1. Basic concepts: property refers to the relationship among people with respect to things, not a relationship between a person and a thing

a. Bundle of Rights: common metaphor used to describe set of rights and obligations – right to: possess, repair, destroy, exclude, use, lend, transfer; duty to: use reasonable care, dispose of properly, not to harm

b. Purpose: privacy, common good, encourages productivity, enhances productivity, stability, maintains existing social order, helps allocate scarce resources, promotes individual development

2. Acquisition: First Possessiona. Capture

i. Policy: reward and protect investment of labor, time and money; activities that benefit social wellbeing; promote livelihood that benefits society and instrumental end; promote efficiency; peace and order; fairness; limits of scientific understanding; tortious conduct

1. Consequences: over extraction of resources i.e. extinctionii. Actual possession: requires complete control (common law) – must actually kill

or capture, securing as to render escape impossible, or mortally wound; mere pursuit is not enough.

1. Pierson v. Post: Pierson (hunter) in pursuit of fox does not own the fox if Post comes along and kills the fox

a. Applies because on wild, uninhabited land and ferae naturae (wild animal) is no one’s initial property

b. Policy: majority – certainty, peace and order, avoids disputes/litigation

i. Dissent – instrumental end: more people to hunt foxes, reward investment of labor

2. Popov v. Hayashi: Popov had pre-possessory interest in the ball but was disrupted by illegal activities (mob) and Hayashi secured actual possession

a. Gray’s Rule: a party must retain control of property even after incidental contact with people and things

b. Pre-possessory interest: Significant but incomplete steps to achieve possession because interrupted by unlawful act of others

iii. Constructive possession1. Ratione soli: wild animals on your land belong to you temporarily until

animals leave (Keeble with duck decoy)2. Animus revertendi: original possessor does not lose title to an animal if the

animal leaves the owner’s property but animal has the habit of returning3. Mortally wounding animal - Ghen v. Rich: under custom in whaling

industry, the person who shoots the bomb lance that kills the whale (mortally wounding) is entitled to possession and the finder of whale entitled to a fee

a. Limited to whaling industryb. Relied on custom because generally covered the entire industry in

the area and worked well in practice

c. Policy: reward fruits of labor, social utility: works well in practice; appropriate rewards to whaler and finder, custom promotes instrumental end (whale oil for fuel)

iv. Actionable interference: cannot maliciously interfere with exercise and enjoyment of private franchise

1. Keeble v. Hickeringhill: neighbor discharging guns with the object of frightening away ducks from plaintiff’s duck decoy; court found for Keeble

2. Policy: promote productive use of resources and activities that have economic impact for profit, trade, or use of mankind

v. Natural resources: migratory or fugitive resources1. Oil and gas: can take as much oil under the land as they want, unless it’s

wasted (Eliff v. Texas)a. Ruled by statutory regulationsb. Qualified ownership + rule of capture = minerals belong

exclusively to the one who produces them (LA)c. Correlative rights: absolute ownership + rule of capture =

neighbors each have right to oil and gas if reasonable and legitimate drainage (TX)

2. Policy – punish wasting resources, encourage investment/drilling to provide economic goods

3. Groundwater ownership doctrinesa. Ruled by statutory permits

i. Riparian rights (eastern US): own land bordering water; reasonable use

ii. Prior appropriation (western US): beneficial use; first in time, first in right

b. Creation (ideas and expressions): the right to copyi. Copying is allowed under the common law - creator has property right in item

created but not the idea overall1. Policy - “imitation is the life blood of competition”; want encourage

competition for benefit of consumers: “comparable goods at lower prices”2. Cheney Bros v. Doris Silk: in absence of some recognized right at

common law, or under the statutes, a man’s property is limited to the chattels that embody his invention. Others may imitate these at their pleasure.

ii. Quasi-property: property rights usually wouldn’t apply towards general public but property rights do exist vis-a-vis direct competitors because of investment

1. INS v. AP: no property rights towards public (news usually publici juris), but maintain property rights towards a competing news agency; applies to “hot news”

a. Policy: rewarding the investment of labor, skill, and money; Promoting social utility/business viability in that the reward needs to be high enough to justify investment; copying must not undermine our incentive to gather news; don’t want to destroy

industry by allowing right to copy news; when future of necessary public industry is at stake

i. Dissent: Noblest of human productions like knowledge, truths ascertained, conceptions, and ideas become, after voluntary communication to others, free as the air to common use.

iii. Exception to right to copy: legislatively sanctioned monopolies; fruits of your labor are not always yours alone to exploit

1. Policy: to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (under US Constitution)

2. Property in one’s persona: can’t use “likeness” for alternative commercial purposes (White v. Samsung)

a. Dissent: allows for overprotection (anything that reminds viewer of White); IP rights have consequences (imposed at expense of future creators and public at large, no “fair use” exception/right to parody); moral dimension (right to profit of Vanna over Samsung), contradicts federal law and constitution (copyright act and 1st Amendment)

3. Property in one’s person: patients excised cells are not property, and as such, cannot give rise to conversion cause of action (Moore v. Regents)

a. Rule:i. When the patented cells are different than the excised cells

1. Patents require noveltyii. When no legislation gives patients this property right

iii. When existing legislation has so narrowed a patient’s ability to control what happens to excised cells

iv. When the existing tort causes of action sufficiently balance the interests of patients and the needs of scientific research

1. Protect patients based on disclosures instead of property rights

v. When the scientific research is socially valuable 1. Critical not to chill research

b. Policy: want to balance promotion of scientific research with patient rights

c. Moral dimension: plaintiff entreats us to regard the human vessel as equal with the basest of commercial commodity

d. Dissent: Essential element of property is dominion: rights of use, control and disposition; concern for privacy and dignity; give patient right to consent; legislature can prohibit giving patients financial interest in tissues if it wants

i. Moore had same rights as scientists4. Intellectual property

a. Patents: protects novel inventionsi. No protection until government grants patent

b. Copyright: covers artistic works, expression, aesthetic features

i. Registration not required for ownershipc. Trademark: words, phrases, logos, or other indicators identifying

the source of a particular product or servicei. Use required for protection

d. Trade secrets: information that derives (i) independent economic value from being not generally known, and (ii) is the subject of reasonable efforts to maintain secrecy

3. Subsequent possessiona. Finders (personal property): title of finder is good against all but the true owner or prior

possessorsi. Armory v. Delamirie: chimney sweep found jewel and silversmith’s apprentice

took it from him; Armory had right to jewel as first finderii. Bailment: rightful possession by a person (bailee) who is not the owner of the

goods1. E.g. dry cleaner or valet

iii. Hannah v. Peel: Where brooch lost by true owner, finder has better title than absentee owner of property where brooch found

1. Does location matter:a. Bridges case – no (money in shop)

i. Public nature of the location mattered; invited public into the store

b. South Staffordshire – yes (rings in mud)i. Agents and lessees not in the same position as the owner of

propertyc. Elwes – yes (pre-historic boat embedded in land)

i. Own items attached to or under property belong to the owner of the property

1. Especially in one’s own home2. Want to reward the good actor: honesty in turning over the good to the

authorities to try to find the true owneriv. Difference between mislaid and lost

1. Mislaid is something placed intentionally but then forgottena. E.g. Wallet on restaurant tableb. Usually goes to the owner of the establishment

