PROPERTY I

Adverse Possession
Definition
Means of acquiring title to real or personal property by one who is not the legal owner, but who takes and maintains possession for
the statutory period during which time the real owner does nothing to prevent the running of the statute.
• Cause of action “accrues” (statue begins to run) when the AP enters (OCEAN begins).
• Title “ripens” when AP has met the elements for the requisite number of years (OCEAN has been presented for 21 years).
• AP now has “title” to the land but would be advised to bring an action to “quiet title” to have a court order recognizing the
AP’s title that can be recorded. Now the true owner no longer has ownership.
o A title is a construct—it’s the law’s conclusion of ownership. A deed is a piece of paper.
Why does the law recognize this concept?
• Long ago, there were no public land records. The way people proved they owned land was by actually possessing it.
• Encourages people to improve
• Punishes people who don’t take their property rights seriously.
• Useful for settling boundary disputes
• Protecting lengthy reliance.

Elements of Adverse Possession

1. Open & Notorious: the occupant must do so in a way that is apparent to the true owner. It is not required that the true
owner actually know of the occupancy, but he/she must be able to know.
2. Continuous: There is no automatic amount of time that would interrupt continuity, but many courts will differ on whether
they think a brief interruption breaks continuity.
a. Howard v. Kunto AND Ray v. Beacon Hudson Mountain Corp ruled that It is not necessary that the occupant should
be on the premises continuously. If the land is occupied during the period of time during the year it is capable of
use, there is sufficient continuity. Courts will simply ask, “how continuously would a true owner be there?”
3. Exclusive— Adverse possession requires the possessor to treat others who try to join in occupancy as either trespassers (by
taking action to evict or other actions to remove them) or by clear evidence that the joint occupancy was with permission,
but always demonstrating that the adverse possessor was treating the property as his/her own property. If an AP is
involuntarily ousted by a later one, time “pauses” until the earlier person decides to abandon it (clock resets to 0) or ousts
the later possessor (clock resumes where it left off).
4. Actual: An adverse possessor is expected to engage in conduct that is appropriate to the type of land being possessed.
Sometimes courts will go back and forth on what activities are sufficient for actual possession, but if you can make a case
for it, that is probably hostile enough.
5. Non-permissive (“hostile”)—means that a trespasser’s actions must manifest to a reasonable observer the belief that the
property is his.
a. Courts are divided on objective vs. subjective test for hostility. Objective means the reasonable third party would
believe the AP was the owner. Subjective would mean looking into what the AP is thinking or believes—are they
hostile toward the true owner? Subjective suggests that if the AP KNOWS they don’t have a claim, then it’s not
validly hostile.

Statutory Period
Common Law:
 • 21 years for real property
• 10 additional years for disabilities (insane, prison, minor)
• 4 years for personal property
State laws:
• Vary, have been shortened by most statutes and/or common law. 5 to 60 years.
• May depend on type of land and/or possession (such as “color of title”)
• Some states require that the AP pay taxes on the land they’re adversely possessing in order to make a claim. This really
ruins their claim because, odds are, the true owner is paying taxes because the tax collector will be basing their collection
on the true boundaries.

Converse Adverse Possession

Where one claims the entire tract subject to an instrument describing the land (color of title), but only actually occupies a portion of
it. This is where maybe there is some sort of mistake—people think they have a valid title but really they didn’t.
Color of title: a document that looks valid, but it’s not. An example would be a deed that was a forgery or has something
incorrect in describing the land.

Tacking
Allowed only where there is privity of estate between successive adverse possession.
If an AP allows his son to take over the land, for example, the clock continues to run because there is privity of estate
between them.

Disabilities
If the legal owner has a disability, the statute does not run until the disability is removed. The disability must be present at the time
the cause of action accrues/when the AP enters.
• Nothing the T.O. does with the title AFTER the AP moves onto the land will have an effect on the AP.
• Infancy, Insanity, Imprisonment.
• There is no tacking of disabilities.
• Disabilities of subsequent owners don’t count.
• We only count disabilities that existed when the AP began. If a disability arises after the AP got there, it’s irrelevant.
• Where there are two disabilities, the longest one applies.
• At common law, there is an additional ten years after removal of the disability, and those claiming through the disabled
party generally are entitled to the benefit of the 10 years.
• Each state has its own age of majority, but for class discussions, use 18 as the age of majority.
Example: The T.O. is a 16 year old who is insane and imprisoned. An AP moves on the land. When does the clock
start? He turns 18, nothing. At age 20 his mental illness is cured. Finally at 22, he is released from prison. This is
when the clock starts running. We add 10 years, but if 21 years from the original entry date gives us a longer
timespan, then we go with that.

Future Interests
Adverse possession does not run against the owner of a future interest whose interest is in existence at the time the cause of action
accrues.
The period does not begin to run until they take possession, and the benefit for any disability in the future interest holder is
determined at the time the future interest becomes a present possessory interest.
Heirs don’t have protected future interests. They have only “hope.” (?)
Example: T.O. à to A for life, then B
A has a life estate and B has a future interest. Let’s say that AP enters after this has been established but while A is still
alive. The clock isn’t running during A’s lifetime because B, as a future interest holder, does not have the power to eject.
 The clock officially starts when B’s interest becomes possessory. THEN AP must remain for the full statute period regardless
of how long he’s already been there.

Landlord/Tenant
History of Landlord-Tenant Law
Common law foundations. Begins on 10/14/1066 with the Battle of Hastings. This was the beginning of the feudal system in
England.
Initially treated landlord tenant transactions as conveyance rather than a contract. This made sense for feudal transfers.
Evolved in the 1960s to more contract principles, which gave tenants more protections.
Why did this evolve?
1. Move from rural to urban society (this time period marked the end of the family farm).
2. Changed expectations (consumer protection movement, anti-war, civil rights, greater prosperity). We started
emphasizing protecting people who hadn't always had power.
3. Baby boomers started becoming tenants.

Lease vs. License

Lease License
• Possessory interest in the land • Use interest. NOT possessory.
• Occupiers prefer • Landowners would prefer
• Usually longer term • Usually briefer in duration
• Space is specifically designated for occupant • Space is not specifically designated and can
and not likely to change. be changed by the landowner
• Possession is exclusive. • Possession is not exclusive—landowner can
• Occupant usually pays. If the payment is walk in anytime.
called “rent,” that is even more indicative of • Occupant oftentimes doesn’t pay.
lease. • Easier to terminate a license—you don’t have
• Must be notice of eviction. You have to go to to go to court.
court to file for eviction, which gives tenant a
chance to explain their circumstances.
The difference affects presumptions and burdens of removing tenants.
1. Property taxes may affect one and not the other.
2. Notice periods to terminate/evict are different.
3. Tort liability for injuries to the occupier may differ.
4. There are fewer remedies available to plaintiff it a license is breached.

Interference with Actual Physical Possession

Does the tenant have a case against the landlord?

Time of Interference Landlord Wrongdoer One with Paramount Title

Commencement of Term Yes Yes (majority) Yes

During Term Yes No Yes

Commencement of Lease—obligations regarding L’s duty to deliver possession.
American rule: only entitled to legal possession.
English rule (majority rule in the US): entitled to actual possession. Here, the landlord has the obligation to get the holdover tenants
out so that the new tenants can come in.
If L physically occupies land of T, there could be an actual eviction. Generally, T could stop paying rent (unless occupancy was de
minimis). On that basis, L could not apportion on L’s wrongdoing.
 Types of Common Law Tenancies
1. Tenancy for Years: lasts for specific predetermined period of time (even if it’s less than a year). Has a definite maximum
length and automatically ends when time expires; notice of termination isn’t required unless they terminate early.
2. Periodic Tenancy: continues for successive periods until terminated by either party. Automatically renewed. Death of L or T
doesn’t extinguish. Could be week to week, month to month, year to year. Payment of periodic rent. Termination requires
notice of one full period (year to year requires 6 months).
3. Tenancy at Will: no designated duration and can be terminated at any time. Created by express agreement or from
circumstances. Terminated at will of either party, death, or transfer. No notice at in common law but today packing time is
usually required.
4. Tenancy at Sufferance: holdover, almost a trespasser.

*Tenancy for one year or more must be in writing because of Statute of Frauds. Part performance takes it out of the statute.

