Professor Name, Class, Year Your Name

Table of Contents
Right to Exclude............................................................................................................................................................................ 2
Limits to Right to Exclude........................................................................................................................................................... 3
Limit – Common Law Duty to Serve the Public...................................................................................................................................3
Limit – Federal Public Accommodation Law........................................................................................................................................4
Limit – State Public Accommodation Statutes....................................................................................................................................4
Limit – Free Speech Right of Access....................................................................................................................................................5
Limit – Public Trust Doctrine...............................................................................................................................................................5
Limit – Right to Be Somewhere...........................................................................................................................................................6
Right to Use.................................................................................................................................................................................. 6
Water Rights.............................................................................................................................................................................. 6
Lateral and Subjacent Support................................................................................................................................................... 7
Nuisance.................................................................................................................................................................................... 7
Right to be Immune from Loss....................................................................................................................................................... 8
Adverse Possession.................................................................................................................................................................... 8
Prescriptive Easements.............................................................................................................................................................. 9
Regulatory Takings..................................................................................................................................................................... 9
Exactions................................................................................................................................................................................. 10
Judicial Takings........................................................................................................................................................................ 10
Eminent Domain Power........................................................................................................................................................... 11
Right to Transfer......................................................................................................................................................................... 11
Right to Transfer Particular Sticks – Law of Servitudes.............................................................................................................. 12
Right to Transfer – The Market for Housing.............................................................................................................................. 15
The Leasehold............................................................................................................................................................................. 16
Concurrent Ownership................................................................................................................................................................. 18
Marital Property......................................................................................................................................................................... 19
Modes of Acquiring Property....................................................................................................................................................... 19

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Professor Name, Class, Year Your Name

Place Statutes/Important Rules/Important Takeaways in Tables

Content goes here!

NOTE: Separate rule analysis from content of rule/statute with bolding.

HYPO
Suggested that hypos be placed in textboxes with contrasting colors so as to be easily distinguishable from rules, etc.

NOTE: I like to leave a line break at the bottom of my tables so as to not have the last line of text look like it’s underlined.

Pt 1 – The Largest Bundle of Sticks

Theories and Arguments:

1. Fairness/Rights
a. Promotes fairness of free and democratic society
b. Balancing (right to exclude v. right of access)
c. Protection of both parties
2. Social Utility
a. Consequences of the rule; promotes socially desirable outcomes and prevents negative outcomes
b. Utilitarian arg – maximizes utility and welfare of society
c. Economic efficiency
d. Equitable distribution of wealth
3. Formal Realizability
a. The way the rule is formulated; rigid vs. flexible
i. Hard rules v. flexible standards
b. Predictability
c. Whether the rule will be able to be followed
4. Institutional Competence
a. Who is best actor for legal change (courts v. leg)

Right to Exclude
The right to exclude is the most treasured stick in the bundle.

Trespass: unprivileged intentional physical invasion of a property owned or possessed by another

- Interest protected = exclusive possession of land
- Unprivileged = done w/o consent of owner
- Intentional = voluntary act or knowing conduct
- Invasion = personal entry or causing entry of a thing
- Trespass to chattels: version of trespass that applies to personal property (movables); requires showing actual harm

Trespass Doctrine:
- Fairness: right to exclude serves fundamental role in privacy, autonomy, associational freedom, and sovereignty
- Social utility: promotes productive use of land and efficient allocation of private land through market

Ample Right to Exclude Very Limited/No Right to

(Closed)
-------------------------------------
Property that has not been
opened to others by owner
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Exclude (Closed)
---------------------------------------- ---------------------------------------- ----------------------------------
Property that has been Property that has been Property that has developed
opened to particular opened to the public generally into full social system
Professor Name, Class, Year Your Name
(beachfront house) individuals (migrant farm (stores) (company town)
workers or tenants)

Trespass Remedies: damages (nominal for fact of entry) & injunction

- Nominal for invasion of owner’s interest in exclusive possession
- Compensatory if actual harm
- Punitive for malicious, spiteful trespass – purposes of punishment or deterrence
- Injunction if risk of repeated continuous trespass
- Permanent easement if warranted – trespasser gains right to continue use