2. Lost is unintentional placement and forgottena. E.g. wallet falls out of your pocket on the streetb. Usually goes to the finder

b. Adverse possession (land): legally taking someone else’s propertyi. Elements of adverse possession: CHANE

1. Continuous and uninterrupted for statutory mandated length of timea. Standard based on what is reasonably expected for the type of

property disputedi. E.g. property used as summer home by adverse possessor is

considered continuous even though only for a short period of time throughout the year (Howard v. Kunto)

2. Hostile/adverse; claim of right

a. Title owner can not have given consent to useb. 3 mindsets depending on jurisdiction:

i. Objective (doesn’t matter): most jurisdictionsii. Good faith (mistake of ownership)

1. Colorado changed their rule to require good faithiii. Bad faith (know someone else is the owner): Maine Rule

3. Actuala. Treat property as if actually owned itb. Ordinary use of the property

4. Notorious and opena. Visible acts sufficient to put an owner on actual or constructive

notice that someone is on the landb. Actual vs. constructive (Mannillo v. Gorski)

i. Generally require constructive knowledge “should have” known, but not presumed to know

ii. Knowledge arising from minor encroachment along a common boundary requires actual knowledge and does not satisfy open and notorious

1. When not evident to naked eye but requires an on-site survey, then places undue burden on true landowner; not typical to do surveys in suburban or urban area

2. Innocent party who builds on other property, owner may be forced to convey land in exchange for payment

5. Exclusivea. Title owner and adverse possessor cannot both use propertyb. Cannot share property use with outside parties

i. Husband and wife are ok to share6. McLean & Stevens v. DK Trust & Don Kirlin: laid out the elements of

adverse possessiona. Used the property for at least 21 years virtually everyday (as the

owner would)b. Kirlins did not not give McLean/Stevens permission to use the land

i. Did not have to prove state of mind (maybe bad faith)c. Treated the property as if they owned it – ordinary used. Walking paths were visible, planted non-native vegetation, wood

pile obviouse. Used property as if owners and Kirlins did not

ii. Tacking: practice of combining time periods over which property was possessed by different persons to determine if the statute of limitations for adverse possession has lapsed

1. Howard v. Kunto: tacking allowed even though deeded land did not include any of the occupied land but was land directly adjacent to deeded land (mistake – good faith)

a. Privity of property conveyed between prior owner and successive possessor because of clear connection between seller and buyer

i. Trespassers without privity cannot tackiii. Amount of property given depends on actual use unless there are fences then get

everything fencediv. Policy – provides certainty (quiet title), encourages social utility (put land to most

productive use – you snooze, you loose), encourages neighborliness because permission negates adverse claim

1. Earning theory vs. sleeping theoryv. Disabilities: where the true owner is either a minor, mentally incompetent,

imprisoned, or in military or war when the adverse possessor first entered the property, the SOL is tolled (stopped) for the duration of the disability

1. True owner can maintain cause for action for the regular statutory period or tens years (or other specified time) after the disability ends, whichever is longer

a. Disability must be at the time the adverse possession started, can’t toll in the middle of adverse possession

b. Policy - balance between true owner having meaningful opportunity to protect rights and allowing adverse possessor’s claim to run

2. Government suffers from ultimate disability – adverse possession is not possible against government owned lands

a. Policy - can’t take lands from the people; unreasonable to expect people to patrol lands

4. Discovery/Conquesta. Right of discovery: ultimate dominion, a power to grant the soil, is claimed by the

discoverersi. Title goes to European governments by whose authority discovered land against

all other European governments (Johnson v. M’Intosh)1. Key to exclude other Europeans2. Title consummated by possession

ii. Original inhabitants “rightful occupants” with right to possess and use but complete sovereignty diminished

iii. Rationale: bringing civilization and Christianity is “ample compensation”iv. US adopts the right of discovery rationale:

1. Whole country granted by UK crown while Indians occupied the land2. State statutes affirmed the exclusive right of US government to purchase

from Indians3. “Discovery gave an exclusive right to extinguish the Indian title of

occupancy, either by purchase or by conquest; and also gave a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.”

v. Land grant policies: mostly inconsistent1. Homesteads, colleges, state government, railroad, squatters

b. Conquest: taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror

i. May connect to first in time, first in right1. Right to exclude other European neighbors

ii. Possession = ownership (adverse?)iii. Labor theory: productive use of land

1. Similar to rule of capture and finders5. Limits on Acquisition: Exclusion & Trespass

a. Private landowner’s right to exclude others from his or her land is one of the most essential sticks in the bundle of rights that are commonly characterized as property

i. Jacque v. Steenburg: didn’t allow mobile home delivery to go across their property; delivery happened anyway and Jacque sued for damages; court awarded $100,000 against delivery company as a way to protect right to exclude and deter others from thinking its easy to do so

1. Policy – society’s interest in deterring trespass; preventing “self-help” (shooting people to keep them off property); punishment to maintain the integrity of legal system

2. Right to exclude is a powerful right of property ownershipa. “Most essential stick in the bundle of rights…”

ii. Right to exclude is not absolute: no right to bar access to governmental services available to migrant workers

1. State v. Shack: landowner tried to keep government workers who were seeking to aid live-on migrant workers off his property

2. Policy a. Moral: prevent “dominion over the destiny” of “highly

disadvantaged” persons that owner permitted to come on premises; b. Statutory: goal to help workers laid out in statute (Title III-B)

iii. Other limits to exclusion: discrimination, access to private beaches, landlord evicting, adverse possession

6. System of Estates:a. Possessory

i. Freehold estates:1. Fee simple (absolute): champion of all estates; estate can last forever

a. Created by “To A” or “To A and his heirs”i. Common law words of inheritance no longer needed in

most jurisdictionsb. Devisable (transferred by will): yesc. Descendible (pass by inheritance): yesd. Alienable (transfer inter vivos): yese. Future interest: no

2. Fee tail (aka fee simple conditional): keep the land in the familya. Created by “To A and heirs of his body”b. Devisable (transferred by will): noc. Descendible (pass by inheritance): yes, only for A’s life then to

heirsd. Alienable (transfer inter vivos): yese. Future interest: reversion (in transferor) OR remainder (in

transferee)

3. Life estate: lasts as long as lifea. Created by “To A for life”b. Devisable (transferred by will): noc. Descendible (pass by inheritance): nod. Alienable (transfer inter vivos): yes, only for A’s life (pur autre

vie)e. Future interest: reversion (in transferor) OR remainder (in

transferee)4. Defeasible estates: term “cut short” and estate ends; primary purpose is

control of land use and control of conduct via landa. Fee simple determinable:

i. Created by durational language1. So long as, while used for, during…

ii. Ends automatically when conditional event happensiii. Future interest = possibility of reverter

b. Fee simple subject to condition subsequent: i. Created by conditional language