Types of Evictions
1. Actual: landlord physically deprives a tenant of use of the leased land.
a. Could be partial actual eviction where there is no access to part of the space.
b. Tenant can remain in space that is still available.
c. Tenant can remain rent free and may also recover damages.
2. Constructive: tenant’s use and enjoyment of the land is so substantially diminished that the tenant is forced to abandon the
land.
a. Conditions are very bad.
b. Tenant has to move out.
c. The main remedy is termination, but tenant might receive damages.

Common Law vs. The Law Today

Common Law Law Today
• L/T conveyance • L/T contract. Bundle of rights
• Agrarian society • Urban Society
• Landlord had few duties (quiet enjoyment, disclosure • More duties (habitability, repairs, housing codes)
of latent defects, repair for short team uses and • Dependent covenant—tenant might not have to pay
common areas). rent of landlord doesn’t fulfill their duties.
• Tenant’s obligation to pay rent was completely • Recognition of unequal bargaining power.
separate from landlord’s obligation to maintain • Some terms are unconscionable (rent acceleration,
property. The only dependent covenant under CL was waiver of IWH, etc.)
right to quiet enjoyment.
• Total freedom to contract

Common Law used “caveat emptor” principle, which means buyer beware. “the principle that the buyer alone is responsible for
checking the quality and suitability of goods before a purchase is made.”
Below are a few things Landlord did have an obligation to tenant for under common law. These were independent covenants,
meaning that if landlord breached, the tenant might be entitled to something but would still have to pay rent.
1) Furnished/short term (lodger): L is liable for any defects. The idea is that for short-term, furnished dwellings, the T does
not have the inclination nor obligation to make repairs.
2) Latent defects (landlords had a duty to disclose things that weren’t obvious even upon the tenant’s inspection)*This is
just a duty to warn, not necessarily a duty to repair.
3) Covenant to repair by Landlord (only breach of contract damages)*--what is this
4) Public use*--L who leases public space who should know that, due to the nature of the lease and the defect, T won’t
repair. This means L is liable for any injury that occurs on site.
 a. Think short term leases. If someone leases an auditorium for a week, for example.
5) Negligent Repair – if they fix something but do it negligently, they need to do better. They are liable for any tort damages
the tenant amasses
6) Common areas—landlord must keep common areas (lobbies, stairwells, etc.) safe.
7) Unfinished premises
*exceptions based on negligence

The Implied Covenant of Quiet Enjoyment – Present even in Common Law

• Deals with landlord’s acts or their allowance of other tenants to act in ways that interfere with use and enjoyment.
• From the Professor Dale video: 1): L has title 2) L will remove prior tenants 3) L will not deprive T of any leased space 4) L
will not unreasonably interfere with T’s possession.
• Even in common law, landlord had a duty not to interfere with quiet enjoyment.
• A substantial interference with use and enjoyment by L or someone under L’s control could be the basis for constructive
eviction.
• Depending on the facts, this might justify T’s termination of lease (based on dependent covenants) or a suit for damages or
rent abatement.

Barbri Video on Quiet Enjoyment:

Applies to both residential and commercial leases. ICQE is a fundamental implied promise that every landlord makes. It has the
landlord implicitly promise to provide the tenant with quiet use and enjoyment of premises. What does that mean? It means,
typically, that the landlord can breach this fundamental promise in 1 of 2 ways:
1. Breach by actual, wrongful eviction. If a landlord wrongly excludes the tenant for possessing the whole or part of the
premises, the L has breached the covenant. L has interfered with or disrupted the tenant’s right to quiet use and
enjoyment.
2. Breach by constructive eviction. When L commits a constructive eviction, the L is not saying “get out.” The L’s actions or
patterns of remiss give the tenant no choice but to vacate. This breaches the L’s provide covenant to provide T with quiet
enjoyment. To plead a constructive eviction, there must be a substantial interference due to L’s actions or failures to act.
Substantial interference could be a permanent problem but it’s often a chronic problem (for example, flooding every time it
rains. Not permanent but chronic). It’s something that is fundamentally incompatible with T’s quiet use and enjoyment of
premises. The tenant must notify L of the problem, and L must fail to act meaningfully. The notice is presented in good faith
to the landlord who can’t fix a problem they don’t know about. T must also vacate within a reasonable time after L fails to
fix the problem. This can bring hardship to T as they might not have anywhere else to go, but it is an element nonetheless.
The tenant cannot plead constructive eviction while still remaining in possession of the premises; the idea is that, if it’s so
bad that T can’t live there, then T should not still be living there.
Is the L responsible for the bothersome conduct of other tenants? Generally no, but L must not permit a nuisance on site. The
landlord must also control common areas.

The Implied Warranty of Habitability

• Which buildings are affected? Primarily residential (multiunit or single family) and it has been extended to commercial and
agricultural.
• Health and safety are key—some violations must affect health and safety substantially for certain remedies to apply.
• Factors to consider: code provision, nature & seriousness, impact on health and safety, length of time the problem has
existed, age of building, and the amount of rent.
• Some jurisdictions extend L’s liability for criminal conduct. If the landlord knows about criminal activity going on, the
landlord is on the hook for whatever happens with the criminal tenant.
• Landlord defenses: tenant caused the condition or a waiver (usually unconscionable).

Barbri Video on IWH

Every landlord must give this. This only applies to the residential domain (although we did learn about courts extending an implied
warranty of suitability). The key here is habitability, meaning human dwelling. This is essential to the cause of dignified dwelling, and
it is non-waivable. If L tries to extract a waiver of IWH, it’s not enforceable as it is against public policy. The premises must be fit for
basic human living. This is a modest standard. It does not mean luxury. We simply expect the essentials for human dwelling. With
that as the baseline standard, the standard tends to be elaborated upon by housing code and judicial precedent in that area. Things
like no heat in the winter, no plumbing, no running water…those are infirmities fundamentally incompatible with human dwelling.

Quiet Enjoyment—Constructive Eviction Habitability--IWH

Type of Conduct Substantial interference Usually only health & safety
(a barking dog, for example) (frayed/exposed wiring, for example)
Party causing damage Landlord or other tenants with landlord’s Maybe Landlord, Maybe other conditions
permission
Degree Serious/substantial Serious/substantial
Type of Property Residential and commercial Residential only—usually multiunit, could be
single family. Sometimes extended to commercial.
Notice Landlord must be given notice. Landlord must be given notice
Remedies Tenant must move out. Many options (see Tenant Remedies below)

Factors relating to Materiality—it must be a material problem for the tenant to get a remedy.
Code provision
Nature and seriousness
Impact on heath and safety
Length of time problem has existed—landlord needs reasonable time to get something done. If you tell your landlord something and
it’s not fixed within an hour, it’s not a material problem.
Age of the building—older buildings have more material concerns.
Cost of rent.

Exceptions: tenant caused the condition OR tenant waived right to IWH, but that’s unconscionable.

Tenant Remedies under IWH

1) Termination – constructive eviction moving out.
2) Rescission (allows recovery of lost value)
3) Repair & deduct (rent application) often limited by statute in amount.
4) Specific performance – difficult to enforce. You won’t see this a lot.
5) Rent abatement/reduction (see formulas)-means rent reduction. Since what you have is worth less, you pay less.
6) Rent withholding (rent strike). It’s not advisable. If you withhold rent, you want to do so in escrow.
7) Receivership (very unusual)
8) Making L live on premises
9) Damages (including tort damages) think medical expenses, lost wages.

Rent Abatement
Means rent reduction. Since what you have is worth less, you pay less.
Understand how it evolved from common law to today.
Types of Rent Abatement:
1. Fair rental value – T only pays fair rental value
2. Difference in value – Difference in value as warranted & fair rental value during occupancy
3. Proportional value – rent abated in proportion of rent

Landlord’s motives in selecting or removing tenants

At Common Law, L could terminate the lease for any reason, no matter how arbitrary. Today there are two major exceptions, both
based on public policy: retaliatory eviction and discrimination on basis of protected class.
Retaliatory Eviction: landlord cannot punish tenant for doing certain things. Tenants are allowed to:
1. Do something with housing codes (some jurisdictions) – what does this mean?
2. Complain about basic habitability things (some jurisdictions).
3. Be members in a tenant organization.
Commercial tenants aren’t usually protected in doing the above things.
If a tenant does one of the things above, the landlord CANNOT do one of the following in retaliation:
1. Summary eviction or other termination
2. Unconscionable rent increase
3. Decrease in services
4. Alteration of lease terms
5. Threaten to evict

Assignments
Transfer of all T’s rights (duration). A Transfer of less than T’s physical space for the duration would be a partial assignment.
• Only liability is privity of estate, not privity of contract.
• If there was privity of contract, then the transferee would be obligated on the lease terms. Unless the assignee
expressly agreed, there is no express assumption of obligations of the original lease.
• When there is privity of estate only, as we have with assignments, then the transferee is obligated only on
covenants that touch and concern the land only while they have possessory interest.
§ Rent is a covenant that touches and concerns the land.
§ Not committing waste runs with the land.
• A subsequent assignment will terminate those obligations going forward (with the exception of the state of Texas).

