Property – Definition + Concept Outline

Bundle of Sticks Metaphor (What do Property Rights include?) - No right is absolute

 Right to use
 Right to possess
 Right to exclude (others from using it)
 Right to alienate (transfer to someone else – sell, devise, lease, gift, bailment)
 Right to destroy (do not always have this right)
 Right to abandon (do not always have this right)

Lockean Labor Theory: justification of private property that is based on the natural right of one’s own labor, + the right to nature’s
common property to the extent that one’s labor can utilize it

 Law of Accession: if somebody adds or accedes labor to something belonging to someone else + turns it into something else
(something better), you both might be considered owners

Primary Acquisition: 1st Possession:

 Common law holds “first in time, first in right” - that is, a person who (1) controls or holds the property, with or without a
claim of ownership, (2) with an intent to possess, is the original owner with greater rights than the world

Ownership Rights of the Body: Moore v. Regents of the University of California

 No one can own another person because of unalienable self-ownership so usually body parts are not defined as property.
However, once cells leave someone’s body, they are no longer the property of that person

Discovery: Johnson v. M’Intosh

 The sovereign nation that is the 1st to discover (sight) terra nullius (a land of no one) will become the owner of it so long as
that nation makes an effective occupation within a reasonable amount of time
 Effective occupation: improved the land, put labor into it in order to increase economic gain; wild to
domesticated, in a way that is socially beneficial

Capture: Pierson v. Post

 Once an individual takes control of a common resource by capturing it in some way, that individual takes title to and owns
that resource absolutely
 Mortal Wounding: must deprive the animal of its natural liberties, therefore making escape impossible
 Unequivocal Intent: to appropriate the animal to your individual use
 Certain Control: is defined by the context of the situation

Secondary Acquisition: Secondary Possession:

 The ability to possess property already owned by someone else other than through sale or devise

Find:

 When a finder of lost, mislaid, or abandoned property on public or private land (1) takes control of the property and (2)
has the intent of maintaining possession of the property; he has greater rights to the found property than the whole, except the
rightful owner, a prior or rightful possessor, or a person holding through the rightful owner of possessor
 Lost: true owner has superior ownership
 Lost on Public land: finder of lost personal property has better title against the whole world, except the
true owner and except the possibility of a first finder
▫ Armory v. Delamirie
 Lost on Private land: dependent on the context. If property owner lacks knowledge that the property was
on the land, never held possession, and it was unattached from the land, finder has best control
▫ Hannah v. Peel
 Mislaid: true owner has superior ownership
 Mislaid on Private land: finder of lost personal property on private land has no right superior to the
property owner’s rights
▫ McAvoy v. Medina
  Abandoned: true owner is no longer true owner
 Abandoned on Public Land: finder of abandoned personal property has better title against the whole
world
 Abandoned on Private Land: dependent on context

Adverse Possession:

 Involuntary transfer of title from the original owner to the adverse possessor, assuming the adverse possessor satisfies all the
elements of adverse possession in the respective jurisdiction; theft or trespass that, through the process of time may
eventually ripen into title
 Actual Entry: if the adverse possessor is adversely possessing under a claim of right as opposed to color of title,
then they only get what they are actually occupying
 Claim of Right: claim that someone in AP of land intends to claim the land as her own
 Color of Title: condition in which a possessor of land has a document that purports to give title to the
property but that for some reason is ineffective to do so
▫ Rule 1: AP under color of title automatically satisfies the adversity requirement
▫ Rule 2: actual occupation of what the deed describes at the end of the statutory period, assuming
the AP can satisfy everything else, gives the AP constructive possession of everything
 Exception: If, relative to everything described in the deed, the AP only occupies a small
portion of it, constructive AP may not be applicable
 Exclusive Possession: AP must be the only person occupying the land, even if it is only one piece of the land
 Adverse Entry: the entry onto the land was non-permissive + intentional
 AP is innocent: received a fake deed; some jurisdictions follow this
 AP is a knowing trespasser: few jurisdictions follow this
 AP’s state of mind if irrelevant: more jurisdictions follow this
 Open and Notorious: AP must give owner constructive notice
 Exception: if it is a minor boundary dispute, and the defendant wants to claim AP, constructive notice is
not sufficient and actual notice is required
▫ Exception to this Exception: Mannillo v. Gorski
 If actual notice is not possible
 If AP was mistaken
 If only a small portion of land was involved
 If it would cause AP a great expense to undo improvements
 Continuous for Statutory Period: the amount of time that must pass between the adverse entry + when the adverse
possessor has a right to claim title; varies between jurisdictions
 Present Disabilities: a person typically has 5 additional years, from the time their disability is removed, to
bring a cause of action against an adverse possessor if the person was one of the following at the time the
cause of action accrued + is one of the following at the time the statutory requirement ends:
▫ Minor
▫ Of unsound mind
▫ Imprisoned
 Howard v. Kunto:
 Privity of Estate: successive or concurrent interest in the same property, such as between landlord + tenant
or grantor + grantee
▫ Must be a voluntary transfer of an interest in land from A to B
▫ If they are in privity, the statutory requirement is satisfied (because previous owners can be added
on to meet the requirement)

Gift: voluntary transfer of property from one person to another without compensation (without consideration – distinguishes gift from
contact)