1. But if; provided, however, that; on the condition that if

ii. Ends if conditional event happens and exercise right of entry

iii. Future interest = right of entry/power of terminationc. Fee simple subject to executory limitation

i. Created by either FSD or FSSCS language but if condition happens, then automatically goes to third party

ii. Future interest = executory interest in third partyii. Heirs: a living person has no heirs (bald man rule of property); real property

descends to heirs generally in this order:1. Issue (descendants): children, grandchildren, etc.

a. Per stirpes: surviving children get equal of parent’s share if die2. Ancestors: parents3. Collaterals: other blood relatives (siblings, cousins, etc.)4. Escheat: no heirs then goes to state

iii. Non-freehold estates:1. Term of years (land lord)

a. Created by “To A for [length of time]”2. Periodic tenancy3. Tenancy at will

b. Future interestsi. Reversion – created in grantor

1. Possession automatically occurs after a life estate2. Transferable during life and death

ii. Possibility of reverter: created in grantor after fee simple determinable1. Possession happens automatically upon occurrence of stated event2. Transferable during life and death

a. Mahrenholz: Illinois did not allow

iii. Right of entry: created in grantor after fee simple subject to condition subsequent1. Possession does not happen automatically; grantor must exercise his right

to entry (aka power to terminate)2. Transferable during death, but some courts will hold that it is not

transferable during lifea. Mahrenholz: Illinois did not allow

iv. Vested remainders: wait patiently for previous estate to terminate1. Indefeasibly vested remainder: holy grail of remainders

a. “To A for life, then to B.”2. Vested remainder subject to open/partial divestment: giving to a class of

peoplea. “To A for life, then to A’s children.” A has a child; B. B has a

vested remainder subject to open/partial divestment.b. The “vest” stays on earth – transferable during life and at death

3. Vested remainder subject to complete divestment: take away the remainder

a. “To A for life, then to B, but if B dies before A, to C.” B has a vested remainder subject to divestment by C.

4. No reversion in the grantor if there is a vested remainderv. Contingent remainders:

1. Given to unascertained person ORa. Unborn child, heir

2. Contingent on some event occurring – subject to condition precedent3. Grantor always retains a reversion4. Contingent usually follows a contingent5. Examples:

a. To A for life, then to A’s children. A has no children.b. To A for life, then to A’s children who survive A. A has a child, B.c. To A for life, then to B if B reaches 21. B is 17.d. To A for life, then to B’s heirs. B is alive.e. To A for life, then to B if B survives A, and if B does not survive

A, to C.i. Example of alternative contingent remainder.

vi. Executory Interest: contingent1. Subject to a condition precedent and does not vest until they become

possessory2. Created only in transferee3. Must divest or “cut short” some interest in another transferee = shifting4. Divests the transferor in the future = springing5. Examples

a. To A, but if B returns from Canada, to B.b. To A for life, then to B, but if B does not survive A, to C.c. To A upon her marriage.

vii. The trust: maximize flexibility in management & transfer of wealth to future generations

1. Trustee holds legal title: manages to benefit of beneficiaries who hold equitable title

a. Trustee = fiduciary – duty of loyalty2. Net income paid to beneficiaries3. Trust can be protected from alienability and creditors

c. Rule Against Perpetuitiesi. Policy: avoid “dead hand” control from the grave

ii. No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

1. Rule requires vesting within certain time2. Rule will void or invalidate contingent future interests that vest “too

remotely”3. Subject to RAP:

a. Contingent remainderb. Vested remainder subject to open (class gifts)c. Executory interests

4. Not subject to RAP:a. Vested remainderb. Vested remainder subject to divestmentc. Reversiond. Possibility of reverter or right of entry

iii. Validating life: person alive at the creation of the interest who either controls the reason the vesting event occurs or fails OR at whose death (or 21 years after death) the contingent must vest

1. May often be someone named in the grant2. May be person owning contingent interest themselves

iv. “I’m having a horribly vexing experience.”1. Identify: are any of the interests subject to RAP?2. Happen: what has to happen for suspect interest to vest?3. Alive: who is alive?4. Horrible: can you imagine a parade of horribles that could make the

suspect future interest vest late? Is there a maybe?5. Vest: know with 100% certainty whether interest will vest or not vest

within 21 years after death of validating life?6. Eliminate: if interest void, strike it out and re-write & re-assess

conveyancev. Symphony Space v. Pergola Properties: option to purchase vested 24 years after

conveyance therefore void under RAP and plaintiff kept property1. Court used strict interpretation of common law RAP2. Rejects defendant’s 3 arguments:

a. Applicability of RAP to commercial optionsi. Forced sale vs. option to purchase when sale happens

b. Duration of option agreement – only closing at 24 yearsi. Goes against plain language that option period could be 24

yearsii. Only allowed 21 year period

c. Wait-and-see approach – exercising option well within 21 yearsi. Strictly construes statute

ii. Contrasts with other explicit statutory provisions but none exist for options

d. Some casesi. Life estates and the doctrine of waste

1. Waste: reconciling conflict between present possessory estate (life tenant) and future interest holders (usually holders of remainders)

a. In general: life tenant should no be able to use property in a manner that unreasonably interferes with expectations of remaindermen

b. Sometimes can’t bring waste issue unless holding a vested remainder

c. Fact specific inquiry – consider options for the benefit of all parties2. Must look to the best interest of all parties when there is a life estate and

holders of future interestsa. Baker v. Weedon: wife had life estate of farm but unable to

maintain herself, wanted to sell to prevent economic waste but remainder-men not adequately taken care of by forced sale

i. Argues economic waste: failure to maximize property value over time; land unproductive due to changing conditions

ii. Courts used broader rule to look at the interests of all the parties

iii. Fertile octogenarian rule: common law presumed that it is theoretically possible to have children at any age

3. 4 types of wastea. Permissive: failure to take reasonable care; negligenceb. Affirmative: voluntary and injuriousc. Ameliorative: voluntary actions that increase property value that

under common law were still considered waste (generally not followed in US)

i. Woodrick v. Wood: holder of life estate wanted to remove dilapidated barn on property, holder of future interest claimed waste; court allowed calling ameliorative waste not actually waste

1. Remainderman compensated for value of barn but life tenant still allowed to tear down barn

d. Economic: property unproductive due to changing economic conditions (Baker v. Weedon)

ii. Defeasible fees1. Mahrenholz v. County Board of School Trustees: conveyed part of

property to school “to be used for school purposes only; otherwise to revert to grantors”; only = so long as = FSD w/ POR

a. Neither POR nor ROE are transferable in Illinois unlike rest of USb. Generally, FSSCS are preferred over FSD

e. Concurrent Estatesi. Tenancy in common

1. Undivided interestsa. Right to possess entire areab. Can be unequal shares

2. Interest of each is descendible and may be conveyed by deed or willa. No survivorship rights in other tenant: if the owner dies, ownership

is transferred to the person(s) named in their will or if intestate, to heirs

3. Can ask the court to partition if cannot agreeii. Joint tenancy

1. Right of survivorship in other tenanta. Not descendible nor devisableb. In many states, need to expressly state “joint tenancy with right of

survivorship”c. Joint tenant can convey interest inter-vivos to a 3rd party to create

tenancy in common2. Four unities required to create joint tenancy (T-TIP)

a. Time: interest must be acquired or vest at the same timeb. Title: must acquire title by the same instrument or joint adverse

possession; a joint tenancy can never arise by intestate succession or other act of law

c. Identical interest: must have equal undivided shares, also measured by duration

d. Possession: must have right to possession of the whole; one tenant can voluntarily give exclusive possession to the other joint tenant