Subleases
Transfer of less than T’s rights
• Generally, a sublessee will NOT be in either privity of estate or privity of contract. It is possible (but unlikely) that a
subtenant COULD expressly assume the obligations of the lease, and then would have privity of contract.
o Agreeing to pay the same amount in rent as the original tenant is NOT an express assumption of the original lease.
• The right of the sublessee to retain possession is derived from the rights of the transferor (the original tenant). That means
that if the landlord can evict the original tenant for nonpayment of rent (where not justified), the sublessee will also be
evicted. The original tenant still has privity of contract and privity of estate with the landlord because they have an interest
in the land.

Assignment vs. Sublease

Duration of Transfer
Relationship with original landlord
Who does assignee pay rent to?
The agreement names the transfer
as an A or S…
If the transferor retains right of re-
entry…
Assignment Sublease
For the full remainder For any time less than the remainder
Privity of estate regarding all that No privity of contract nor estate unless
touches/concerns the land while possessed subleasee expressly assumes contract…
Usually directly to landlord. Usually to sublettor
That reflects intent, which is helpful, but not dispositive.
Varies by jurisdiction.
 If the transferor transfers all rights Varies by jurisdiction
under different terms (like different
rent, etc.)…

• While the terms or language used in the transfer itself (e.g., assign or sublet) are relevant to intent, they are not dispositive.
An ambiguity about a lease term will be construed most strongly against the drafter, which is often the landlord.
• The original tenant always remains in privity of contract and obligated for all covenants in the original lease. That tenant
cannot be relieved of that obligation by assignment or sublet.

Tenant’s Right to Assign or Sublease

If the lease is silent – implied right to assign/sublet
• Where profits from sales are a factor in rent, often a non-assignment expectation is implied.
If the lease prohibits completely – jurisdictions vary, but most probably allow
• Some view this as a restraint on alienation
• Professor Dale says that leases that prohibit transfers are generally upheld if they are promissory (tenant promises not to
transfer without approval) or forfeiture restraints (if tenant transfers without approval, landlord can re-enter & terminate).
If the lease requires permission – must L be reasonable?
• Jurisdictions split on whether L may withhold consent unreasonably
• Where reasonableness is required -- factors re: reasonableness may include:
Financial responsibility
Suitability as a T
Legality of proposed use
Need to alter premises
Nature of occupancy

Disability and Property Law

Important Federal Statutes
1. Civil Rights Act of 1866, 42 U.S.C. §1982
a. Prohibits discrimination on the basis of race in sale or rental of property. Extends to both residential and
commercial property. Exhaustion of administrative remedies not required.
2. Fair Housing Act of 1968, 42 U.S.C. §3601 et seq.
a. Prohibits discrimination in housing.
b. Title VIII of the Civil Rights Act of 1968
c. Prohibits discrimination on the basis of race, color, religion, national origin.
d. Added in 1974: prohibits discrimination based on sex.
e. Added in 1988: prohibits discrimination based on handicap and family status.
i. For handicap (“disability” is the word we use today, but it’s still handicap in the act.”)
1. L must allow reasonable modifications to premises (at T’s expense)
2. Certain accessibility standards are required for new multiunit premises (4+) built.
ii. To enforce this requires a referral to state or local agency. Must exhaust administrative remedies.
3. Rehabilitation Act of 1973, Section 504, 29 U.S.C. §794
a. Prohibits recipients of federal financial assistance from discriminating on the basis of disability.
b. Government housing most likely to be affected.
4. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
a. Prohibits discrimination on the basis of disability (and associational status).
b. Title I: employment
 c. Title II: public services—programs of state or local governments (includes zoning according to the majority of
courts)
d. Title III: public accommodations (private providers of 12 categories). Could include hotels, but not other housing.
Would apply to commercial premises like shopping centers, movie theaters, restaurants, etc.
e. Relevant to Property in 3 ways:
i. Nondiscrimination in commercial rental.
ii. Potential liability of commercial landlord for tenant’s discrimination.
iii. Potential shared liability with respect to architectural barriers.

Definition of Disability
Individual must have an impairment that substantially limits one or more major life activities. Must have a record of such
impairment or be regarded as having such an impairment.
Individual must be otherwise qualified… able to carry out the essential requirements of the program with or without reasonable
accommodations.
Individuals who pose a direct threat may not be otherwise qualified. Determination must be individualized and not based on myths
or stereotypes.
• Types of Activities Involved with Disability Discrimination
o Discrimination
o Reasonable accommodations
o Design standards (architectural barrier issues)—existing facilities, new construction, alterations/renovations,
negligent design causing tort issues.

Waste
Rights & Responsibilities
There is an obligation of the life tenant or the tenant for years to return the premises to the future interest holder (FIH) in the same
condition (excepting ordinary wear and tear).
Life Tenant: the FIH does not know when they will get the land because they don’t know when the life tenant will die.
Responsible for normal maintenance repairs (interest on mortgage, taxes, etc.)
Tenant for Years: a bit easier because the landlord knows when they are getting the land back; the lease has a set time
frame. Normally not responsible for normal maintenance expenses unless otherwise specified. Landlords often have the
ability to re-enter and take the property back if waste has been committed.

What are a FIH’s rights during tenancy when waste occurs?

• May depend on whether FIH has a “contingent” estate. ß What does this mean?
• May depend on facts (concerns about restoration, assurance of return to original condition, etc.)

Types of Waste
1. Permissive Waste: failure to preserve and protect by ordinary care (negligence). Historically, there was no liability as long
as the property was “weather tight.” Today, people are expected to make reasonable repairs.
2. Commissive Waste: damage to property that permanently reduces value. Intentional. Sometimes called voluntary waste.
3. Ameliorative Waste: significant change to property that increases its value. Generally NOT permitted.
a. Increased value may also increase costs to FIH (insurance, taxes, maintenance)
b. Sentimental value
c. Historical value
 d. Pabst Brewing is an unusual case—there, ameliorative waste was allowed because the land surrounding the
property had been so drastically changed through no fault of the tenant, and the property was therefore useless as
it was.
4. Financial Waste: failure to pay taxes
*there are other types, but these are the only ones we care about.

Improvements & Fixtures—are they considered waste?

Improvement: changes to the property that improve the value. Sometimes they reach the level of ameliorative waste.
Fixtures: a type of “permanent” improvement. Under Common Law, anything “attached” was a fixture.
• Whether fixtures are allowed depends on the lease. Residential examples include drapes, picture hooks, ramps, lowering
counters, and adding bookshelves. Commercial examples include paving a parking lot, adding retail space, etc.
• Whether or not something is a fixture depends on how permanent it is. If you can take the fixture away that returns the
property to its original condition, then it’s probably not a fixture.
• You usually CANNOT make a FIH pay for fixtures because they did not ask for them.

Depletion of the Estate

• Depletions would include taking things like timber, oil, gas, minerals, etc.
• Under Common Law, tenant had a right to reasonable estovers (like timber or fuel).
• Today, whether you can use the land a certain way depends on how it has been used and what the FIH intends for it.
o Open Mine Doctrine: if there is already an open mine, you can mine the land. But you can’t just create a mine
yourself because that might change the nature of the land and what it can be used for in the future.

Remedies for Waste

1. Injunction
a. An order prohibiting continuation of activity.
2. Damages
a. Reduction in value
b. Cost to restore
3. Forfeiture
a. Equity abhors forfeiture

Concurrent Estates
Simultaneous ownership by two or more persons of a particular estate in land. Each co-owner has a propriety interest in the whole.
The types we focus on are joint tenancies, tenancies in common, and tenancies in the entirety.
Concurrent ownership sounds odd since people can’t physically occupy the exact same space at the exact same time, but legally,
they can do just that.