 Gift Inter Vivos: voluntary transfer of personal property between living people, without consideration; once all the
following elements are satisfied, you cannot take back to gift; Gruen v. Gruen
 Intent: oral or circumstantial evidence must prove original owner’s intent to give
 Example of circumstantial evidence would be a birthday gift – it's wrapped
 Delivery: if the chattel is delivered, this is often proof of intent
  Bailment: relationship by which possession + control of property is temporarily delivered to another for
safekeeping; delivery may come before the intent to give
 Manual delivery is required for there to be a valid gift
▫ Exception: constructive or symbolic delivery is allowed if manual delivery is impractical or
impossible
 Constructive Delivery: handing over something to the donee that will allow them to
access the chattel
 Accepted by all jurisdictions
 Symbolic Delivery: handing over something that is symbolic of the gift
 Not accepted by all jurisdictions
 Delayed possession: giving someone something today, when they cannot possess it until tomorrow
 Acceptance: unless a donee outright rejects a gift, then the court assumes there was acceptance
 Without Consideration: this is the burden of the donee to prove
 Gift Causa Mortis: voluntary transfer of personal property, also between living persons, but the donor is giving the gift to
donee because of imminent death; almost always trumps a will; Newman v. Bost
 Intent: oral or circumstantial evidence must prove original owner’s intent to give
 Delivery: donee cannot necessarily be in possession before there is intent with this type of gift, there must be a re-
delivery of the chattel here, on the same grounds as a gift inter vivos
 Acceptance: unless the donee outwardly rejects the gift, the court assumes acceptance
 Without Consideration: burden of the plaintiff to prove
 Precipitated by a Fear of Imminent Death: gift is irrevocable if + when the donor dies
 However, it can be revoked any time before the donor’s death
 If the donor does not die – jurisdictions differ + are split on how to proceed:
▫ Some say it is automatically revoked if the donor does not die
▫ Some say it is not automatically revoked, but if the donor wants to revoke, they are able to do so
 This appears as a transfer from a gift causa mortis – gift inter vivos
 *In Writing: some jurisdictions prefer these types of gifts be in writing

Estates in Land: Types of interest individuals can have in real property

 Fee Simple Absolute: maximum ownership interest in land that one can have; present possessory estate in real property; O
to A + her heirs – OR – O to A
 How to Create:
 Words of Purchase: refers to who is getting the interest
 Rights Associated with an FSA:
 Right to use
 Right to possess
 Right to exclude
 Right to alienate
 Fee Tail: interest in land that descends automatically to one’s issue when they die + will continue descending until the
bloodline runs out; O to A + the heirs of her body
 How to Create:
 Words of Purchase: refers to who is getting the fee tail
 Words of Limitation: conveys what the grantee is receiving
 Issue: biological descendants of the decedent
 How to Destroy (Disentail): fee tail – fee simple absolute
 Fee tail tenant sells to another individual
▫ However, a fee tail cannot be devised when one dies
 Fee tail tenant sells to a strawman, who conveys it to original tenant, who then devises it to B
 Rights Associated with a Fee Tail:
 Tenant in fee tail: does not have a future interest
 Tenant in fee tail’s issue: nothing
 Life Estate: estate in land that lasts as long as the life of the life tenant or some other life; interest in real property that is
held only for the life of the holder, in which the holder possesses no future interest beyond her lifetime; everyone you are
creating a future interest in must be alive when the transfer becomes effective; O to A for life – OR O to A for the life of B;
White v. Brown
  How to Create:
 Words of Purchase: refers to who is getting the life estate
 Words of Limitation: conveys that it is only a life estate
 Rights Associated with a Life Estate:
 Right to use so long as the measuring life is alive
 Right to possess so long as the measuring life is alive
 Right to exclude 3rd parties so long as the measuring life is alive
 Limited alienation rights:
▫ Cannot sell or devise if the duration is for your own life
▫ Can devise if B has a life estate for the life of A
 Term of Years: what can be understood today as a leasehold – temporary right to property governed by a lease; or a term
lease – lease by which the tenant has the right to possess property for a term of years that has a certain beginning + certain
ending; O to A for X years
 How to Create:
 Words of Purchase: who the term of years is being given to
 Words of Limitation: the amount of time the term of years is being given
 Defeasible Estates: something that can end or be cut short if a particular event occurs, most of the time in reference to fee
simples; sometimes these events have to do with land (purposes of the land), or behavioral control
 Fee Simple Determinable: fee simple (or life estate) that ends automatically if a stated event occurs; always creates
a future interest; O to A so long as the land is used for X, then to O
 Language of Durational Limitation: the key to this kind of estate is language of time; a comma won’t
appear until after this language
▫ So long as
▫ Until
▫ While
▫ During
 Future Interests:
▫ Future interest in Grantor:
 Grantor has a future interest in fee simple absolute
 ‘Then to O’ does not need to be there because it’s understood if it does not appear
▫ Future interest in Transferee:
 It is no longer a fee simple determinable because future interest is in a 3rd party
 ‘Then to B’
 Automatic Ending: if the stated event occurs, the fee simple determinable ends automatically
 Fee Simple Subject to Condition Subsequent: may or may not end if a stated event occurs, + one where the
grantor retains future interest; always creates a future interest in the grantor; O to A, but if the land is not used for X,
then to O
 Language of Express Condition: uses more explicit conditional language, rather than temporal terms
 Future Interest: always in the grantor
 Outright Grant, then Conditional Language:
▫ Future interest in Grantor:
 A has a present possessory interest in fee simple subject to condition subsequent, O has a
future interest in fee simple absolute
▫ Future interest in Transferee:

This is not a fee simple subject to condition subsequent

A has a future interest in fee simple subject to an executory limitation
 May or May NOT End Automatically:
▫ When it does NOT end automatically: if future interest is in grantor
 Example: O to A, but if she goes to law school, back to O. A goes to law school 1 year
later
 A has a present possessory interest in FSSCS, O has a future interest in FSA
 A cannot become an adverse possessor
 If the grantor (O) tells the person to get out or take legal action, then O has a
present possessory interest in FSA
  If A stays, she is an adverse possessor, so now she could gain an FSA
▫ When it DOES end automatically: if future interest is in transferee
 Example: O to A, but if she goes to law school, then to B
 A has present possession in a FSSCS. B has an executory interest in FSA

Future Interests: presently existing property interest to become possessory at some time in the future

 Future Interest in Grantor (Revisionary Interests): any future interest in a grantor

 Reversion: reversionary interest that follows the following kind of estates:
 Life Estate: estate in land that lasts as long as the life of the life tenant or some other life; interest in real
property that is held only for the life of the holder, in which the holder possesses no future interest
 Fee Tail: interest in land that descends automatically to one’s issue when they die + will continue
descending until the bloodline runs out
 Term of Years: what can be understood today as a leasehold – temporary right to property governed by a
lease; or a term lease – lease by which the tenant has the right to possess property for a term of years that
has a certain beginning + certain ending
 Contingent Remainder in Another Grantee:
 Possibility of Reverter: the future interest in a grantor that only follows a fee simple determinable
 Fee Simple Determinable: fee simple (or life estate) that ends automatically if a stated event occurs;
always creates a future interest
 Right of Entry: reversionary interest that only ever follows a fee simple subject to condition subsequent
 Fee Simple Subject to Condition Subsequent: may or may not end if a stated event occurs, + one where
the grantor retains future interest; always creates a future interest in the grantor
 Future Interest in Grantee: future interest in someone other than the grantor
 Vested Remainder: future interest in a transferee that is both given to an ascertained person + cannot be subject to a
condition precedent
 Ascertained Person: somebody who is born + identified
 Condition Precedent: condition that must be satisfied before the future interest becomes vested
 Indefeasibly Vested Remainder: vested interest that is sure to become possessory at the end of the
preceding estate; vested remainder is ok to use; O to A for life, then to B
 Vested Remainder Subject to Open: remainder to a class of people that is vested in at least one person –
at least one person of the class is ascertained + in addition, there are no conditions precedent; O to A for
life, then to B’s children (B has one child at the time of conveyance)
▫ If there are no ascertained persons in the class at the time of conveyance, it is a contingent
remainder that becomes a vested remainder when there becomes an ascertained person in the class
 Vested Remainder Subject to Divestment: vested remainder that could be divested before it becomes
possessory (could lose because of some facts stated that are violated); O to A for life, then to B, but if B
does X, then to C
 Contingent Remainder: remainder that is either given to an ascertained person or subject to a condition precedent
 Alternative Contingent Remainder:
▫ Example: O to A for life, then to B if B has done X, but if B has not done X, then to C
 A has a life estate, B has a contingent remainder in FSA, C has a contingent remainder in
FSA
 Remainder: reversion in grantor will typically follow if grantor retains interest
 Exclusory Interests: future interest in a grantee that will ripen into possession only on the occurrence of some event
specified in the conveyance
 Shifting Exclusory Interest:
▫ Example: O to A for life, then to B, but if B does X, then to C
 A has a life estate, B has a vested remainder subject to divestment in a fee simple subject
to executory limitation, C has a shifting executory interest in FSA
 Springing Exclusory Interest:
▫ Example: O to A for life, then to B X years after A’s death
 A has a life estate, O has a reversion in FSSEL, B has a springing executory interest in
FSA
 Rules Limiting Future Interests:
  Rule Against Perpetuities: No interest in property 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; makes certain future interests void at the moment of creation if there
is any possibility of them either vesting or failing to vest beyond 21 years after the death of a life in being
 Step 1: identify all lives in being
 Step 2: find a validating life (a life that proves that the contingent interest will vest or fail within the life of
that person or 21 years of their death)
 Future Interests Affected:
▫ Contingent Remainders: remainder that is either given to an ascertained person or subject to a
condition precedent
▫ Executory Interests: future interest in a grantee that will ripen into possession only on the
occurrence of some event specified in the conveyance
▫ Vested Remainder Subject to Open: remainder to a class of people that is vested in at least one
person – at least one person in the class is ascertained + there are no condition precedents
 What happens if a future interest violates rule against perpetuities?
▫ Future interest is void OR Court may reform the grant in a way that does not violate the rule
 The Fertile Octogenarian: unrealistic legal fiction than any living person (male or female) is capable of
having a child
▫ Example: O to A for life, then to A’s children who reach 30. At the time of conveyance, A, age
70 has 2 children – B + C, who are 32 + 30, respectively
 The Unborn Widow: presumption that widow or widower of a living person named in a will or
conveyance may turn out to be someone who was not yet born at the time the conveyance became effective
▫ Example: O to A for life, then to A’s widow. A is currently married to B

Concurrently Held Property:

 Concurrent Ownership: property owned by multiple people at one time

 Tenancy in Common: most alienable, with low protection; each co-tenant owns their individual share (can be equal
or unequal) + has a right to possess, under common law, the entirety of it; default concurrent ownership
 How to Create:
▫ If property is conveyed or purchased by more than one individual + it is not specified otherwise, it
is a tenancy in common (default)
 Possession:
▫ Each TIC has a right to possess, unless otherwise stated
 Alienation:
▫ Fully alienable in every way that property can be alienable
 Partition: judicial proceeding that the court must ultimately approve; dividing into parts
▫ Partition in Kind: more favorable; divides property into separate parcels
▫ Partition by (judicial) Sale: less favorable; occurs only if PIK is impractical + sale better serves
interests (economic + non-economic, of all parties involved)
 Other Attributes:
▫ Freely transferrable
▫ Attachable by creditors for separate debts
 Joint Tenancy with a Right of Survivorship: moderate alienability + protection; each co-tenant simultaneously
owns their fractional share, as well as the entirety of it; can destroy survivorship rights while you are alive, but not
upon death
 How to Create:
▫ Must include the language “as joint tenants with a right of survivorship”
▫ Must have 4 unities:
 Time: interest must vest in JTs at the same time
 How to preserve this: Strawman Transaction: convey to 3rd party, 3rd party
conveys to two parties as JTROS
 Title: interest must take place under the same instrument
 Interest: must be identical + of the same duration
 Identical: must each have equal parts of the property
 Duration: must each have property for same amount of time
 Possession: must have a right to possess the entirety of it under common law
 Possession:
 ▫ Unity of possession must be intact
 Alienation:
▫ Each person’s share is fully alienable while they are alive, but not at death
 Partition:
▫ See Tenancy in Common
 Severance: each has the power to do this at any time
▫ Inter Vivos Conveyance to a 3rd Party:
 If conveyed to a 3rd party, it becomes a tenancy in common between the two owners
 It is severed when the contract is signed, even if the closing does not happen until later
 If all JTROS sign the contract – then it is often severed at the formal closing
▫ Conveyance to Self:
 Does not change much
▫ Seizure by Creditor:
 Seizure affects a severance – creditor + other owners will be TCs
 Lien does not affect a severance – if JT who’s share is placed on a lien dies, then the
JTROS kicks in
▫ Mortgaging of One’s Interest:
 A joint tenancy is not destroyed when one of the JTs mortgages his interest in the
property
▫ Conveyance of Lease, Life Estate:
 The trend today is to find no severance in either of these situation
 Tenancy by the Entirety: low alienability, high protection; form of land ownership for a married couple where
each have an undivided interest in the entire property; cannot alienate interest to a 3rd party while you are alive +
destroy a TE
 How to Create:
▫ Must have 4 unities:
 Time: interest must vest at the same time
 Title: interest must take place under the same instrument
 Interest: must be identical + of the same duration
 Identical: must each have equal parts of the property
 Duration: must each have property for same amount of time
 Possession: must have a right to possess the entirety of it under common law
▫ Must be married
 Presumption that a Conveyance to Spouses creates TE, in jurisdictions that recognize TE:
▫ Gives married couple the most protection over the property
 Not universal in common law states; not recognized in any community property state:
▫ There are currently 10 states that do not recognize TE
 Possession:
▫ Each has the right to possess the entirety of it
 Alienation:
▫ No inter vivos alienation – because they do not own fractional shares
 Partition:
▫ One spouse alone cannot bring a partition action
 Divorce:
▫ Terminates TE
 Marital Property: Property acquired by either spouse from the marriage date until the time of separation. In most states,
marital property is the only property subject to equitable distribution if the parties divorce
 Community Property: Property accumulated during a marriage that is subject to division upon divorce. During both
spouses’ lifetimes, each has a one-half ownership interest in all community property
 Reasons for Concurrent Ownership:
 No Choice:
 Could have been devised jointly
 Could be two heirs of someone who dies intestate
 Purchase of property by a married couple in a community property state
 Treatment of marital property in all states at the time of divorce
  Efficiency
 Co-tenants share the responsibilities + risks, taxes, mortgage payments, + more
 Reasons for not wanting Concurrent Ownership:
 Collective Action Issues (if there are too many owners with fractional shares): mutual efforts embarked upon by a
group of individuals in pursuit of a shared objective
 Reliance Issues:
 Easy alienability of a tenant’s interest in JTROS makes this form of co-ownership unreliable +
unpredictable
 Marriage: you may not want to be co-owners of everything you own

How Property is Held + Divided during Marriage, at Death, + at Divorce

Whether property is characterized as community or common law property depends on domicile of spouses when it was acquired (its
designation won’t change unless parties jointly agree)
Common Law Jurisdiction Community Property Jurisdiction
During Can hold separately Equal share if acquired during

Each spouse can manage 100%, but both spouses must consent to
real estate transactions

Separate creditors can reach 100%

Each spouse is a fiduciary (person acting for the benefit of another)

of the other

Tenancy by the Entirety is not recognized; Joint Tenancy with Right

of Survivorship + Tenancy in Common are recognized (partition
available for these, but not community property)

In some states (CA), one spouse can sue the other for
mismanagement

No duty of support
Death Devise: can devise your entire share Devise: can devise you half share only

Intestacy: spouse is an eligible heir Intestacy: spouse is an eligible heir

Elective Share: 30% or 50% of entire share

 May be limited to long-term marriage
 Not all property subject to elective share
 Can be barred (if untimely)
 Can be waived (by valid pre-nup)
Divorce Old Rule: title Equal division OR equitable distribution (majority)

New Rule: equitable distribution

Are the following things ‘property’?

 Educational Degrees: NO
 Michigan: reimbursement ‘alimony’ for contributions
 Florida + NY: can consider contributions to educational attainment when dividing marital property, but not when
considering what constitutes marital property
 Arguments in Favor:
 Contribution, only asset in a short-term marriage
 Alimony is subject to modification, property is not
 Arguments Against:
 Speculative, locks in because it is non-modifiable
 Earning Capacity: NO
 Goodwill in a Business / Reputational Value: Depends
 Goodwill: value of a business above + beyond its tangible assets; reputational capital of a business
  In most states, it is too similar to earning capacity

Marital or Separate Property?