3. Any one joint tenant can convert a JT into a TIC by unilaterally conveying interest to 3rd party

a. Don’t have to tell other tenantsb. Only breaks bond between conveyor and other tenants

4. Can ask the court to partition if cannot agreeiii. Tenancy by the entirety (aka joint tenancy + marriage)

1. Created by 5 unities (same as T-TIP + marriage)a. Time, Title, Identical interest, possession, marriage

2. Right of survivorship3. Limits on tenancy by the entirety:

a. Spouse cannot defeat right of survivorship of the other unilaterallyb. Spouse does not have the right to judicial partitionc. Creditors of one spouse cannot reach property (in many states, but

different interpretation of Married Women’s Property Act)i. Sawada v. Endo: husband in car accident and owes

judgment; only property is their house owned by tenancy by the entirety and conveyed to their sons before judgment entered against Endos

1. “An estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses”

2. Dissent: what does equality really mean? Should subject wives to same treatment has husbands

ii. Policy: 1. Family solidarity – family home most important

asset, prevents family from using home as security for future loans

2. Creditors don’t need special protection because they are already on notice

a. Different between tort creditors and judgment creditors

iii. In Massachusetts, protection of property held has tenancy by the entirety is limited to only the primary residence

iv. IRS can reach the debtor spoused. Divorce terminates tenancy by entirety

iv. Severance of Joint Tenancies1. Co-tenant can unilaterally sever a joint tenancy

a. Riddle v. Harmon: wife deeded interest to herself attempting to break the joint tenancy into tenancy by the entirety

i. “Straw man” needed under the common law to convey title to someone else then back to original holder to break JT into TIC

ii. CA got rid of need for straw man because lawyers already had work around, revolting to have a blind imitation of the past when grounds have vanished, does not create new powers in joint tenants

2. In lien theory states, a mortgage by one of the tenants does not sever the joint tenancy

a. Harms v. Sprague: brothers owned property and one used his interest in property to secure a mortgage; joint tenancy of property not severed by mortgage

i. Lien on property is extinguished once the joint tenant dies because his interest goes to the surviving tenant

v. Relations among Concurrent Owners1. Partition by sale vs. partition in kind

a. Delfino v. Vealencis: tenants in common own large tract, ∆ runs garbage business, π wanted to subdivide and develop; Connecticut court prefers partition in kind because selling one’s property without consent is an extreme exercise of power

i. Partition by sale allowed when physical attributes of land are such that partition in kind is impracticable or inequitable AND interests of owners better promoted by a partition by sale

2. Sharing the benefits and burdens of Co-ownership

a. In absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property

b. Spiller v. Mackereth: owned building as TIC, one tenant π moved in and the other ∆ wants rent from him; ∆ did not establish ouster therefore no rent is owed

i. Majority rule: to establish ouster, and thus liability for rent, co-tenant must deny other co-tenant the right to enter

1. Refusal of a demand to vacate or pay rent does not constitute ouster

2. Pro: may make more sense in many situations such as where children inherit house and once child lives in house after caring for elderly parent

ii. Minority rule: cotenant in exclusive possession must pay rent to cotenants out of possession even in the absence of ouster

1. Pro: avoids litigation over ouster, puts burden of reaching an agreement not to pay rent on co-tenant going into possession

c. Cotenant who collects from third parties rents and other payments arising from the co-owned land must account to cotenants for the amounts received, net expenses

d. Cotenant who pays more than his share of taxes, mortgage payments, etc. generally has a right to contribution

e. Necessary repairs:i. In absence of agreement, most courts don’t require

contribution from cotenantsii. Some court allow if provide notice to cotenants

f. Improvements:i. No right of contribution from cotenants

vi. Martial Property1. During marriage: fiction that husband and wife are one

a. Sawada v. Endo (protect other spouse’s interest)2. Termination by Divorce

a. Is a degree marital property? In re Marriage of Graham: husband pursued MBA, wife worked; no other marital property, wife does not seek alimony

i. Education itself not “property” subject to division but could be a factor for either alimony or equitable division of property

1. Degree has no “exchange value” on open market; personal to owner and not inheritable; can’t just spend money to acquire but requires hard work; not divisible

ii. Dissent: wife sacrificed for husband’s education; extraordinary case because couple accumulated no marital

property; wife could not seek alimony; wife’s contributions considered for alimony and marital property should be extended to degrees under these unusual circumstances; in torts, future earning capacity is an asset

iii. Mahoney case from NJ: declined to recognize professional degree as marital property BUT ordered that the working spouse be given “reimbursement alimony” (pay it all back)

iv. O’Brien v. O’Brien (NY): statute mans what it says – an interest in a profession or professional career potential is marital property; legislature decided that these represent investments in economic partnership or marriage; rejects reimbursement alimony approach

v. Community property fundamental idea: earnings of each spouse during marriage should be owned equally in undivided shares by both spouses

7. Leaseholds: the law of landlord and tenanta. Leasehold estates:

i. Term of Years: fixed periodii. Periodic tenancy: e.g. month to month

1. Under common law, if year-to-year need 6 months notice; if less time, then notice is equal to length of period

iii. Tenancy at will: no fixed period; now can be terminated by either party; modern statutes require 30 days notice

1. Garner v. Gerrish: used lease form but issue is whether unclear language deeded a life estate or a tenancy at will

a. Traditionally, only life tenant had the right to unilateral termination BUT New York court ruled both parties do not have power to terminate – look to contract principles

b. Rationale for old rule: livery of seisin required for life estates, but not leases; involved physical transfer of a clod of dirt on the premises in the presence of witnesses, to effect conveyance of a fee interest

c. Rationale for new rule: can create any fee interest without livery of seisin; can create a life estate determinable without livery of seisin, then should be able to create an at-will lease with one-party termination; otherwise, would violate terms of agreement and express intent of the contracting parties

iv. Tenancy at sufferance: holdoversb. The lease

i. Is the arrangement in question a lease? If not obvious, courts may look to:1. Intention of the parties; number of restrictions on use; exclusivity or

possession; degree of control retained by the granting party; presence or absence of incidental services

2. Matters because land-lord tenant relationship imposes obligationsii. Lease is both a conveyance and a contract

1. Conveyance creates property rights

2. Contract creates rights through promises3. Historically, courts stressed lease-as-conveyance4. Modern rule, courts look more to contract law, but not completely5. Statute of Frauds: leases over 1 year must be in writing in most

jurisdictionsc. Selection of Tenants/Unlawful discrimination

i. United States Constitution1. Sets the boundaries of federal law

a. Acts of congress (e.g. Fair Housing Act)b. Regulations set by Executive Branch Agencies

i. HUD is an executive branch agency, issues rules and regulations

2. Preempts conflicting state laws3. State laws can give broader rights

ii. Fair housing laws broad term includes:1. Laws enacted by Congress (FHA); regulations promulgated by HUD to

achieve the goals of the laws passed by Congress; policy memoranda issued by HUD to address specific matters; HUD notices provide guidance; state laws; local laws

2. Started with 1899 Civil Rights Act: “All citizens of the US shall have the same right, in every state and territory, as is enjoyed by white citizens thereof: to inherit, purchase, lease, sell, hold and convey real and personal property.”