Limits to Right to Exclude

Necessity:
- Four Conditions
1. Clear and imminent danger
2. Reasonable expectation that his or her action will abate the danger
3. No legal alternative to abate the danger
a. Must show made self aware of alternatives and were futile
b. Reasonable person
4. Legislature has not acted to preclude the defense
- COMMONWEALTH V. MAGADINI:
o Homeless man found lying in hallways or using bathrooms on cold days
o Couldn’t stay at shelter, only other shelter was out of town
o Four conditions
o Man does not need to rebut every conceivable alternative, just alternatives that likely would have been considered
by reasonable person in similar situations

Public Policy:
- Clear and significant public policy, sanctioned in federal and state legislation, may require a right of access for certain
individuals
- STATE V. SHACK:
o Blocked access for health services and legal advice to migrant farmworkers
o Ownership of real property does not include the right to bar access to govt services available to migrant workers
o Property rights serve human values - they are flexible, social, and can be limited

Consent:
- Entry onto property is privileged if permissive or consensual
o Implicit or explicit, revocable at will
- Consent obtained through fraud or misrepresentation may be given legal effect if there is no invasion of the specific interest
protected by law of trespass (exclusive possession)
- 2 classes of cases:
1. Restaurant critic – no violation of interest in exclusive possession, the owner of restaurant wants to have
customers
2. Meter-reader impersonator – violation of interest in exclusive possession, homeowner doesn’t want strangers
in house unless authorized service functions (consent is invalid)
- DESNICK V. ABC:
o Eye doctor gave permission to ABC for documentary that did not include undercover surveillance
o Consent obtained by misrepresentation can still be valid if there is no invasion of specific interest seeks to
protect
 Office was open to patients – no violation of confidentiality
o Dissent: exceeded scope of consent and active misrepresentation (not omission)

Limit – Common Law Duty to Serve the Public

Limit which often fills the gaps left by federal and state laws – fills gaps in businesses not mentioned or classes not protected.

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Majority Rule (Restrictive):
- Narrow common law duty to serve the public
o Innkeepers and common carriers have a duty to serve the public subject to reasonable regulations they may
impose to protect their legitimate business interests
o Other businesses have absolute right to exclude for any reason unless limited by a civil rights statute
o Justified because necessary goods, offered in monopoly, and often have a public dimension (license/interest)

Expansive Rule: Minority

- Public has a right to reasonable access to all businesses and facilities open to the public (USTON V. RESORTS INT’L)
o Duty not to act in arbitrary or discriminatory manner
o Imposed on all owners who open property to general public, but does not preclude exclusion of…
 Disruptors of regular operations
 Those who threaten premises

Limit – Federal Public Accommodation Law

Civil Rights Act of 1866
- Protects discrimination based on race
- Protects right to make and enforce contracts and right to acquire property
- Remedy = damages

Title II of CRA of 1964:

(a) Equal access – without discrimination of race, color, religion, or national origin
(b) Places – if operations affect commerce or state action
o Hotel, restaurant, entertainment places + places contained within the premises and holds itself to serve same
patrons
o Majority say it’s a closed list
- Does not apply to private clubs or other establishments not open to public
- Saving Clause: States can assert their own accommodation laws as long as NOT INCONSISTENT with this
- Remedy = injunctive relief only
- Prima facie case = (1) discrimination, (2) on basis of race, color, religion, or national origin, and (3) in a place of public
accommodation????

HYPOS------

Limit – State Public Accommodation Statutes

State laws are generally broader than federal – in list of places and in protected categories.

New Jersey’s LAD

- Covers wide range of establishments (e.g comfort station, clinic or hospital, gym)
- List is illustrative (shall include, but not be limited to…)
- Prohibits a wider range of types of discrimination (e.g sex, affectional or sexual orientation, familial status, age)
- Exemptions: any institution, bona fide club or place of accommodation, that is in its nature distinctly private
- DALE V. BOY SCOUTS OF AMERICA (NJ)
o Dale was member, rose to leadership, learned he was a member of LGBTQ+ community and revoked membership
o Rule for if membership orgs are public accommodations:
1. Place: term of convenience, broad
a. Not limited to a geographic location
2. Accommodation:
a. Public solicitation?
b. Close relationship with govt?
3. Distinctly private:
a. Test is selectivity (e.g size, admission requirements, etc)
- BOY SCOUTS V. DALE (Appeal to SCOTUS)
o NJ court said they were place of public accommodation