 Majority Rule: only marital property is divided + allocated at the time of divorce (same in Common Law + Community
Property)
 Exception: Hotchpot states, everything (whether marital or not) is divided + allocated at the time of divorce
 Marital:
 Earnings acquired during the marriage
 Property acquired with marital earnings
 Increases on separate property attributable to marital labor / earning (active increases)
 Future income based on marital labor (royalties, insurance commissions, contingency fees)
 401k, pension (part received during marriage
 Immediate pay-out (if it is relatively small)
 QDRO (if it is a larger amount)
 Separate property that has been ‘transmuted’ into marital property
 Separate:
 Inheritances, devises, + gifts during the marriage
 Property brought into the marriage
 Property purchased during the marriage with separate earnings
 Rents + profits from completely separate property
 Increases in separate property not attributable to either marital labor or earnings (passive income)

Dividing Marital Property:

 Equal Division (3 states, right down the middle)

 Equitable Distribution (everyone else)
 Replaced old title rule in common law states
 Title Rule: you walk away with whatever you have title to during the marriage
 Historically, wives couldn’t have title to a whole lot, so they didn’t walk away with much
 Therefore, under the old rule, the only way that wives could receive financial support at divorce (if they
didn’t own property) was through alimony
 Developed alongside no-fault divorce (which made it easier to get out of a marriage, so equitable distribution
provides some protection
 Based on: need, contribution, duration, + fault (maybe)
 Starting point is usually 50/50
 Sometimes 50/50 is rebuttable presumption
 Once divided in a divorce decree (or signed off by the court if out-of-court settlement), it is final + non-modifiable

Waste Actions:

 Waste: the failure of a lessee or mortgagor to exercise ordinary care in the use of the premises that causes material +
permanent injury beyond ordinary wear + tear
 If 2 people have present possessory interest (or someone has future interest) + one is messing up the property, the
other can take legal action against the life estate holder
 Affirmative Waste: voluntary, willful actions that diminish the value of the property
 Permissive Waste: life estate holder’s neglect of the property – in a way that diminishes the property value for everyone in
the future (failure to take care of property)
 Ameliorative Waste: brought by a future interest holder if life estate tenant is doing something to enhance the property, but
in a way that original owner did not intend for it to be used

Fair Housing Act:

 What does it do?

 Prohibits state + private actors from discriminating based on race, color, religion, sex, disability, + familial status in
the sale + leasing of property
 Familial Status: discrimination because of number of family, whether there are children or not, but not on
whether you are married
  Disability: physical or mental impairment that substantially interferes with one or more major life activities
 Not Covered: sexual orientation, marital status, economic class, sex offenders, people currently using a
controlled substance, or criminal status
 Coverage: prohibits state + private actors from discrimination in all these areas:
 Sale of Property
 Leasing of Property
 Zoning Laws + Housing Ordinances
 Land Use Regulations
 Racially Restrictive Covenants
 Low-Income Housing Decision
 Lending Practices, Real Estate Practices, etc
 All Discriminatory Advertisements – ads indicating a preference
▫ Exception: ads indicating a preference for sex in rentals where part of the housing is shared, like a
common bathroom)
 Narrow Exceptions:
 Owner-occupied apartments
 Owner selling or leasing single family housing if no more than 3 such single-family houses
 Zoning laws that contain numerical occupancy limits
 Private clubs + religious institutions
 HOPA 55+ communities
 Reason for these:
 The more intimate the setting, the more likely that anti-discrimination law won’t apply
 Even if the exceptions apply, still cannot engage in discriminatory ads
 Discrimination under FHA:
 Disparate Treatment: when discriminatory motive exists + can be proven; where a potential tenant is turned down
because of membership in a protected class
 Disparate Impact: when discriminatory motive cannot be shown, but a policy has a disparate impact on a particular
group
 EX: decisions by state housing authority to give credits to developers who build low-income housing, but
build it only in areas that are already racially segregated
 Failure to Accommodate People with Qualifying Disability: discrimination

Judicial Land Use Control:

 Nuisance: tort whose subject; matter out of place; nothing is a nuisance in + of itself, but becomes so in the wrong context;
intangible invasion that substantially interferes with a person of ordinary sensitivity’s / reasonable persons use + enjoyment
of land, that is either intentional + unreasonable OR unintentional result of negligent or reckless conduct
 Intentional + unreasonable: common law definition of intentional
 Unreasonable Balancing Test: gravity of the harm to the social utility of the conduct
 Unintentional result of negligence or reckless conduct: also, a balancing test, as mentioned above
 Invasions that Qualify:
 Sounds
 Smells
 Dust
 Vibrations
 Invasions that DO NOT Qualify:
 Ugly things (aesthetic nuisance)
 Invasions that MIGHT Qualify:
 Halfway houses
 When does Liability Attach? (When is something a nuisance?) - LIABILITY PHASE
 Intentional + Unreasonable:
▫ Intentionally: with the purpose of achieving that result OR engaging in conduct knowing that
result could occur
▫ Unreasonably: depends on the jurisdiction
 Some define it as: A lot (the invasion is quite substantial – level of interference is high)
▫ If you are a plaintiff, you want this
 Others define it as: balancing test (gravity of the harm to the plaintiff against the social
utility of the conduct)
▫ If gravity of harm > than social utility of the contact, then it is unreasonable
 Unintentional Result of Negligent or Reckless Conduct:
▫ Negligent or Reckless Conduct: acting unreasonably
▫ Unreasonable: balancing test (utilitarian calculus)
 Remedies (assuming something is a nuisance) - REMEDIAL PHASE
 Temporary Damages (for amount harmed from the time the nuisance started): amount plaintiff has
been damaged from the start of the nuisance to the time of litigation; can be granted with injunction
 Injunction (Property Rule): a rule that says the owner of a right cannot have that right taken away
without his consent – this is what plaintiffs want
 Permanent Damages (Liability Rule): a rule that says that the owner of a right can have that right taken
away for damages determined by a court – this is what defendants want