3. Jones v. Mayer (1968): “When racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

4. What do the laws tell us?a. Who is protected; what is illegal who has to follow fair housing

laws; type of housing covered; exemptions5. What is a protected class?

a. Characteristic of a person that cannot be targeted for discrimination

6. Prohibited conduct: to make, print, or publish any notice, statement, or advertisement that indicates a preference or limitation based on a protected class

d. Tenant who Defaultsi. Tenant in possession: no self-help by landlord

1. Berg v. Wiley: 5 year commercial lease for restaurant, tenant not keeping property up to code and remodeled w/o permission; landlord changed locks and re-lets premises; trial court finds eviction wrongful as a matter of law

a. Common law rule in Minnesota: landlord may rightfully use self-help to retake premises if (1) landlord legally entitled to possession (such as from breach) and (2) landlord’s means of re-entry are peaceable (must go to court as only way of being peaceable)

i. Modern rule: landlord must always resort to the judicial process to enforce statutory remedy

ii. Policy: self-help could promote violenceii. Tenant who has abandoned possession: duty to mitigate damages

1. Sommer v. Kridel: π enters into lease but never occupies apartment, landlord does not rent to another tenant who wanted to rent the apartment and sues tenant for unpaid rent; court finds landlord should have mitigated damages because of “justice and fair dealing”

a. Residential lease like an ordinary contract; implied duties previously recognized; old rule based on antiquated real property concepts; fairness and equity requires applying contract rule

b. Landlord carries the burden to prove used reasonable diligence to mitigate damages by re-letting apartment because landlord in better position to prove (usually breaching party bears burden in contract action)

2. Rationale for no duty to mitigate (old rule): landlord may lose opportunity to rent another empty apt; tenant cannot impose duty on landlord; tenant “purchased” interest in real estate; landlord should not be forced into a personal relationship with new tenant he doesn’t accept; landlord should not have to seek out new tenants continually; abandonment is an invitation to vandalism; may not apply to commercial lease

3. Rationale for duty to mitigate (new rule): nothings of fairness and equity; productivity of land – encourage economic and physical waste, landlord encourage to let property remain unoccupied may cause damage through accident or vandalism

iii. Landlord’s remedies and security devices1. If tenant fails to pay rent or breaches lease: landlord can sue for back rent

and damages; if tenant in possession, landlord can terminate and file action to recover possession

2. Surrender: tenant voluntarily gives up the property and landlord accepts = no liability for future rent, but tenant still liable for past breaches or accrued rent

3. Security deposits usually governed by statute (very specific requirements)e. Duties, rights, and remedies (especially regarding the condition of the leased premises)

i. Landlord’s duties; tenant’s rights and remedies1. Quiet enjoyment and constructive eviction

a. Reste Realty Corp. v. Cooper: basement floods office periodically; manager promises to repair but repairs done poorly and never alleviate the problem; condition must interfere with use in a “permanent sense”

i. Condition intolerable and so substantially deprived the lessee of the use of the premises as to constitute a constructive eviction, so justification for vacating

ii. Old rule imposed harsh burden on tenants: applied principle of caveat emptor (buyer beware); rejected an implied

warranty of habitability; treated undertaking of the landlord and tenant in a lease as independent covenants

iii. Tenant can lose the right to claim constructive eviction as a defense if (1) tenant does not vacate within a “reasonable time” or (2) signed new lease knowing the problems and not promised cure

2. Implied warranty of habitability: the landlord will deliver over and maintain premises that are safe, clean, and fit for human habitation.

a. Hilder v. St. Peter: π occupied an apt in awful conditions with her 3 children and new-born grandson

i. Old rule: tenant took possession of premises irrespective of disrepair because land, not dwelling, was essence of conveyance

ii. Modern rule: tenant usually a city dweller without knowledge of repairs with inferior bargaining position; landlord in better position to make repairs knowledge wise and financially

3. What can tenant do if landlord breaches implied warranty of habitability?a. Standard contract remedies: rescission, reformation, and damagesb. Damages for discomfort and annoyancec. Punitive damage possibled. Without the payment of future rent

i. Shift burden of bringing suit on landlordii. Tenant must show (1) landlord had noticed defect and

failed, within a reasonable time to repair and (2) defect existed during time rent withheld

e. Repair if landlord fails to do so within reasonable amount of time, and then deduct from rent

ii. Tenant’s duties: landlord’s rights and remedies1. Law of waste: tenant cannot reduce the value of the property2. Law of fixtures: tenant should remove moveable items that are regarded as

fixed in apartment, such as overhead lights, carpet, etc.8. Transfers of Land

a. Overview of the real estate process: i. Real estate contracts usually executory – title is not transferred immediately upon

signing the agreement, because both buyers and seller must do certain things during the time between the contract and closing

ii. Process: prequalify for mortgage (decide how much to spend/can afford), find a home through MLS via broker, purchase and sale agreement, contingencies, closing and title transfer, deed/promissory note (IOU)/security interest or mortgage

b. Statute of Fraudsi. Largely judge-made in US, with inconsistent decisions

1. Some apply SOF strictly2. Others give effect to oral agreements when fraud seems unlikely or

unfairness results

ii. Memo of land sale must at least be signed by the party to be bound; describe the real estate; state the price (but could imply price)

1. Exceptions: part performance and estoppeliii. Hickey v. Green: Hickey’s wanted to buy Green’s house and made a down

payment via check that would likely not satisfy SOF; Green didn’t cash check but Hickey’s sold their home and deposited check which would satisfy SOF; may enforce contract even if doesn’t satisfy SOF if it is established that the party seeking enforcement in reasonable reliance on the contract has so changed his position that injustice can be avoided only by specific performance

1. Repudiation after “part performance” amounts to virtual fraud2. Must have unequivocal oral agreement

c. Marketable title: want to remove cloud on the title because don’t want title in doubt and to avoid litigation

i. Good merchantable title shows title free and clear of all encumbrances except special taxes subject to restrictions and easements of record

ii. Lohmeyer v. Bower: π buying ∆’s house issue with house not meetings restrictive covenant and zoning ordinance requirements; title unmarketable

1. Issue is violations of the restrictionsa. Mere existence of a zoning restriction does not constitute an

encumbrance (title marketable)b. Mere existence of a restrictive covenant is an encumbrance (title

unmarketable) – but waived in this case2. Title unmarketable when: reasonable doubt exists; exposes party holding

title to hazard of litigation; defect is substantial (cannot be immaterial and must diminish the quantity, quality, or value of the property as contracted); purchaser would suffer injury

