookline. Landlord tenant

law (LLT law) has undergone substantial change in last 50 years. Old conception:

leasehold is just an estate in land, promises between landlord and tenant are

independent (breach by one side does not excuse non-performance on the other. (The

one exception: landlord’s failure to provide possession and quiet enjoyment excused

tenant from rent obligation). Also, no implied obligations – caveat lessee. New

conception: lease is also a contract, and in residential settings more a contract for the

services that constitute providing a residence than a property interest. Also, LLT is also

a mix of common law and statutory law.

Example of reading contract principles into leases: When commercial leases restrict

assignments and subleases to prior consent by landlord, in many jurisdictions contract

principle of good faith and fair dealing requires that landlord say no only on the basis of

reasonable commercial grounds. (Kendall ) This principle sometimes extended to

residential context, too. (But see Slavin, refusing to extend.)


12/15





25. Conflicts about Rent. 847-860.

Sommer v. Kridel . When tenants do not pay the rent, they can either remain on the

premises or they can leave. In the first case, the landlord may wish to regain the

premises. This raises the issue of whether they can evict the tenant by themselves, say

by changing the locks. The traditional rule made this permissible so long as the eviction

was “peaceable,” but in many jurisdictions today even this seen as posing too great a

risk of an altercation between the two, and it makes the landlord the judge of whether

the eviction is justified. Alternative is summary process for eviction. When tenants

vacate and don’t pay, leading issue is whether landlord has duty to mitigate. Old rule:

no, the leasehold is the tenant’s property for the length of the lease. She owes rent

whether or not paying it. More and more states require landlord to mitigate damages.

Can be viewed, again, as an application of contract principles rather than traditional

property principles.

26. Right to Habitable Premises. 860-886.

Minjak v. Randolph. 3000 B.C. v. Bowman Properties. Javins v. First National Realty

Corp. Under traditional property rules, landlord had no obligations to maintain the

premises, and even if landlord had promised to do so, this promise was independent of

tenant’s obligation to pay the rent. So uninhabitable premises did not relieve tenant of

rent obligation. The landlord was obligated to provide possession and quiet enjoyment,

however, so that his/her eviction of tenant did relieve the rent obligation. The doctrineof constructive eviction evolved to address situations in which a landlord’s substantial

interference with a tenant’s quiet enjoyment would relieve the obligation to pay rent.

And a successful claim of partial constructive eviction permitted the tenant to remain in

possession while seeking redress for breach of the landlord’s obligation.

Implied warranty of habitability has provided tenants additional options to challenge

substandard living conditions. Javins is an important case in the transition to a

contract-centered view of leases. In Javins, habitable conditions are measured by the

DC Housing Code, and a similar doctrine exists in many jurisdictions. In residential

leases, this implied warranty cannot be waived.

27. Concurrent Ownership. 661-680.

Olivas v. Olivas. Carr v. Deking. Tenhet v. Boswell . Tenants in common and joint

tenants (we did not discuss tenants in the entirety.) Significant differences between the

two: the right of survivorship, plus the fact that tenants in common can have any kind

of fractional share, whereas joint tenants have equal shares. Common law default rule

finds a tenancy in common created where parties’ intent is not clear, and heirs taking


13/15





by intestate succession take as tenants in common. Major downside to tenancies in

common is that they can lead to highly fractionated shares, which impairs alienability.

Joint tenancies, in contrast, consolidate ownership in the last surviving tenant, which

facilitates alienability.

28. Marital Property. 693-711.

O’Brien v. O’Brien. Historically, marital property was managed by the husband. At

divorce in separate property states, common law title rule simply assigned property to

the person or persons in whom it was titled before the marriage broke up. Community

property states divided marital property (i.e., property acquired during the marriage)

equally. Separate property states have adopted equitable distribution statutes that

seek to divide property by taking a variety of equitable criteria into account, including

each spouse’s contribution to the marriage enterprise, which includes both at home

and at work activities. This reflects view that marriage is an equal partnership, not

dominated by one side or the other. O’Brien raises the question of what constitutes

“marital property” under NY’s equitable distribution statute, holding (uniquely among

the states) that the increased earning power represented by a professional license

constitutes marital property. Preference in dissolution proceedings is to limit on going

financial entanglements to temporary measures (not always possible, especially where

children are involved); this places pressure on property distribution phase to treat each

person equitably.

29. Unmarried Partners, Same-Sex Partners, 712-725.

Watts v. Watts. Cohabitation relationships are also evolving toward a partnership

model. In fact the ALI Principles of Family Law project recommends that established

cohabitation relationships be treated on termination in the same manner as married

relationships for purposes of property distribution. In advance of distribution statutes

that do this, Watts reviews doctrines available to courts to recognize contributions of

the stay at home spouse (doctrines which largely parallel those employed by courts in

separate property states for married couples prior to enactment of equitable

distribution statutes.)

Transferring Ownership Interests

30 The Recording System. 990-1011.

Sabo v. Horvath. Brock v. Yale Mortgage Corp. McCoy v. Love. Ultimate goal of

recording system is to facilitate the productive use of property by giving purchasers


14/15





confidence in the state of title – basically, certainly as to who owns the property. All

recording systems reward the owner who records her title properly. In race

jurisdictions, that person has won the race against all subsequent possible challengers.

In notice and race-notice jurisdictions, proper recordation provides constructive notice

to them. On the other hand, the system also protects the interests of subsequent bona

fide purchasers for value who have satisfied the requirements of the state’s recording

statute. Protecting a BFP for value changes the otherwise operative common law rule

of “first in time, first in right.” Subsequent purchasers can be put on notice of

someone’s prior interest (and thus will not be BFP’s) through actual knowledge of a

prior conveyance, through constructive knowledge of what a standard title search

would reveal, and through inquiry notice which arises when some extrinsic, non-record

fact about the land or the transaction would cause a reasonable person to inquire

further, and that inquiry would reveal a prior conveyance. While the basic recording

system is established by statute, important judge-made doctrines have developed

around it. Besides the definition of bona fide purchaser, the judicial doctrines we have

discussed are: “wild deeds” - recorded documents that the standard title search of the

chain of title would not reveal – do not provide constructive notice and are not

considered properly or duly recorded; the shelter doctrine -- this secures marketable

title for a BFP by allowing a grantee of the BFP who would not otherwise be protected

by the recording statutes to “shelter” under the BFP’s good title.

Many recording statute and related problems can pit two relatively innocent personsagainst one another when the true scoundrel is not before the court. Should the prior

owner prevail or should the bona fide purchaser prevail? The problems of forged deeds

and deeds obtained by fraud illustrate the two choices: forged deeds are typically held

to be void, which means a prior owner is protected and the BFP is not; deeds obtained

by fraud are typically held voidable, which means the reverse.

31. Real Estate Contracting. 907-932.

Burns v. McCormick. Hickey v. Green. The real estate transaction involves a number of

formalities. Compliance with the Statute of Frauds is one of them. Its objectives

include preventing frauds that rely on oral statements; providing evidentiary certainty

compared to oral statements; providing a recordable instrument; ensuring deliberation.

Notwithstanding the importance of these objectives, courts will sometimes enforce oral

promises of convey property based on part performance or estoppel. The situations in

which these doctrines may provide a remedy of a would-be grantee must include a

substantial equitable reason to set aside the requirement of a writing and a good

degree of certainty about the contents of the oral promise. Substantial performance


15/15





alone is typically not sufficient when it can be redressed by money damages rather than

property transfer.

32. Breach of Contract. 932-952.

syllabus+spring+2015+v5

Documents