Plaintiff Defendant
Property Rule (in P’s favor): injunction at no cost, which Property Rule (in D’s favor): no injunction, no abatement;
forces defendant to abate the nuisance; balancing the equities balancing the equities favors defendant because social utility is
favors the plaintiff high OR gravity of harm is low
Cases:
 Morgan v. High Penn Oil Co.: a party who
intentionally + unreasonably commits a non-
trespassory invasion of another’s land can be held
liable for private nuisance, even if the party was not
negligent
 Estancias Dallas Corp. V. Shultz: a trial court must
engage in balancing the equities when determining
whether an injunction is appropriate to abate a
nuisance
Balancing of Equities Test:
 Injury which may result to the defendant + the public
by granting the injunction
 Injury to be sustained by the plaintiff if the writ be
denied
 If injury to plaintiff < injury to the defendant + public,
then relief refused
Plaintiff Defendant
Liability Rule (in P’s favor): defendant compensates plaintiff Liability Rule (in D’s favor): Plaintiff compensates defendant to
for nuisance. Plaintiff gets the injunction because gravity of close. Plaintiff gets the injunction, but only if it is willing to pay
harm is high enough BUT the plaintiff might be forced to sell for it
the injunction back to the defendant at a price determined by Case:
the court because social utility is very high  Spur Industries, Inc. V. Del. E Webb: when the public
Case: develops land in the vicinity of a public nuisance, the
 Boomer v. Atlantic Cement Co.: permanent damages, action creating the nuisance must be ceased by the party
rather than an injunction, are appropriate when the responsible for its creation, however, said party is entitled
damages resulting from a nuisance are significantly to compensation
less than the economic benefit derived from the party
causing the harm

Private Land Use Control – Servitudes:

 Servitudes: burdens on land that are the result of private contracts; can arise through implication; non-possessory interest in
land that allows the holder to make use of the land or prevent something from being done on the property
 Easement: specific legal right to pass through or otherwise access real property belonging to another person; right
to use someone else’s land that runs with the land
 Why do we recognize this?
▫ Enhance the value + marketability of land
▫ Might arise by operation of law
 Land Interests: in writing, with exceptions
 Compare to: license (which is freely revocable + not in writing)
 Types:
▫ Appurtenant: 2 parcels – dominant + servient
 Land gets the easement – runs with the property + automatically to the successors in that
land of that estate (benefit)
 Burdened parcel – usually runs with the land, but not always – they (occupiers
of burdened land) must have notice to be bound
 Burden land (servient) + benefit land (dominant)
▫ In Gross: 1 parcel – servient only
 Easement that belongs to the easement holder independently of a parcel of land + thus
does not run with + is not attached to the land
▫ Close Cases: Willard v. First Church of Christ, Scientist: a grantor may reserve an interest in
land to be granted, for use by a 3rd party
 Duty to maintain is with the easement holder
 Interference with an easement is trespass (e.g. servient tenement erects a chain fence)
 Scope of easement: must look to the language of the granting document + reasonably foreseeable uses
 Misuse of an easement is trespass. A dominant tenement might misuse if the use is outside the scope (e.g.
easement to reach water might include walking + riding a bike, but not driving a car) OR if the number of
users unreasonably increases
 How to Create:
▫ Express Grant: A grants B an easement appurtenant over A’s land to reach the beach OR A
grants B an easement in gross to use A’s lake
▫ Reservation: created by the grantor of real property to benefit the grantor’s retained property + to
burden the granted property
 In Grantor’s Favor: A sells land to B that borders the beach, but reserves an easement
in the grantor’s favor for the grantor to reach the beach
 In 3rd Party’s Favor: A sells land to B but reserves an easement in C’s favor to reach the
beach. Whether this is recognized depends on the jurisdiction in question (Willard)
▫ Implication: they are not expressed + will not appear anywhere on a deed; arise by operation of
law; both are going to easements appurtenant
 Prior Use: right of way that arises by operation of law that is based on the use of
property before it is divided into separate parcels
 Van Sandt v. Royster: an easement will be implied in favor of a grantor for
sewer pipes running under the grantee’s land, because the grantee is charged
with notice, as the existence of such pipes is apparent even if it is not visible
 Elements:
▫ Begins with a common owner that used the land in a quasi-easement
way
▫ Parties intended for that use to continue upon division
 Could be reflected in purchase price
 If the easement is reasonably necessary + if it’s apparent, then
we infer that the parties intended for it to continue
▫ Easement was apparent
▫ Easement is reasonably necessary to the enjoyment of the dominant
tenement
 If the owner would incur great expense to re-route, then it is
reasonably necessary
 Necessity: arises by operation of law that is based on the absolute necessity for an
easement for the owner of the dominant tenement to reach a public road; when you have
a common owner, who divides property + upon division renders one part inaccessible to a
public roadway (easement goes on the piece of land that completes the land locking that
makes the other parcels land locked); must exist as of the day of sale
 Othen v. Rosier: no easement by necessity is created where the easement exists
out of mere convenience
 Elements:
▫ Must begin with a common owner
 ▫ Who divides her land + at the moment of division, one of the parcels
becomes land locked
▫ A right of way over the servient tenement, which in this case, is the
parcel that completes the land locking to reach a public road
▫ *If necessity goes away, the easement automatically goes away with it
▫ Prescriptive: easement acquired in a manner like that of adverse possession
 Elements:
 Same elements as adverse possession EXCEPT:
▫ Exclusive occupation
 Elements of AP:
▫ Open + notorious
▫ Adverse
▫ Continuous for applicable period
 How to Transfer:
▫ Easements Appurtenant:
 Dominant Tenement: the benefit passes, however it is conveyed, automatically to any
kind of successor in interest to the original beneficiary, even if they are an AP
 Servient Tenement: burden transfers automatically to all successors except purchasers.
Only transfers to purchasers if they have notice (actual or constructive)
 Actual / Record Notice: written in the deed
 Constructive Notice (record or inquiry): notice that is presumed by law to
have been received on account of existing facts + circumstances
 Inquiry Notice: notice that is imputed to a person at the time that existing info
would prompt an ordinarily prudent person to investigate the issue further;
reasonable inspection of the premises would have informed them
▫ Easements in Gross:
 Benefitted Person / Entity: transferred automatically if
 it’s being transferred for a commercial purpose (condition one);
 usually, must be close to the original commercial purpose it was being used for
 *recreational easements do not transfer automatically unless the original
contracting party so intended (condition two)
 Servient Tenement: burden passes automatically to all successors of interest, except to
purchasers, whom it also passes to if they have notice (same as appurtenant)
▫ Miller: easements in gross are not divisible without the consent of all parties holding an interest
 Issues:
 Is the benefit of an easement in gross assignable?
▫ Yes – if they are commercial or if original parties so intended them to
be. Here, they did intend them to be.
 Can you subdivide an easement in gross?
▫ If you do subdivide it, tenants must act together – they must act
together to transfer to 3rd parties
 Did original owners adversely possess the right to swim over time since it was
never expressly granted?
▫ Yes
 How to Terminate:
▫ Written release by benefitted party
▫ Merger of servient + dominant tenements
▫ Abandonment by owner (temporary disuse won’t qualify; railway easements)
▫ Misuse by easement holder (misuse = trespass = automatic termination in some jurisdictions)
- using it beyond its scope (anything written down + anything reasonably foreseeable beyond
that)
▫ Expires or is violated (Willard) - unlikely to reignite in this case
 License: oral or written permission given by the occupant of land allowing the licensee to do some act
that otherwise would be a trespass; freely revocable
 Covenants: type of promise affecting the use of property; enforceable promise that, at least in practical effect, attaches to the
property; contract or promise whose subject is property + whose benefits + burdens run with the land; they are hybrids (part
contract, part property); they are contracts whose terms run with the land (this is different than most contracts) - makes
promises binding on 3rd parties who are not the original contracting parties (this is the property piece)
 Affirmative: slightly harder to enforce on 3rd parties because it makes someone do something; agreement to do
something
 Negative / Restrictive: agreement not to do something on your land; much more common (HOAs)
 Similarities with Easements:
 They are both a form of private land use regulation
 Their interest in land – they are subject to the statute of frauds (they must be in writing)
▫ Exception to covenants: when someone wants to enforce a negative equitable servitude
 They both run with the land (harder to see covenants because they are promises about land)
 They both affect the value of land (a land burdened will likely have a lower value)
 Differences from Easements:
 Biggest difference – with real covenants, there is a privity requirement for them to run with the land
 Uses:
 Exclusory Land Use Devices (Shelly v. Kraemer): neighbors in an entire town would get together + say
they are going to be racially or religiously exclusionary – because this does not fall under the 14th
amendment (because it is private)
▫ It’s illegal under the FHA, now – even though it is private
 Zoning Substitutes
 Common Interest Community (CIC) Regulations
▫ Architectural, pet policy, car policy, flags / speech
 Constitutionality (depends on whether it is a state actor)
 Types:
 Real Covenants: a written promise with respect to land that is enforceable at law; enforceable in a suit for
monetary damages; Adverse Possessors can never be benefitted or burdened by real covenants
▫ Operationalized: A sells land to B. B agrees not to use the land for anything other than single-
family residential. -- A is the covenantee (gets the benefit) + B is the covenantor (gets the burden).
A is on the dominant tenement + B is on the servient tenement. Later, B puts a liquor store on the
property + A wants damages (amount by which A’s property has been devalued). A can easily get
damages in this case. A sues B directly to enforce the contract as a real covenant.
▫ A sells B. B agrees not to use the land for anything other than single-family residential. B sells to
C. -- C is a successor in interest to the covenantor. C puts a liquor store on the property. Can A,
the original covenantee, sue to enforce the covenant as a real covenant against C, a successor in
interest to the covenantor? Does the burden of a real covenant run to successors in interest? OR
Do real covenants run to successors in interest of the servient tenement? YES – if:
 Running Elements: Servient Tenement:
 Must be a writing between the original contracting parties
 Intent – original parties must have intended for it to run
 Notice – if the successor is a purchaser
 Promise must touch + concern the land OR be in gross (ask does the promise
relate to the land itself? Does the promise affect the value of the land? Does the
promise restrict what I can do on my land?)
 Strict vertical privity between B + C – C must succeed everything B has
 Running Elements: Dominant Tenement:
 In writing
 Intent – original parties intended for the benefit to run
 Touch + Concern
 Relaxed vertical privity between A + D – D must succeed to some interest
that A has
 *If the covenant is being enforced by a successor in interest to the
benefitted parcel against the successor in interest to the burdened parcel,
the party seeking enforcement must show running on both sides
 Equitable Servitudes: a promise regarding property that is enforceable in equity; they want an injunction
rather than money
▫ Differences from Real Covenants:
 Remedy for breach
  In one circumstance, the writing requirement for ES is suspended
 No privity needs to be in place
▫ Operationalized:
 Running Elements: Servient Tenement:
 Writing
 Intent
 Touch + Concern
 Notice
 Running Elements: Dominant Tenement:
 Same as servient, but no notice is required
▫ Writing Requirement Exception: Negative / Restrictive Equitable Servitudes
 *For equitable servitudes to run to successor in interest of the burdened land,
general rule says you need: writing, intent, touch + concern, + notice (if successor is
purchaser)
 McLean exception: does not apply in every jurisdiction:
 If the land was originally held by a common owner who, when dividing the
property initially subjected some of those parcels to a covenant (with recording)
+ then sold others without the covenant, a covenant at that time applies to all
parcels -
 If somebody later wants to enforce that covenant as an equitable servitude (does
not work if someone wants monetary damages)
 Must be a restrictive / negative covenant
 Must be a jurisdiction willing to recognize this exception
 Two issues there:
 Did a negative equitable servitude burden the all parcels on the land when it was
first divided?
 Yes
 Whether or not a successor in interest was also burdened by the covenant, even
though it was not written down.
 Covenants as Exclusionary Land Use Devices: Shelley v. Kramer
 Issue:
▫ Is this covenant enforceable as a covenant at all? Does the burden of this ES run with the land?
 Writing – yes
 Inten for it to run – yes
 Notice for Purchasers – yes
 Touch + Concern – this is unclear, because it has to be about the land, it cannot be in
gross
▫ Assuming it is an enforceable covenant, did its enforcement by state court violate the
Constitution’s equal protection clause?
 Holding:
▫ The covenant does not violate the Constitution on its face because there is no state action
▫ When the state court upheld the covenant, that triggered the equal protection clause: judicial
entanglement
 Today: The covenant today is no longer legal on its face because it violates the FHA
 Terminating Covenants:
 Merger: if burdened + benefitted comes into the hands of a single owner
 Release: beneficiary of a covenant can release the burdened party
 Expiration: covenant may have an expiration date
 Changed Conditions Doctrine: all property in a certain area is restricted (before surrounding property was
developed), then overtime, surrounding properties made the area a different way than the restriction put
into place – people in this area may ask the court to extinguish the covenant (this is unusual)