3. Even if sellers could remedy, would compel the purchaser to take something that he did not contract to buy

d. Duty to disclose defects vs. caveat emptori. Stambovsky v. Ackley: seller had duty to disclose haunted condition when created

by seller and buyer had no reason to know of haunting which reduced the value of the home

1. Where fairness and common sense dictate that an exception should be created, the evolution of the law should not be stifled by rigid application of a legal maxim like caveat emptor

2. Dissent: can’t discard doctrine of caveat emptor; poltergeist not sufficient reason

ii. Seller has duty to disclose known latent material defects that are not readily observable

1. Johnson v. Davis: π entered into contract to buy ∆’s home, ∆’s represented that roof was fine but they knew that it leaked

2. Apply 1 of 2 tests to determine if defect is material:a. Objective test of whether a reasonable person would attach

importance to it in deciding to buy ORb. Subjective test of whether the defect affects the value or

desirability of the property to the buyer

e. Deed, Warranties of Titlei. General warranty deed: warrants against all defects in title

ii. Special warranty deed: warrant only against grantor’s actsiii. Quitclaim deed: no warranties of any kindiv. Deed must contain some consideration, description of tract, seal (old rule)

f. Intro to mortgages and the mortgage marketi. Title theory vs. lien theory

1. Title theory: borrower has equitable title and creditor has legal titlea. Mortgage also has promissory note (IOU) – two separate

documents2. Lien theory: no divide of title; mortgage follows the promissory note3. Originator provided the money to the borrower4. Servicer collects the monthly mortgage payments – manages mortgage5. Only bank with legal title (title theory) can foreclose and title must be

assigned before foreclosure (recording not required but better practice)a. US v. Ibanez: action to quiet title or remove cloud from title

created by foreclosure on property; assignments of the mortgages to π was neither executed nor recorded until after the foreclosure sales

i. Blank assignment of mortgage not enoughii. PPM was about a future assignment in Ibanez

iii. PSA not specific enough for LaRace mortgageiv. No assignment to US Bank/Well Fargo (who foreclosed)

ii. Foreclosure1. Mass is non-judicial foreclosure

a. Restricts foreclosures against active duty members of uniformed services

b. Must follow strictly statutory terms2. Mortgagee executing a power of sale is bound both by (1) statutory

procedural requirements and (2) duty to protect the interests of the mortgagor through: good faith and use due (responsibility more exacting where the mortgage holder becomes the buyer at the foreclosure sale)

a. Murphy v. Fin. Dev. Corp: foreclosure sale takes place at house and only homeowners, lenders, and attorney conducting sale present; lenders bid price to cover mortgage and fees $27,000 – later that day another party offers to buy and settles at $38,000; mortgagee did not act with due diligence

i. Must make every reasonable effort to obtain a fair and reasonable price under the circumstances

1. May require adjourning the sale or establishing a minimum bid

ii. Determine fair and reasonable price by looking at full circumstances

1. Unless so low as to shock the judicial conscienceiii. Consider bad faith and due diligence separately

iii. Subprime mortgages

1. Borrowers usually low-income with poor credit; high interest rates; adjustable rate mortgages (ARM) or option ARM – teaser rate and Libor plus 5-6 points; prepayment penalty

a. Alt-A: just below primeb. Subprime: well below primec. Debt-to-income ratio only considered the intro rated. Loan-to-value ratio of near 100% (should be closer to 80%)

2. Commonwealth v. Fremont: ∆ lending to borrowers who were under qualified; π wanted an injunction to provide some additional hoops for the lender to go through before foreclosure

a. Loans contain a combo of four characteristics that could be qualified as unfair under Mass G.L.c. 93A (Consumer Protection Act) aka “risk layering”

i. ARM loans w/ intro rate for 3 years or lessii. Intro rate was 3% below fully indexed rate

iii. Make to borrowers w/ greater than 50% debt-to-income ratio at fully extended rate (determined by judge)

iv. Loan-to-value ratio was 100% (meaning zero cushion for refinancing) or the loan featured a substantial prepayment penalty or a prepayment penalty beyond intro period

1. Piggyback loans instead of a down paymentb. Characteristics 1-3 meant loans were doomed to foreclose unless

could refinancec. Characteristic 4 amounted to hoping income would increase

because needed property value to increase (unsupportable optimism)

g. Recording Systemi. Chain of title: recorded sequence of transactions by which title has passed from a

sovereign to the present claimant OR (technical) period of time for which records must be searched

ii. Recording generally does not affect a land instrument’s (e.g. deed, mortgage, assignment) validity

1. Provides other functionsa. Public recordb. Preserves a secure place to store important documents (deed,

mortgage, lease, option, lis pendis)c. Protect purchasers for value and lien creditors

iii. Recording act protects subsequent bona fide purchasers from prior unrecorded interests

1. Bona fide purchaser is someone who purchases innocent of any fact which would cast doubt on the right of the seller to have sold it in good faith

2. Types of Recording actsa. Race statute: whoever records first “wins”, regardless of actual

knowledgeb. Notice statute: subsequent purchaser had notice of prior

unrecorded instrument = no – go; would be fraud on prior grantee

i. Negatives: less efficient and hard to proveii. Protects subsequent purchasers without knowledge/notice –

even if subsequent purchaser does not recordc. Race-notice statute: if subsequent purchaser is without notice,

could “win” if files before prior purchaser doesi. Provides motivation to record, decide which deed is

delivered firstiv. Registered land – judge rules no cloud on title vs. recorded land – put notice out

to publicv. Title insurance: guarantees that insurance company has searched the public

records and insures against defect in public records unless specific defects excepted from coverage

1. Paid once and insured while policy holder maintains interest in property2. Owner’s and mortgagor’s title insurance: required in secondary mortgage

market9. Servitudes

a. Easement: right to use someone else’s land in a specific way (e.g. right-of-way for driveway, power lines, sewer pipes); non-possessory right to use land

i. Easement can be appurtenant or in gross1. Appurtenant: benefits owner of a parcel of land (e.g. cutting across your

neighbor’s yard to get to your house)a. Two parcels of land: dominant tenement and servient tenement

2. In gross: gives benefit without regard to land ownership (e.g. billboard)a. No dominant tenement but still a servient tenement

ii. Easement can be affirmative or negative on a parcel called the burdened or servient estate

1. Affirmative: gives someone right to enter or perform an act on servient land (most easements are affirmative)

2. Negative: forbid landowner from doing something on his land that might harm a neighbor (VERY narrowly construed)

a. Types CLASS(S)i. Conservation (by statute)

1. Façade preservation easement: prevents façade of a house registered on the national register of historic places from being altered

2. Primary residence easement: no “drive-by-neighbors”

ii. Light – common lawiii. Air – common lawiv. Structural support for building – common lawv. Stream water from artificial source – common law

vi. Scenic view (in California)b. English courts were reluctant to expand negative easements

i. No system of land recordsii. Negative easements could arise by prescription

iii. Conceptually difficult

c. English system came to the US even though the US has a recording system, the US rejected the idea of negative easements by prescription

iii. Reservation allows a grantor’s whole interest in the property to pass to the grantee, but re-vests a newly created interest in the grantor (rejects old common law rule dealing with easements for strangers to the title)