Joint Tenancy
Right of survivorship is key. When one tenant dies, survivor continues to retain an undivided interest in the property not subject to
the interests of the deceased co-tenant. In JTRS, the wills of the co-tenants who die first don’t matter at all. Only the will of the last
survivor matters. Survivors hold free of decedent’s interest. Any joint tenant who dies before the last survivor doesn’t get to pass
anything on to their heirs.
Four Unities (PITT)
1. Possession: identical right to possession and enjoyment
 2. Interest: same quantum both as to duration and share. All parties must have equal shares (2 people, for example, would be
50/50. 4 people would be 25/25/25/25).
3. Time: interests must have been created at the same time.
a. If you already had an interest and wanted to add a concurrent tenant, it would have to be a T/C because you
wouldn’t be gaining interest at the same time. This is why people would convey to a straw man and then have the
straw man convey to all new concurrent tenants.
4. Title: interest must have been created in the same instrument.
Creation
Under common law, it was presumed to be a JTRS if all unities were met. Created by deed or will, never by descent.
Today, tenancy in common is presumed if JTRS is not specified.
Severance—only applies to JTRS
Any disturbance of the unities will sever, at which point it will become a T/C.
1) Conveyance—only as to the portion conveyed.
a. A life estate probably isn’t a big enough conveyance to sever JTRS.
b. Conveying a deed to someone WOULD sever it. A JT does not need the others’ permission to do this.
i. If a JTRS conveys his or her interest to an outsider, that interest becomes a T/C because it breaks unity of
time and title.
Example: Harry & Wilma are JTRS Wilma decides to give a deed to Walter, conveying her ½ interest to
Walter. Walter’s interest is automatically converted to T/C, and Harry’s interest is now a T/C since his is
the only other interest in existence. It doesn’t matter that Harry didn’t consent or was even aware of it.
Example: A, B, C are JTRS. If A conveys his interest to X, then X’s interest is T/C but B and C are still JTRS. B
& C are viewed as a unit by X. If B dies, his interest will go to C. C now has 2/3 interest. No interest went to
X because he’s a T/C, so X still ha 1/3 interest.
2) Mortgage—in jurisdictions where mortgage is viewed as massing title.
a. Title theory: mortgage transfers the mortgagor’s title to the mortgagee. It’s like a deed. Hutchins case. WILL cause
severance.
b. Lien theory: mortgage only gives the mortgagee a lien (a right to have the property sold to pay the debt), so the
mortgage would not sever the JTRS. Harms case. Will NOT cause severance.
3) Lease—when one of the JT leases the property to someone else. Note that if all JTWROS decide to lease a property, nothing
happens to their JTWROS; the only time it could be severed is if less than all leased it. What happens varies by jurisdiction,
and the options are below:
a. In some jurisdictions, a lease by less than all the JTWROS causes a severance.
b. In some jurisdictions, a lease by less than all the JTWROS, the JTWROS is only temporarily severed. If the lease ends
before the JT dies, then the full JTWROS is restored. If the lessor dies before the lease ends, then the severance
becomes permanent and the lease remains in effect.
c. In some jurisdictions, a lease by less than all the JTWROS does nothing at all to the JTWROS. If the lessor dies
before the lease is up, then his share disappears and the lease disappears with it.
4) Contract for sale—varies by jurisdiction. This means that someone buys one co-tenant’s share of a land. If it’s just one
person selling the land, then the JTRS is severed and buyer becomes T/C with co-tenant. If all co-tenants agree to sale
together, then it’s not severed.
5) Sale at execution—will cause severance
6) Mutual agreement: they can all agree to just become T/C.

Tenancy in Common
Default. Less strict rules. No right of survivorship. Each owner has an undivided interest, but they don’t have to be equal shares
(could be ¼ and ¾ for example). Passes by succession directly to heirs and devisees. Order of death does not matter. Subject to
claims of each tenant’s creditors.
Freely alienable by inter vivos (transfer among living people) and testamentary transfer (through a will).
Only One Unity
1. Possession: identical right to possession and enjoyment
Creation
Conveyance to two or more persons (by deed, will, operator of law) which fails to specify the form of concurrent ownership creates
a tenancy in common today.

Tenancy by the Entirety

Estate held by husband and wife as a unity with right of survivorship. This is similar to JTRS but marriage is an added unity. Neither
tenant could obtain partition nor could he/she act to defeat the RS of co-tenant. Neither party could sever the tenancy by
involuntary separation, and neither party could sever the tenancy by unilateral conveyance.
Under Common Law, the husband had the exclusive right to rents and profits.
Today, 22/24 states have TE (several have community property), but almost all states with TE have modified it to take away
husband’s right to control.
Creation
Under Common Law, grant to husband and wife resulted in creation of TE even if it was not specified.
Today, the presumption varies by jurisdiction.
Termination
1) Death of either spouse
2) Divorce (leaves parties as T/C)
3) Mutual agreement
a. Quimbee video suggested that one party can convey their interest to someone else and RS is still present. Does
this mean they would have to mutually agree for one of them to convey their interest?
4) Execution proceeding in favor of a joint credit of husband and wife – what does this mean?

Rights & Obligations of Co-tenants

1. Possession
a. Each co-tenant has a right to possess all the property.
b. No one has the right to exclusive possession of any part.
2. Accountability: one tenant made money, so they should share it with other tenants.
a. Statute of Anne (1705) applies in most jurisdictions, and this provides that a tenant must account to co-tenants for
rents and profits for depleting the use of resources received beyond just portion.
i. With co-tenants, each one is entitled to half the value of everything. If A and B are co-tenants and A
decides to cut down trees for timber on exactly half the property, the fact that they have cut down trees
on half the property isn’t sufficient. Technically, A and B own half of every individual tree, so regardless of
how many trees A cuts down, they are responsible for sharing the revenue from the timber equally with B
b. Basis of accounting: based on proportionate share assigned.
c. Sole possession: where one co-tenant is in possession without ouster or agreement between parties, there is no
right of accounting. In other words, he doesn’t owe any money for simply living there because a co-tenant is
allowed to possess property. If there’s an ouster, that’s different.
d. If a co-tenant leases the premises, they would need to share money received from renting, but they are only liable
for net rent after deducting operating expenses. They have to split the actual rent, not the fair rental value.
Prevailing rule: absent ouster, the possessing co-tenant is not accountable to the absent co-tenant for rental value
of sole occupancy but would have to account for rents received form a third party.
Ouster: generally, co-tenant must manifest/communicate intent to oust the other co-tenant. Without
that, the tenant in possession usually does not have to pay rental value. If tenant in possession seeks costs
for maintaining property, some courts would require cotenant not in possession to pay rental value, but
only as an offset. SEE BELOW.
 e. Depletion: one tenant is probably accountable for net profits derived beyond portion for a use of the land held in
common which reduces the value of the land.
3. Contribution: one tenant spent money, so other cotenants should reimburse them.
a. Expenses—where one co-tenant pays more than his share of real estate taxes, interest on mortgages (join in by
both co-tenants) or public assessments.
b. Repairs—necessary, so the other co-tenants must contribute.
c. Improvements—probably liable only as an offset to accountability allowances OR as a value added in a partition
determination (co-tenant who made improvements without agreement by other co-tenant may be able to get
some value for those improvements where the premises are physically divided. The weight of authority is that
where an action that physically affects the property was not necessary, no contribution is required. There is
modern authority to the contrary, however. This will affect repairs and improvements made to the property.
These expenses may be computed as part of the value added if the parties seek or if there is a court ordered
partition (physical separation of the property).”
A co-tenant can charge the others for repairs/maintenance but not improvements based on the idea that the
former is necessary but the latter is not. Only maintaining the property’s value is required, not improving it.
Improvements typically aren’t recoverable, but they could be in a final accounting through a partition sale.
If the improvement increases the fair market value and the property is sold, then the person who made the
improvement gets that reimbursed off the top and then will receive half of the remaining value.
d. Offset example: A and B are co-tenants, and A is in possession. A spends $5,000 on taxes and repairs, so she sues B
for contribution of half ($2,500.). The property has fair rental value of $4,000/year. B is allowed to offset B’s share
of fair rental value ($2,000) against A’s claim for contribution. If A never asked for that money/sued for that
money, then B could never have requested half of the fair rental value. B is only liable for $500 here. Sometimes,
the offset might end up being MORE, which means the possessing co-tenant would be able to collect anything at
all.