Eminent Domain (hybrid between legislative + judicial land use regulation)

 Actual taking of property by a government actor for a particular purpose

 Where does the government get its power to take?
  Inherent part of the state police power (inherent part of the sovereign); does not derive from a constitution
 Constitution confirms that it exists
 Constitutional Constraints:
 5th Amendment: “nor shall private property be taken for public use without just compensation”
 14th Amendment: state or local government’s ability to exercise eminent domain
 Conditional Requirements: public use + just compensation
 Process (part legislative, part judicial:
 Usually begins with local / city / town council approving condemnation plan; can outsource the process of
developing the plan to a private 3rd party
 Usually, city negotiates with the private property owner (makes them a fair market value price for their property)
 If the property owner rejects that offer, then the condemnor brings condemnation hearings in court – then they
decide if the state is following by the requirements of eminent domain
 Valid Public Use:
 Private – Public transfer: yes
 Private – Private transfer for public use (common carrier): yes
 Private – Private transfer for public purpose: depends
 Curing urban-blight: yes, post-Kelo
 Breaking up a land oligopoly: valid
 Preventing urban-blight: yes, post-Kelo
 Enhancing the value of real estate: maybe – see Kelo
 Judicial Review:
 Rational basis review under federal Constitution
 Condemnation actions presumptively constitutional
 Condemnor need not prove that the taking will lead to the desired result
 Just Compensation:
 Fair market value of the property
 *Does not include things like loss aversion (emotional attachment), relocation cost, or administrative burdens (this is
under federal constitution – state constitutions might protect people more so)
 Kelo v. City of New London:
 Issues:
 What is a valid public use under the 5th Amendment?
▫ Before this case: spectrum of possibilities
▫ Obvious qualifications: private – public property
▫ Private – private transfer, but will allow the public to use the property
 Government takes property because it needs to build a railway system
▫ Private – private transfer that the public will not use, but will be cultivated in such a way that it
serves the public generally, even if they are not generally using it - allowed sometimes
▫ Private – private transfer for a non-public purpose -- NO
 What level of judicial scrutiny do courts give to eminent domain actions?
▫ Rational basis review

Zoning – Legislative Land Use Control; Nuisance Control Ex Ante

 Can have exclusory effects (even if neutral on face) on the basis of class + race; these effects might violate state constitutions
(Mt. Laurel Doctrine), but not the federal Constitution (no affirmative right to housing + neutral laws with disparate impact
generally don’t violate the Constitution); these effects might violate the FHA
 Creates different use zones (single family residential, apartments, commercial, agricultural, industrial); different height zones,
area zones; it is generally cumulative
 Based on a comprehensive plan passed by a local zoning commission
 Zoning laws, based on the plan, are passed by a local council
 A board of zoning appeals considers relief from zoning
 Constitutionality: Village of Euclid
 Issue:
 Are zoning laws constitutional?
 Lochnerism: 1905 – 1937
 Upshot of Economic Substantive Due Process Argument
  Preserves property rights
 Good for the general welfare
 Prevent creeping industrialism
 Protect children
 Holding:
 Idea of zoning is constitutional (zoning laws are a constitutional exercise of the state’s power)
 Even though zoning is reasonable on its face, there is still a possibility that particular applications that are
unconstitutional