1. Willard v. First Church of Christ, Scientist: original grantor reserved easement for Church who was a stranger to title between grantor and grantee; grantee had notice from prior recorded deed, actually being used for church parking, and told by seller

a. At common law: cannot reserve a interest in third party (stranger to title)

i. Based on feudal considerations: “inapposite feudal shackle” – restricts interest for 3rd party

b. Modern rule: use contract principles - intent of the parties is important, frustrates purpose, inequitable results because of reduced sale price

iv. Normally subject to the statute of frauds – “express” easements: because an interest in land must be expressed in writing and signed by grantor

1. Exceptions to rule that easement must be express (PINE)a. Prescription (CHAN*)

i. Continuousii. Hostile & under a claim of right

iii. Actualiv. Notorious and Openv. *Exclusive (from public)

1. Few jurisdictions find no exclusive use if claimant uses the claimed easement for same purpose as servient owner (see Othen)

vi. Othen v. Rosier: Rosier built levee, roadway over two parcels of land used by Othen became muddy and impassible except by horseback; trial court found easement of necessity but Ct. of Appeals found neither necessity nor prescription

1. Must be hostile and adverse: permission (express or implied) negates this

a. Permissive use because Othen must have had to use the gated lane

b. Rare application of “exclusivity” because Othen and Rosier used in same way so use was not hostile

2. Continuous not met because not the same exact pathway used; can’t meet burden to show “same place and within the definite lines claimed by him”

3. Policy: memories fade (having to use testimony from 50-60 years back); trying to quiet title; Othen “attached” himself to the land

4. Other options?a. Implied by prior use: TX (like NY) requires

strict necessity for easement by implied reservation – not ONLY way to access property

b. Estoppel – built house on reliance of access to road but TX does not allow (don’t want to burden the land with oral contracts)

b. Implied by prior use (INTENT factors)i. Implied reservation or grant – original owner retains

dominant estate (reservation – in favor of conveyor) or original owner retains servient estate (grant – in favor of conveyee)

ii. Necessity: reasonably necessity1. Minority/old rule: strict necessity required for

implied easements in favor of the grantor (reservations)

iii. Terms of sale – money paid?iv. Equities – reciprocal benefits?v. Notice – apparent vs. visible (actual or constructive)

vi. The funny word: Quasi-easement – when a landowner uses part of his land for the benefit of another part; once the land is divided the term signals that there was prior use (“quasi” because an owner cannot have an easement in his own land)

vii. Van Sandt v. Royster: original owner ran sewer lines under property to mainline then sold property where sewer lines ran; court recognized an implied easement by prior use even though easement not included in grant

1. Implied reservation: retained dominant estate2. Necessity: needed to connect plumbing to main

sewer (because implied reservation – needing “strict necessity” is the old/minority rule)

3. Terms of sale – not used here4. Equities – not used here5. Notice: sewer lines hidden underground but can still

be apparent condition because appliances were obvious

6. Quasi-easement: original owner was using granted land for the benefit of other part of the land; once divided, term signals prior use

c. Necessity

i. Othen v. Rosier: Rosiers built levee, roadway over two parcels of land used by Othen became muddy and impassible except by horseback; trial court found easement of necessity but Ct. of Appeals found neither necessity nor prescription

1. Unity of ownership of alleged dominant and servient estates (privity of ownership)

a. Yes2. Not a mere convenience

a. Was not the only way out3. Necessity existed at the time of severance of the

two estatesa. None in 1st parcel because roadway not only

way out until after partitionb. None in 2nd parcel because not sold until

after roadway used and can’t have an easement in own land

d. Estoppel – relied on access and investment in improvementi. Holbrook v. Taylor: Taylor builds house using road

through Holbrook’s land; license becomes easement via estoppel

1. Taylor spend substantial amount of money and made improvements on faith of license;

2. Regularly used roadway for workmen, hauling machinery and supplies to build house

3. Only way to get to home (necessity)4. Continues for as long a time as its nature calls for

e. Policyi. Should cost matter?

1. Schwab v. Timmons: landlocked parcel had access to a public road on foot and down a steep cliff where cost of building a road over the cliff $700,000 – no easement by necessity

2. BUT, if reflects parties’ intent, maybe cost of the land reflected this

ii. Should damages be required for a prescriptive easement?1. Compensation not needed: protects long use against

largely unmeritorious claims of an “alleged owner”; reduces litigation; promotes productive land

2. Provide compensation: fairness/equitiesv. Alternative theories to Statute of Frauds requirement

1. Shepard v. Purvine: neighbors don’t deal at arm’s length – friendly relationship

2. Henry v. Dalton: get it in writing or take your chancesvi. Assignment of easements

1. Transferring an appurtenant easement: burdens and benefits usually transfer with servient and dominant estates

a. Requirements:i. Parties so intent

ii. Burdened party has notice (Willard, Van Sandt, implicit in Othen)

2. Transferring Easement in Grossa. Historically, benefit did not transferb. Now, courts will often find transferable if evidence that parties

intended to make it assignable (e.g. “Jenny, her heirs and assigns forever may use the lake.”)

3. Graveyard rights: implied easement in grossa. An implied easement in gross for relative of deceasedb. Recognized by statute in some states and by case law in others

vii. Termination of Easements1. RENAMEPC

a. Release – easement holder agrees to give up rightb. Expires – expressly stated period endsc. Necessity ends – no longer neededd. Abandonment – mere non-use not enough; may end if no use for

SOLe. Merger – dominant and servient estate become one estatef. Estoppel – servient owner relies on statements made by dominant

owner that easement not neededg. Prescription – servient owner wrongfully and physically prevents

easement from being used for SOLh. Condemnation – gov’t exercises eminent domain in servient estate

viii. Public Beach Access1. The Public Trust Doctrine (New Jersey): English common law principle

that all land covered by tidal waters belongs to the sovereign held in trust for people to use (between high and low tide) – roots in Roman jurisprudence

a. Public trust doctrine extends to all land covered by the ebb and flow of the tide, and in addition, all inland lakes and rivers that are navigable

b. Public trust doctrine expands over time: i. Historically for navigation, commerce, and fishing;

becomes applicable to recreation (bathing, swimming and shore activities); Neptune City case (1972) – non-residents don’t have to pay higher fee to use town beaches

c. Raleigh Ave Beach Assn v. Atlantis Beach Club: public charged with trespassing when attempting to walk from wet sand to terminus of Raleigh Ave taking the most direct route back to house; private beach club charging $300-$700 for member access; before club, property open to public free of charge

i. Trial court: public has right of horizontal access to the ocean by means of a three-foot wide strip of dry sand, immediately landward of the mean high water line; public has limited vertical access

ii. Appellate court: cannot limit vertical or horizontal public access to dry sand beach