4. Partition: having the court divide up the property so that they become neighbors instead of co-tenants. This is done
voluntarily and creates distinct physical tracts of land. Ends co-tenancy. If all agree, the cotenants can partition by
exchanging deeds with one another. If not everyone agrees, any individual may seek a judicial partition at any time.
a. Partition in kind: boundary lines on the property and giving each a piece. This is the preferred method if possible.
b. Partition by sale: sheriff sales property and divides the proceeds among co-tenants based on their respective
shares. This is the method that usually has to be done for commercial properties or income producing properties.
Either kind of partition could end with a party requesting a final accounting. This is where all the parties will bring claim on
money each spent, etc.
Example: A and B are co-tenants and property sells for $100,000. A had spent $5,000 on repairs but had made
$8,000 in rent. This is now being split with B. So A’s ½ share of $50,000 gets $2,500 added to it as reimbursement
for repairs but $4,000 taken away to split the rent money with B. So A ends up with $48,500 and B ends up with
$51,500.
More About Ousters
A co-tenant in possession won’t allow other co-tenants on the property. A cotenant who has committed an ouster can never recover
contribution from the ousted tenants.
1. Possessor notifies the other tenants he won’t allow them on the property.
2. Possessor notifies the other tenants that he does not recognize their rights (I don’t consider you to have claim to this land).
 3. Possessor purports to convey a full 100% fee simple to a third party, who enters into possession, and the other cotenants
have notice.
Ouster does not happen without notice to the other cotenants!!
Outcomes of Ouster
1. Possessor is an AP. If they remain on the property long enough, they can obtain sole title to the land.
2. Possessor can no longer claim contribution for property expenditures such as repairs, taxes, and insurance. That is cut off
once they commit an ouster.
3. Possessor becomes liable to other cotenants for their share of the net Fair Rental Value of the property.
a. Normally, they are not liable for personal possession. Once they commit an ouster, they DO become liable for the
net fair rental value.
4. Other co-tenants can sue the possessor to be restored to the possession themselves. They cannot eject the possessor
because they are all entitled to the property. They can only sue to be allowed back to the property themselves.

Essay Rules
Adverse Possession
Adverse possession is a means of acquiring title to land that is owned by another party by meeting all of the
elements for the statutory period of time in the applicable jurisdiction. It is based on a statute of limitations that
provides that one should not rest on rights and establishing proof. While it arguably rewards a wrongdoer (even
one acting in bad faith in most jurisdictions), it balances different policies and settled ownership. Adverse
possession protects lengthy reliance, it’s useful for settling boundary disputes, and it encourages people to
improve land. Further, it is thought to punish people who don’t take their property rights seriously.
The statute begins to run (or the cause of action accrues) when the adverse possessor first enters against a party
with standing to take action. Someone with a disability at the time of original entry or who has a future interest
does not have standing {NOTE: I would not necessarily expect this to be raised on this essay because there is
no issue regarding such standing}. In other words, someone with a disability or a future interest is not expected
to eject an adverse possessor, so that cause of action does not accrue until the disability is removed (10 extra
years are added before title can ripen) and until future interest holder actually takes possession.
The elements for adverse possession are 1) Open (Notorious), 2) Continuous, 3) Exclusive, 4) Actual, 5)
Nonpermissive (Hostile/Adverse). All of these elements must be met for the statutory period of time, which in
this jurisdiction is stated as 21 years.
The occupancy of subsequent parties who are in privity with each other allows the time of one to be tacked onto
the previous possession. The true owner’s change in ownership does not start the statute running again, and the
time of possession continues to run against subsequent owners.

Assignment vs. Sublease

At common law a lease was considered to be a conveyance rather than a contract, but that has evolved under
modern American law.
Difference between an assignment and sublet
An assignment is a transfer of all of the tenant’s rights from the point of view of duration. A sublet is a transfer
of less than what the tenant has.
Jurisdictions (state courts and/or state legislatures) have varied viewpoints about whether certain terms indicate
that the transfer of a tenant’s interest is an assignment or a sublet. These variations include 1) retaining right of
re-entry, 2) transfer of all T’s rights (duration) but under different terms (different rental amount, for
example).
While the terms or language used in the transfer itself (e.g., assign or sublet) are relevant to intent, they are not
dispositive. An ambiguity about a lease term will be construed most strongly against the drafter, which is often
the landlord.
Consequences of assignment and sublets regarding covenants by the tenant in the original lease
The original tenant always remains in privity of contract and obligated for all covenants in the original lease.
That tenant cannot be relieved of that obligation by assignment or sublet.
Where there is an assignment, the transferee (assignee) falls into privity of estate with the landlord by virtue of
the possessory right. The consequences of that are that the assignee is obligated for promises (covenants) that
run with the land. The requirements for a covenant to run with the land are that 1) the parties must have
privity, 2) the parties must intend for the covenant to run, and the 3) covenant must touch and concern the
land. A covenant of a personal nature will not run with the land.
A subsequent assignment will terminate those obligations going forward (with the exception of the state of
Texas).
A covenant to pay rent is considered to be a covenant that touches and concerns the land. An assignee would be
obligated to pay the rent from the time of the assignment until the end of the lease term or until the assignee
engages in a subsequent assignment.
If a transfer is a sublet, the transferee is not in privity of estate with the landlord and is not obligated to the
landlord on the original covenants. The right of the sublessee to retain possession, however, is derived from the
rights of the transferor (the original tenant). That means that if the landlord can evict the original tenant for
nonpayment of rent (where not justified), the sublessee will also be evicted.
In a situation where the transferee (either an assignee or sublessee) expressly assumes the obligations of the
original tenant to the landlord, that party would fall into privity of contract. That is extremely unlikely in a
sublet situation. An agreement to pay a certain rent to the original tenant would not be an express assumption
of the covenants to the landlord.
Additional information (not required)
There are no facts regarding whether there is a right to assign or sublet, so that is not addressed in this essay.
Generally, if a lease is silent, it is implied that it can be assigned or sublet.
 Case Summaries
Adverse Possession
Tioga Coal: subjective hostility is not required. We don’t need to know the AP’s state of mind to find that AP has been met. The
objective standard for hostility is the majority view.
Halpern: this court did look to the subjective intent and said that someone with a bad faith claim is just a squatter basically.
ITT Rayonier: the man with the houseboat did not exclude others from the property. He did not treat the property as a true owner
would.
Marengo Cave: the AP of the cave was not open and notorious because the true owner had no means of knowing that the space
beneath the surface was being possessed, so there was not true AP.
Howard v. Kunto: seasonal possession does not affect continuity; you can adversely possess something during the season it is
intended to be used in and that counts. Also, tacking is allowed if there is privity.
Ray v. Beacon: seasonal possession does not affect continuity. Also, we are inclined to reward those who make good use of/take
care of land. It was significant that the Rays continuously maintained the land, ejected trespassers, etc.

Lease vs. License

Beckett: type of occupation was important in determining whether the tenant was wrongfully evicted or not. A license can be
terminated without a court order, but a lease cannot. Here, they called it a lease and there were characteristics suggesting a lease,
so it was a lease even though the property owner tried to say it was a license.
Wenner: type of occupation was important in determining the income tax. Court found that it was a license because the space was
not clearly defined and the retailers used the plaintiff’s logo, which I guess suggested they did not have the autonomy of a lessor?

Actual Eviction
Smith: L built a wall that encroached on T’s premises. T was allowed to stop paying rent because even depriving him of a portion of
the space he was entitled to was enough to amount to an actual eviction. L argued that their interference wasn’t extensive, but the
extent of the interference is only relevant if the intrusion is not physical; in this case, it is physical, so it doesn’t matter if the fence
didn't greatly affect McEnany's use of the land.
Echo Consulting: The court basically found that there was not actual eviction just because T couldn’t use one door to get in the
building; they could still use another door, so they weren’t deprived of any space.
As far as constructive eviction goes—the trial court says the construction noise wasn’t substantial enough to amount to constructive
eviction and the higher court remanded it since that was a question of fact.