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o SCOTUS focuses on Boy Scouts right to expressive association not Dale’s right to access – they are private club
 Homosexuality is inconsistent with Boy Scout’s values
o Proportionality test: compelling state interest (no discrimination) vs. constitutional interest (1A)
 Must serve state interest
 Cannot be obtained through less invasive means

Are membership orgs a place of public accommodation?

- Under federal law (CRA 1964): NO (private clubs exempted)
- Under majority of state law: No
o CAN BE if place is a word of convenience

When is membership organization considered private establishment?

- Depends on selectivity

When do membership organizations have a right of freedom of association?

- Court distinguishes between membership orgs that are predominantly expressive (full constitutional protection), or
predominantly commercial (limited constitutional freedom)

HYPOS:

Limit – Free Speech Right of Access

Public property is clear – guarantees free speech and right of access
- Not necessarily protected on private property under constitution, but states can provide broader protections.
o Under constitution – no free speech right of access because private owner determines scope
o States like NJ have a test for normal use, nature of invitation, and purpose

LLOYD CORP LTD V. TANNER:

- Lloyd owns a mall where he strictly enforces a ban on distribution of handbills
o No public streets or sidewalks that cut into perimeter of mall
- Holding: no free speech right of access, private owner of property open to public can determine the scope of the
invitation to the public
o Distinguished from company town – no municipal functions in shopping center
o Distinguished from LOGAN VALLEY when free speech activity was related to mall’s operations and picketers could not
convey message elsewhere
 Here, war could be protested the same on the perimeter of the mall
- Dissent: mall is equivalent of business district, expressing selves in areas where other citizens can be found is only way

HUDGENS V. NLRB:
- Overruled officially Logan Valley because inconsistent with Lloyd
- Freedom of speech does not apply to private property just because open to public, Constitutional guarantee of free speech
is only against fed and state abridgement

NJ COALITION AGAINST THE WAR V. JMB REALTY:

- Group excluded from distributing leaflets in shopping centers
- Holding: NJ’s Constitution right of free speech extends to large shopping centers (state more expansive than fed)
- Rule: three prong test for free speech on private property
1. Normal use of property
2. Nature and extent of invitation to public
a. Here, all-inclusive, welcome people to mall for any reason or no reason
3. Purpose of expressional activity
a. Compatibility between expressive activity and use of property
b. Here, leafletting is not going to hurt business, mall can adopt certain rules (time, place, etc)

Limit – Public Trust Doctrine

Courts have used many methods to secure right of access:

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1. Public trust doctrine – certain resources that implicate important social interests are held by govt in trust for the public,
and public has right of access
2. Prescription – if public has used for long period of time, gain permanent right to use
3. Dedication – beach owner impliedly dedicates beach to public
4. Custom – longstanding, uninterrupted, reasonable use of beachfront by public for recreational purposes confers continuing
rights

Evolution:
- Initially navigable waters and tidal lands
- Then, municipally owned dry sand area of beach and navigable waters for recreation
- To, quasi-public dry sand areas (MATTHEWS)
- To, private owned dry sand areas (RALEIGH)

Right of access = (1) passage and (2) must have some intermittent enjoyment of dry sand area for rest and relaxation
- Reasonable access factors: Matthews
1. Location of the dray sand area in relation to foreshore
2. Extent and availability of publicly owned sand area
3. Nature and extent of public demand
4. Usage of upland sand land by owner
- More specifically for privately owned beach consider (RALEIGH)
1. No other public beach (availability)
2. Beach tourism is huge industry (demand)
3. A compatibility test between access and use of owner
a. Reasonable fee can be prescribed and still make profit on private club?
- HYPO TEST also on other outline right to roam

Limit – Right to Be Somewhere

MARTIN V. CITY OF BOISE:

- Homeless man in public place
- 8A prohibits states from punishing involuntary act if it is unavoidable consequence of a status
o As long as there is a greater number of homeless individuals than shelter spots