1. Public can use dry sand for intermittent recreational purposes connected with ocean and wet sand

2. Club can charge a fee to public for extended use if club cleans beach and provides showers and to pay for required lifeguards

iii. Matthews v. Bay Head Improvement Assoc.: NJ’s beaches are unique and irreplaceable, need vertical access to foreshore (i.e. tidal area) but also some reasonable enjoyment of dry sand area; extended Neptune to private but “quasi-public” beaches

iv. Matthews factors used to assess what privately-owned sand area is required to satisfy the public’s rights under public trust doctrine:

1. Location of the dry sand area in relation to the foreshore

a. This case: easily reached2. Extent and availability of publicly-owned upland

sand areaa. This case: no publicly owned beach in lower

township; neighboring beach to the north (Seapointe) was private but available to public for a “reasonable fee”; neighboring beach to the south (Coast Guard) was closed in the summer to protect the piping plover endangered bird

3. Nature and extent of the public demanda. This case: enormous interest; tourism $16

billon annually4. Usage of the upland sand land by the owner

a. This case: chronology – prior to 1996 beach was open access; neighboring building’s permit required open access and use ceded to public for a 220 foot strip of sand beach; available pathway; signage infractions

v. Raleigh extends Matthews: Matthews involved private non-profit entity with close and symbiotic relationship with municipality = quasi-public body; Atlantis Beach Club is fully private organization

vi. Rule: Public trust doctrine requires that public must be given both access to and use of privately-owned dry sand areas as reasonably necessary

1. Rights on private beaches more limited than public beaches (but still expansive!)

vii. Dissent: factors 2 and 4 count in favor of Atlantis; Seapointe has significant public access; Atlantis is private with amenities; limited vertical and horizontal access (given by trial court) is sufficient

2. Massachusetts Lawa. Houghton v. Johnson: plaintiffs wanted an easement to use

defendant-owner’s beach; homeowners land extended to the low water mark because the land was not expressly severed; no express easements for neighbors; used BGVD data to determine low/high water marks

i. Prescriptive easement: conduct was insufficiently adverse to put the owner on notice of a claim of right – instead was a neighborly accommodation because prior beachfront homeowner gave permission

ii. Beach cannot be enclosed but prior owner exercised control over her property to the extent she believed necessary

1. Erected a fence around dunes and posted signsiii. Each plaintiff was required to show more than a collective

but individually sporadic and nonexclusive use of the disputed area

b. License: oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass

i. REVOCABLE1. EXCEPT when license is coupled with a profit (e.g. taking timber) or

under rules of estoppel (Holbrook v. Taylor)ii. Doesn’t need to satisfy statute of frauds

c. Profit (a prendre): right to take something off the land (e.g. timber, minerals, wild game, fish)

d. Covenant (essentially a contract): promises to do or not do something relating to landi. Remedy at law is damages

ii. More requirements to satisfyiii. For the burden to run with the land (WITHN)

1. Writing2. Intent3. Touch & Concern: impacts value of land or related to legal relations

among land ownersa. E.g. restrictions on actual use, such as a covenant to build only a

single-family homeb. E.g. Homeowner’s association dues: paying money for the specific

purpose of maintaining property (roads, parks, etc.)4. Horizontal AND vertical privity

a. Horizontal – privity of esate between original covenanting parties; successive grantor-grantee relationship (must have original land owned by same person); can use a “straw-man” to get around it

i. Historically, in England, only applied to landlord-tenantb. Vertical – privity between successive owners; no adverse

possession (e.g. grantor-grantee, devise (will), descent (inherit))5. Notice

iv. For the Benefit to run with the land (WITV)1. Writing2. Intent3. Touch & Concern: impacts value of land or related to legal relations

among land ownersa. E.g. restrictions on actual use, such as a covenant to build only a

single-family homeb. E.g. Homeowner’s association dues: paying money for the specific

purpose of maintaining property (roads, parks, etc.)4. Vertical privity

a. Burden: covenant only enforceable against someone who has succeeded to the same estate

b. Benefit (relaxed standard): covenant enforceable against someone who has succeeded to same estate or a lesser estate that is carved out (e.g. fee simple to non-freehold estate – term of years lease)

c. Restatement discards vertical privity requirementv. Ways to terminate a covenant

1. Merger, release, acquiescence, abandonment, unclean hands, laches, estoppel; Restatement 7.10: Modification & Termination of Servitudes because of Changed Conditions

vi. Discriminatory covenants1. Shelley v. Kraemer (1948): 30 of 39 property owners in St. Louis signed a

racially restrictive clause to allow only non-black and non-mongoliod people to buy houses; brought suit against Shelley, who was African-American and had no actual knowledge of restriction

a. Analyze covenant with burden (WITHN) and ES (WITNes)i. Lack of horizontal privity – if there had been a common

grantor, this would have helped address notice; only required for covenant (damages)

ii. Covenant does not “touch & concern” property – required for both covenant (damages) and ES (injunction)

iii. Unclear that notice met – where was the restriction recorded? Required for both covenant (damages) and ES (injunction)

b. Should covenant not be enforced?i. Context: property law is full of difficult history

ii. Restraint on alienation that law generally disfavors – takes away a stick in the owner’s bundle of rights

iii. Agreements lower property values by restricting number of potential buyers

c. Racially restrictive covenants would likely violate Fair Housing Act and other Civil Rights Act of 1866

e. Equitable Servitudei. Relaxed requirements than a covenant, and remedy at law is an injunction

1. Tulk v. Moxhay: Tulk conveys Leicester Sq garden to Elms who promised to maintain the garden (affirmative easement), not cover the garden with a building (negative covenant), and allow residents the right to use the square (affirmative easement in favor of a third party); Leicester Sq passes from Elms to Moxhay – deed contains no covenant but Moxhay actually knows of the covenant in the previous deed

a. Covenant doesn’t run because there isn’t horizontal privity in England which allowed horizontal privity only for landlord-tenant

b. Need equitable servitude because otherwise a windfall for Moxhay, who bought the property subject to the covenant and would be able to turn around and sell it for a profit without the covenant

i. Buyer had actual noticeii. To run with land WITNes

1. Writing2. Intent3. Touch & Concern: impacts value of land or related to legal relations

among land ownersa. E.g. restrictions on actual use, such as a covenant to build only a

single-family homeb. E.g. Homeowner’s association dues: paying money for the specific

purpose of maintaining property (roads, parks, etc.)4. Notice

a. Actual vs. constructive (i.e. recorded in registry of deeds)i. Constructive: inquiry and recorded

5. E-S (just a reminder for Equitable Servitudes)iii. Implied equitable servitude depends on the jurisdiction and deals with common

scheme/general plans1. Sanborn v. McLean: in clearly residential neighborhood, McLean wanted

to use a lot for a gas station; 53 our of total 91 lots had restrictions in the grant with 38 not expressly restricted BUT all lots until now have adhered to residential use

a. Implied equitable servitudei. Run with the land

ii. Apply to any landowner having actual or constructive notice

1. Court argued McLean was on inquiry notice because all the lots in the area were used for residential purposes

iii. Must start with a common owner

iv. Never retroactive – benefit is to land retained by common owner, which is later sold