Landlord’s Duties
Marini: This case opened the door to IWH. Since the lease did not have an express covenant for L to make repairs, it seemed like L
didn’t have to do anything about the broken toilet. But this court decided that L SHOULD be responsible for habitability issues.
Here, T withheld rent but did not move out. So presumably she couldn’t sue under QE because she did not vacate.
Knight: emphasizes that under IWH, T does not have to move out to get remedies because that often isn’t best for T. Factors to
consider in this case are also 1) getting what you pay for (cost of rent materiality factor) and 2) notice (L had been aware of these
problems for a while) and 3) T cannot waive their right to IWH.
Wade: court said that space didn’t have to be perfect, but it had to be habitable, and major sewage problems that violated housing
codes was not habitable. This case also discusses the various remedies available.
Davidow v. Inwood: unique extension of IWH to implied warranty of suitability for a commercial lease. This is rare, but in this case
the property was in remarkably bad shape.

Landlord’s Discretion in Choosing Tenants

Kramarsky: L cannot discriminate against protected classes, but type of employment is not a protected class, so L can choose to not
rent to T based on that. L can use their own discretion as long as it doesn’t discriminate against a protected class.
Marina Point: Apartment decided to not allow kids, and court found that this went against the Unruh act. It didn’t matter that
children were not a protected class within Unruh—the idea was that you can’t deny someone who hasn’t done anything wrong just
because they are a member of a certain class. So L would have grounds to take action against destructive/problematic children but
could not deny all children on principle.
United States v. Starrett: denying apartments to people based on race was discrimination even though they were trying to maintain
a ratio. It was discrimination because, regardless of their intentions, it disproportionately affected minorities in a negative way.

Tenant Transfers
A.D. Juilliard & Co.: When an assignee transfers to another, the assignee is off the hook. Only the OT (privity of contract) and the
party in possession (privity of estate) are liable to L for rent.
Abernathy: a subleasee right to possess terminated when the OT didn’t pay rent. It’s unfortunate because the subleasee paid rent
like he was supposed to, but the OT just didn’t pay that rent to L. Since sublease doesn’t have any sort of privity with L, it doesn’t
matter that they didn’t do anything wrong.
Hinky Dinky: This court held that L must be reasonable in granting consent.
United States v. Epstein: This court held that L could arbitrarily withhold consent.

Waste
Pabst: This is a rare exception to ameliorative waste because the area surrounding the property had changed so much through no
fault of the tenant that the land was without value as it was.
Anne Barnett Zauner: If a life tenant fails to maintain the premises, they might have to pay damages to the FIH before their life
estate is over.
McIntyre: failure to pay taxes is financial waste. This is important because not paying taxes could jeopardize the FIH’s interest. But
this was sad because she was trying her best and in poor health.

Types of Concurrent Estates

Adamson: the married couple were TE, so they had ½ interest and the MIL had a ½ interest. The husband’s interest was awarded to
wife in the divorce, so wife walked away with the full ½ interest herself.
Margarite: confusing language “tenants in common with right of survivorship.” We will treat the married couple a TE unit, but this is
T/C with the other guy.
Kurpiel: “jointly and not as tenants in common” was express enough for the court to find JTWROS.
S.S. Weeks: “jointly” was not enough to be JTWROS.

Relations Between Co-tenants

Gilmor: rancher ousted a co-tenant by exclusively possessing the ranch in a way that prevented the co-tenant from also using it. So
yes, there was a ouster. Also said that co-tenat owed the one in possession for necessary repairs.
Barrow: there must be constructive notice for there to be an ouster.

Severance of JTWROS
Harms: this jurisdiction found that mortgage did not sever JTWROS. The deceased’s brother got everything and the mortgage the
deceased took out disappeared with his death.
Hutchinson: a unilateral pledge on one co-tenant’s part severed the JTWROS.
Minonk State Bank: if a party conveys the property to themselves, it severs the JTWROS.
 Property II
Nuisance
How is Nuisance different from Trespass?
Trespass requires the wrongful, physical invasion of another’s land, whether intentional or unintentional. Nuisance is non-physical.

Types of Privileged Invasions

1. Permissive: granted by owner/possessor (tenancies, easements, profits, licenses, entries by mortgagors, landlords)
2. Privileged by law: public officers (police, safety inspectors) and private areas that have become public areas (shopping
centers) where entry is for free speech purpose
These entries are temporary and for a limited purpose.

Nuisance
A nonphysical invasion—interference with use and enjoyment.
Exception: some invasions that are technically physical (gases, odors, dust, chemicals, noise waives, rodents, vermin,
termites, vibration) fall under the category of nuisance.
Elements of public nuisance (from Quimbee)
1. the existence of a public right
2. a substantial and unreasonable interference with that right by the defendant
3. proximate cause
4. injury

Unreasonable activity that substantially interferes with use and enjoyment of land
1. Reasonableness Factors—focuses more on defendant.
a. Is the activity customary?
b. Can it be carried on with less disturbance?
c. Value to party engaging in activity
d. Value to society
e. When activity was begun (coming to a nuisance)
f. When activity occurs—time of day (children playing, construction sounds)
g. Is it permitted by zoning or other land regulation?
2. Substantial Factors: measured from the perspective of an ordinary person with ordinary sensibilities—focuses more on
plaintiff.
a. Financial loss to complaining party
b. Physical damage to complaining party’s land
c. Persons suffering physical harm or mental anguish
d. Cost or difficulty of complaining party to remedy
e. Duration of harm
*Aesthetic considerations alone are not enough.
Whether land use is reasonable is a mixed question of fact and law. Certain activities are by law a nuisance, by state or common law.
“A nuisance may be merely a right thing in the wrong place—like a pig in the parlor instead of the barnyard” -Justice Sutherland.
From Supplement but makes sense in class notes:
Nuisance per se: something that’s immediately going to be a nuisance because it violates a statute. i.e. if a neighbor violates a
zoning regulation, someone can sue them for nuisance and have a good case even if the harm isn’t all that substantial.
Nuisance immunity: someone cannot sue for nuisance solely on the basis of aesthetic preferences.

Public v. Private
• Public nuisance: unreasonable interference with right common to the general public, including activities that harm health,
safety, morals, or comfort of the community. Collective and common to everyone.
o Generally, there is no standing for a private individual to bring an action for public nuisance. However, there is a
trend toward allowing some private action for public nuisance in all 50 states. There is a policy debate about
whether it’s better for the government to enforce.
• Private nuisance: wrongful interference with use and enjoyment of land of another.
o Plaintiff here must have interest in real property.

Remedies
Old rule: if something was a substantial interference, the party who was there first could likely get an injunction.
TODAY, courts are more likely to balance interests if the thing causing the nuisance is something we need.
• Case where injunction was ordered but could be removed by paying permanent damages to complaining party.
Old rule: if you moved toward a nuisance, you can’t complain about it.
TODAY, courts are again more willing to balance interests.
• Case where nuisance-causing party was forced to cease operations or relocate, but the complaining party has to pay the
costs of closing/relocating since they moved toward it.
We should take into account the relative social value of each activity. We should have an interest in protecting solar energy, for
example, because there is good in that for everyone.

Things to Address in Nuisance Essay

• Definition of nuisance
• Distinction between private and public nuisance
• Listing of factors for unreasonable and substantial
• Application of those factors to the facts in the case
• Standard for plaintiff injury – ordinary person with ordinary sensibilities
• Trend toward balancing rights
• Moving to a nuisance

Express Easements
A nonpossessory interest in land. A right to use land by one other than the possessor. One who holds an easement has the right to
exercise a limited degree of control over land that is owned by someone else. Written instrument that complies with the Statute of
Frauds. Usually by express grant or reservation.
• Easement appurtenant: any easement created for use in connection with specific land (need not be adjacent) possessed by
the owner of the easement.
o The owner of the easement owns the dominant estate (benefited land).
o The owner of the estate burdened by the easement owns the servient estate.
• Easement in gross: an easement not directly benefiting specific land, but benefiting a specific party. The benefitting party
doesn’t even have to HAVE their own land to have an easement in gross.
o Owner of burdened land has the servient tenement.
o An example is utility companies. Billboards. The right to swim in another’s pond.
 • Affirmative Easement: authorizes the doing of an act (e.g. use of driveway). Most are this.
• Negative easement: restricts activities that may be conducted on servient estate (e.g. not planting tall trees or high
buildings to obstruct view—sometimes called servitudes). This are basically restrictive covenants, so see that section.
o Light, air, support, stream of water from an artificial flow, scenic view (minority).
o These can ONLY be created expressly. There are no implicit rights to these things.