Right to Use
Owner’s right to use may be limited in certain situations because others have right to be free from harm, question is how best to
resolve conflicts regarding use of resources among neighbors.
- Compelling Interests:
o Fairness: but one’s right to use their property can be limited because it can affect other’s use of their land
o Social Utility: maximizing social welfare by encouraging people to use their land in most efficient way possible

Water Rights
Water rights consists largely of state common law, while some have special regulatory schemes for water.
Special characteristics involved…
- Physical characteristics: unpredictable, replenishable or scarce
- Competing interests: owner v. neighbor v. future generations/society

Diffuse Surface Water: water from rain, melting snow, marshes

- Natural Flow/Civil Law: landowner is subject to liability for any interference with the natural surface drainage pattern that
causes injury to another’s land – can only discharge surface water through natural drainage pathways, and can be liable for
resulting damage
- Reasonable Use: (middle ground) allows reasonable discharge of water but does not allow substantial harm to neighbor’s
land (ARMSTRONG)
o Determined by circumstances (e.g amount of harm, foreseeability, purpose)
o Formal realizability: flexible standard rather than rigid rules
o Fairness: circumstances taken into account make it more fair

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o Social Utility: cost benefit analysis allows for max benefit while minimizing consequences; greater good
- Common Enemy Rule: each landowner has an absolute right to fend off surface waters as she sees fit without being
required to take into account the consequences of other landowners

Surface Water:
1. Riparianism (location)
a. People whose land borders stream or lake have a right to reasonable use of water
i. Reasonableness determined by comparing proposed use with other users
b. Non-riparian owners generally have no right to use
2. Prior Appropriation (use)
a. First user prevails over a later user
b. Appropriated water right is established and maintained by use of water (or lose it) for beneficial use
i. Purpose and amount
c. Pro-development because encourages use for beneficial purpose

Ground Water:
1. Free Use (English rule): owner of surface is absolute owner of groundwater and may extract any amount for any purpose
(except malice or waste)
a. Even if draws water from underneath neighbor’s land
b. Least security from harm, most freedom of action
2. Reasonable Use (Majority rule): each owner whose property sits on same aquifer is entitled to a reasonable amount
a. Reasonable could relate to purpose, proportional, or means of extracting (negligence)
3. Correlative Rights: each owner is entitled to withdraw a specified amount of groundwater based on dividing up rights to
annual recharge to the aquifer from natural sources
4. Prior Appropriation: owner who first appropriated water for beneficial use acquires a right to the extent of her
appropriation
a. Most security from harm, least freedom of action

Lateral and Subjacent Support

A - surface C – surface with structure
A – minerals or water B – minerals or water

A owes duty of lateral support to C and B who have a right to lateral support.
B owes a duty of subjacent support to C who has a right to subjacent support.

Owners have the legal right to have their land laterally supported by their neighbor’s land & the neighbor who withdraws lateral
support for the owner’s land is strictly liable.
- Limited to land in its original state – no obligation to support additional weight
- Duty of support can be modified by contract or statute.

Structures:
- Traditional Rule: owner has no duty to support structures on neighboring land, no liability for harms to structures absent
negligence
- Modern Rule: owner is liable for harm to structures if the land in its natural condition was sufficient to support the
structure and the harm to the structure was caused by withdrawal of lateral support (consequential damages)
o Negligent liability for structure damage if natural land would not have supported the structure
 Non-negligent = notice, precautions, alternative methods (reasonable not burdensome)
o Runs with land
- E.g. retaining walls –
o Duty to maintain retaining wall in sufficiently strong condition to support neighbor’s land in natural condition
o If wall is stronger than necessary and supports land and house, no duty to continue to provide this level of support
but liability if negligently remove

Nuisance
Nuisance is the substantial and unreasonable interference with use and enjoyment of land
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- Different from trespass in that trespass protects right of exclusive possession and direct invasion of tangible object
- Test:
o Substantial – physically offensive to extent that makes uncomfortable & to reasonable, ordinary person (not
sensitive)
o Unreasonable – balance harm done against benefit
 Location, useful enterprise, which came first, reduce by alternative means?
- Damages v. injunction
No Remedy Injunction Damages to P Purchased Injunction
(injunction for P + damages
for D)
P: No right P: right to be free from P: forced sale of right to be P: forced right to be free from
nuisance free from nuisance nuisnace
D: right to continue activity D: No right to continue
activity