How are easements different from other use interests?

• Profits: use here includes the removal of something (mineral, oil, timber).
o If there are minerals beneath an easement you have, you probably can’t get to them because that’s probably
beyond the scope of the easement.
• License: revocable at will by servient tenement (usually for cause?). Does not relate to land.
o Movie theater, mall, personal privileges.
o A license for a particular period of time is usually called an easement for years.
• Servitudes and restrictive covenants: usually from formal agreements.

Factors for Determining Fee or Easement

1. Amount of consideration—the more money, the more consistent it is with fee simple (how much though?)
2. Description detail—less detail is more consistent with easement.
3. Extent of limitation on use—if the location can be changed, that is more like an easement.
4. Type of interest best serving interest of parties
5. Peculiarities of the wording
a. Right of way, for example, usually means easement.
6. Who pays taxes—which party paying taxes is consistent with which type of interest?
7. How property has been treated by both parties
8. Use of “except” usually means a fee. Use of “reserve” usually means an easement.

Rules of Construction
• Intention of parties (grantor in particular) is paramount.
o Look to the entire instrument and language therein without undue emphasis on any particular part or provision of
the document.
§ Grant construed in favor of the grantee.
§ Reservation construed strictly against the grantor because the grantor here is presumed to know the land
well and know what exactly they need the land for.
• Fee simple is presumed unless it appears from grant that a lesser state was intended.

Interpretation & Extent

In determining extent of rights and obligations, consider:
1. Language of instrument
2. In the absence of fix width, length, and location, look to intentions and reasonable expectations.
3. In determining intent, look to language in light of surrounding circumstances.
Factors in determining extent of easement:
1. Whether it’s granted or reserved
2. Amount of consideration
3. Prior use of land may suggest continuation of that use
4. Subsequent conduct of parties (was use tolerated or accepted?)
Changes of location
• Majority rule: neither party may unilaterally change.
 • Minority (3rd Restatement): servient tenement holder may change location as long as dominant estate holder has use that is
substantially similar.
Increase in Intensity
• Unless express language is contrary, normal increase is allowed.
• Does not allow a change in kind of use, only in intensity.
Use for Other Land
• Owner of appurtenant estate cannot use or permit use of easement for other land.
Repairs and Improvements
• Easement owner has a duty to make necessary repairs, but not interfere with use of the estate of the servient tenement.
• Has a right to make improvements necessary to accomplish the purpose of the easement but cannot unreasonably increase
burden on servient estate.
• Servient tenant has no obligation to repair or maintain; only an obligation not to interfere with use and enjoyment.
General Rule: when easement is created by grant or reservation and the instrument does not limit use, the easement may be used
for any purpose to which the dominant estate may then or in the future reasonably be devoted. Does not allow for different uses
which imposes additional burdens.

Succession of Appurtenant Easements

Express terms control.
• If a dominant estate is transferred, generally there is automatic succession.
o Sometimes terms provide otherwise. Non-assignability may sometimes be viewed as impermissible restraint on
alienation.
• If a servient estate is transferred, the burden generally runs if there is notice and intent.
o Notice: recorded or actual through inspection, etc. It will NOT transfer if the purchaser is a bona fide purchaser
without notice.
o Intent: original parties (presumed in most cases).
• If the dominant estate is subdivided, then the easement can be used for each new subdivision of the original estate.

Succession of Easements in Gross

• Commercial easements (primarily economic benefit): rebuttable presumption of assignability
• Noncommercial easements (more personal in nature)
o Old view: non-assignable.
o New view: rebuttable presumption of assignability
Today, it does not matter whether easement in gross are commercial or non-commercial whereas, historically, easements in gross
had to be commercial to be transferred.

Termination & Extinguishment of Express Easements (Also Apples to Non-Express Easements)

Termination
1. Express terms: period of time or specific event
a. "I grant this easement to A for life." - life easement
b. "I grant this easement to A so long as it continues to be used as a water land" - easement in fee simple
determinable
c. "I grant this easement to A for 10 years." - leasehold easement
2. Release: formal written instrument
3. Abandonment: unequivocal conduct (non-use alone is never enough).
a. Requires long period of non-use AND evidence that holder no longer intends to use it.
4. Misuse (overuse)
Extinguishment
1. Transfer: some jurisdictions extinguish when servient estate is transferred and purchaser has no notice of the easement (if
not recorded).
2. Adverse Possession: incompatible conduct for requisite period.
3. Merger of servient and dominant estates: subsequent severance does not revive in most states.
4. Estoppel: servient owner reasonably relies on actions of dominant owner
5. Necessity ends
6. Third parties?
7. Eminent domain: if the dominant estate holder still wants the easement even if the government seizes the servient estate,
then they will need to talk to the government about creating a new easement.
8. Mortgage foreclosure
9. Tax sales

Non-express Easements
Implication
Implied from Prior Use
• Must have been apparent and continuous
• Reasonably necessary for enjoyment of dominant estate
• Scope is based on prior use, and additional use is based on foreseeable changes.
• Courts are more inclined to terminate implied easements than express easements.
• Justified by public policy favoring utilization of land.
• Courts try to give effect to intent of parties.
Four Requirements:
1. Common ownership followed by separation of title.
2. There is a prior use that was apparent and continuous and that existed before the dominant and servient estate were
separated. In other words, the use must have existed before the separation.
3. Continued use must have been permanently intended.
a. Permanent alteration to the land (driveway, underground sewage pipe, etc.)
b. Continuously used—not just sporadically used.
4. Use must be reasonably necessary for full beneficial use.
Factors applied in some jurisdictions
• Terms of conveyance
• Consideration
• Extent of necessity
• Reciprocal benefits
• Prior use and subsequent actions
• Notice of prior use
• Reasonable expectations and fairness
• Ability to avoid confusion
• Public policy – utilization: might be more willing to find an easement for the party trying to utilize land.
• Size, shape and location of land
• Whether claimant is conveyor or conveyee
Scope is based on:
1. Prior use
 2. What is reasonably foreseeable regarding increased usage. Change in degree of use may be allowed, but generally not a
change in the type of use.

Necessity
Requirements
1. Original unity of ownership of dominant and servient estates
2. Necessity. Courts vary on how they view necessity.
a. Absolute necessity: landlocked parcel of land
b. Reasonable necessity: sometimes allowed depending on the circumstances

Prescription
Similar to Adverse Possession.
Requires the requisite statute of limitations period.
- Open
- Continuous
- Adverse
- Claim of right (?)
Not necessarily exclusive, although this may be a factor in whether the use was open.
If use is “permitted’ by the owner of the dominant estate, it is not “adverse”—challenging fact issue.
Note that use is limited to JUST the use that created the prescription, so it will be difficult—if not impossible—for the prescriptive
easement holder to adjust his use of the easement to meet changing needs.

Zoning & Land Use

Government authority to regulate private property is based on police power to control health, safety, welfare, and morals--
pursuant to Constitution (5th and 14th amendment).
Zoning is the government’s right to enact statutes to reasonably control land use.
• Euclid v. Ambler (1926, S. Ct.)-- Beginning of zoning power analysis. Supreme Court recognized zoning laws as a
constitutional exercise of police power for public welfare – health, safety & welfare (and morals). Ordinance was locally
established & was not arbitrary & capricious—rather, it was thoughtfully planned with health, safety, and morals in mind.
Governments have leeway with zoning, but it may be limited. The U.S. Constitution poses 2 limitations on zoning:
1. Zoning laws that are clearly arbitrary or unreasonable may violate Due Process & Equal Protection Clauses.
2. Laws that destroy a property’s value or restrict use in certain ways might trigger the Fifth Amendment’s Takings Clause. (see
below).
A zoning will be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting
health, safety, morals, or general welfare OR that the classification amounts to a taking without compensation.
Division of areas for different purposes.

4 issues in Zoning
1. Rezoning might be allowed if the area has changed or if there was a mistake in initial zoning.
2. Nonconforming use: existing use of land that is now allowed by new zoning law. Government may not immediately
terminate a non-conforming use but may limit it or terminate it over time. If someone has a use of land that becomes
prohibited by zoning, it might just be that they can’t expand their use or convert it to another non-conforming use, or the
government might give them time to end it.
3. Vested use: when owner is preparing to use land in a way that suddenly gets changed due to rezoning. If owner has spent
money because of good faith reliance on the law, they may acquire a vested right to non-conforming use. Few fixed legal
standards here: case by case.
 4. Variances: Official permission to deviate from zoning law. Area variances (physical) and use variances. Usually granted to
permit undue hardship. Variances must be consistent with public interest.

Zoning Pros Zoning Cons

Functional, adaptive, and evolving system that serves a
mediating role between people and places.
Could add value to land because it grants assurance that
neighbors will not engage in activities that could decrease your
property values.
Could be biased toward development.
Could promote race discrimination
Could impede affordable housing (if zoning prohibits multi-unit
dwellings or requires that houses be very large, etc.)

Relationship Between Zoning & Nuisance

Zoning laws are often justified on the basis that they suppress nuisances. In the law of takings, a regulation that greatly reduces
property values is not likely to be considered an unconstitutional taking if the owner’s proposed use has nuisance-like
characteristics.

Takings: Physical, Regulatory, & Exactions

Takings jurisprudence balances public interest in land control against private interest in determining what one wants to do with
his/her own land.
Authority is based on the police power to control health, safety, welfare, and morals—pursuant to the 5th and 14th amendments.
Private property cannot be TAKEN for PUBLIC USE without JUST COMPENSATION.
1. Has the state taken plaintiff’s property?
a. Per Se Takings
i. Physical Takings
ii. Eminent Domain—note that the federal government has a history of winning these cases.
b. Regulatory taking
i. All economic value destroyed.
ii. Restriction on use without complete loss of economic value
iii. Exactions
2. Is there a public purpose?
a. Does it require that land be used BY the public, or is it sufficient that there will be a public PURPOSE?
3. Is there just compensation?
a. Payment for market value usually; not owner’s personal value.
i. Value of land taken OR
ii. Difference in value of original parcel and value of the parcel after taking.
b. First English-- if regulation constitutes taking, compensation is required even if the impact is for a short
period of time.

Takings
What constitutes a taking?
Always a Taking Sometimes a Taking Not a taking
• Permanent physical occupation • Temporary physical occupation • Mandate that public places
(even minor/small) • Regulation of use (rent control, allow free speech
slight diminution in value)
 Per Se Takings: Physical & Eminent Domain
Eminent Domain
Authority is based on the police power to control health, safety, welfare, and morals—pursuant to the Constitution (5th and 14th
amendment)
Physical Takings
When CHARACTER is a PERMANENT, PHYSICAL occupation of property, even with minimal economic impact or important public
benefit, it is a TAKING.
• Loretto v. Teleprompter Manhattan CATV Corp. (1982)—attachment of cable TV wires and box was a taking.

Regulatory Takings
Occurs if a law restricts property rights in certain ways. Some things are regulations but not regulatory takings per se. The
government can make reasonable time, place, and manner restrictions. The general rule is that, while property may be regulated
to a certain extent, it will be recognized if a taking if the regulation goes too far. Two types of regulatory takings:
1. All economic value destroyed by regulation:
a. Pennsylvania Coal v. Mahon (1922) – State regulation prohibiting mining under buildings. Regulatory activity can
become a taking when it goes too far. If the taking meets the public use test, they can take it, but they will need to
pay for it.
b. Lucas v. South Carolina: (1992)new law that barred building structures on property to protect the environment
totally eliminated economic value. Thus, this was a taking and plaintiff had to be paid. If a regulation deprives the
owner of all economic value, it is a taking unless the regulation is justified on the basis that it prevents the
owner from committing a nuisance.
2. Law that excessively of unforeseeably restricts property’s use without completely destroyed its value: Penn Central
Transportation v. City of New York (1987--Landmark designation. Ad hoc, factual inquiries:
a. character of government action: is there a legitimate public goal? Is it physical or regulatory?
b. interference with distinct investment-backed expectations: could the owner have reasonably anticipated the kinds
of restraints being imposed? Is this type of regulation common?
c. degree of diminution of value
Later cases have added these factors for consideration:
d. fair and just
e. reciprocity of benefit
Yee v. City of Escondido (1992) --Upheld rent control ordinance in mobile home park. No compelled physical occupation

Not a taking Taking

Note about Nuisance: if the landowner is committing a nuisance, then government action will not amount to ta taking because the
landowner did not have a right to do that thing in the first place.
 Example: Person A buys a beachfront lot surrounded by other houses and decides to make a landfill there. If the town
passes a law that says you cannot have landfills there, then that is NOT a taking because that would have bene a nuisance.

Exaction
Definition: Where owner of land must set aside a portion of land in exchange for permission to do something (rezone, get a building
permit, etc.). Commonly used process. Generally accepted.
Such laws ARE takings UNLESS there is an essential nexus and rough proportionality.
• Nollan v. California Coastal Commission (1987) – beachfront walkway case-- “essential nexus” test
o There must be an essential nexus between the purpose of exaction and purpose served by denying development
permit. Does the thing the landowner is being asked to actually accomplish the government’s objective?
• Dolan v. City of Tigard (1987) –hardware store & parking lot case-- “rough proportionality” test
o The surrender demanded is roughly proportional to the impact of the proposed development. Burden on
government authority.

Public Purpose
For there to be a public purpose, the public must use the taken property or somehow benefit from it.

Hawaii Housing Authority v. Midkiff (SCOTUS 1984)

• Upholds redistribution plan – large landowners required to sell land to state agency because it had been held by a small
number of landowners.
• Test is whether the legislature rationally could have believed that objective would be accomplished.
• Reliance on Berman v. Parker (S Ct 1954) – DC redevelopment

County of Wayne v. Hathcock (Supreme Court of Michigan 2004)

Taking property from small landowners to resell to private developers violates public use requirement of state constitution. –
overrules Poletown (1981) – which allowed GM plant in Detroit for revitalization
In Poletown, government took land through eminent domain and gave it to GM to get them to stay there, and then GM
didn’t stay. People were mad because taken land ended up serving NO public benefit. This is why Michigan now chooses to
be very strict in its public use requirements.
Standard applied in County of Wayne – only ONE needs to be satisfied
1. public necessity of EXTREME SORT – examples – railroads; airports
2. transferee remains ACCOUNTABLE
3. land selection based on PUBLIC CONCERN

Kelo v. City of New London (SCOTUS 2005) (5/4)

Upholding development plan in distressed municipality
Deference to state legislature.
Land doesn't have to be blighted--the economic distress is enough to justify the economic rejuvenation.

Discrimination, Exclusion, & Equal Protection

Constitutional Challenges
Requires showing of discriminatory intent.
Under the constitution, discriminatory impact doesn’t matter if there wasn’t clear intent behind it.
• Village of Arlington Heights v. Metropolitan Housing Development Corp: prioritized discriminatory intent over
discriminatory impact in analyzing violations of the 14th amendment. Factors to consider in analyzing discriminatory intent:
 o (1) the historical background predating the decision;
o (2) the specific sequence of events leading up to the challenged classification;
o (3) departures by the state actor from normal procedures;
o (4) substantive departures, particularly if the factors usually considered important by the decisionmaker strongly
point to a decision contrary to the one reached; and
o 5) the legislative or administrative history surrounding the adoption of the legislative classification.

• Cleburne (1985) sets out test used in constitutional discrimination cases. A rare example of finding something
unconstitutional on the basis of rational review, showing that a classification does not necessarily need to be suspect or
quasi-suspect to raise equal protection concerns.

Constitution

Strict Scrutiny Intermediate Scrutiny Rational Basis Review

Suspect Class--race, national
origin, alienage
Compelling state interest
(housing not compelling)
Result is usually invalidation of
conduct/activity
Quasi-suspect class (like gender)
Heightened scrutiny, but middle
tier.
Relaxed scrutiny, and result is
generally upholding
governmental action. Cleburne is
an exception since they
invalidated the denial of the
special use permit.

Statutory Challenges
Statutory provisions may focus more on discriminatory impact or effect.
• Civil Rights Act of 1866, 42 U.S.C. Section 1982 Prohibits discrimination on basis of race in sale or rental of property; Extends
to both residential and commercial property
• Fair Housing Act of 1968, 42 U.S.C. Section 3601 et seq.
o Prohibits discrimination in housing
o Title VIII of the Civil Rights Act of 1968
§ Prohibits discrimination on basis of race, color, religion, national origin
§ sex (added in 1974)
§ handicap and family status (added in 1988)