Light and Air:

In US common law, owner has no legal right to unobstructed light and air across the neighbor’s land (no “air and lights” doctrine)
- Unless… express easement, state statute, or zoning restriction
- PRAH V. MARETTI recognized owner may have claim of nuisance for obstruction of light and air

Right to be Immune from Loss

Immunity Rights are limited when an owner allows others to possess their property for a sufficiently long time
- Adverse possession (acquires full bundle)
- Prescriptive easement (acquires only one stick)

An owner’s property may be taken by the government.

- Regulatory
- Exactions
- Judicial
- Eminent Domain

Adverse Possession
Elements:
1. Actual possession
a. No fixed standard, but usually maintained the property or made improvements, etc
2. Open and notorious
a. Visible and open to reasonably diligent observer that true owner might see rights are being invaded
b. Owner on notice
3. Exclusive
a. Exclusive dominion and control
b. Must not share possession with record owner (occasional trespassers doesn’t rule out exclusivity)
4. Continuous
a. Required land use to be uninterrupted for statutory period as average owner of land would use it
b. Tacking – ability to add on years from previous owners; only allowed under privity (grantor/grantee relationship
between successive possessors)
5. Hostile/adverse
a. State of Mind of Owner: Did record owner give permission? What is state of mind of adverse possessor?
i. If gave permission, no claim.
b. State of Mind of Claimant:
i. Objective standard (majority) asks if if possessor acted toward land as if owned it
1. Argument for: allows property to go to those who value it most, predictable test
ii. Subjective approach (minority) – subjectively believes claim of right over land
1. Good faith – reasonable, innocent mistake of fact in thinking they were true owners
a. Argument for:
i. Fairness: don’t reward wrongdoers
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ii. Social utility: encourage market transactions, negotiate and pay
iii. Personal property has more value and stick
2. Bad faith – intent to dispossess
a. Argument for: want those who value it most to possess
6. Claim of title
***all elements assessed on basis of average owner of that type of land
***scope must be determined with certainty (maybe in description of title or actual use)

Color of Title – when a writing intends to transfer title but either because of procedural mistake or because transferor did not have
title to begin with, it fails to do so…
- Defective deed operates within adverse possession
o If satisfies all elements, court will award title

Adverse Possession requires clear and convincing evidence.

Public property cannot be adversely possessed.

Justifications for Adverse Possession:

- Fairness: protection of expectations by longstanding possessor
- Efficiency: efficient allocation of valued resources, prevents valuable resources from being left idle

HYPOS::::::::::

Prescriptive Easements
Claimant acquires right to continue using land (1 stick in bundle)
- Interest claimed: non-fee interest, fixed by use through which it was created
- No prescriptive rights in a negative easement – no actual use and hence no notice and no oppo to prevent use.
o Affirmative easement – right to engage in particular use
o Negative easement – right to limit or block particular use
- Cannot be granted if would deprive owner of essentially all rights in property

Elements:
1. Use
a. Actual physical land use
2. Open and Notorious
a. Reasonably diligent owner would be on notice
3. Continuous
a. Claimant made use of claimed easement whenever desired to
b. Continuous ≠ constant
4. Hostile/adverse
a. Non-permissive
i. Different from AP in that silence doesn’t always mean non-permissive (maybe they’re just polite)
5. For statutory period
****difference from adverse possession = NO EXCLUSIVITY
*** still assessed based on typical owner of that type of land

Relative Hardship Doctrine: encroaching improver

- Determine injunction or not with cost benefit
o Must be innocent mistake
- Ejected tenant that has made improvements to property (with knowledge of landlord and without objection) owner
required to compensate

Regulatory Takings
When analyzing takings for exam – start with if per se (2 kinds) then run through ad hoc.

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Regulation exercised in accordance with the state’s police power so significantly interferes with an owner’s property rights that it
demands compensation.
- Even if purchased land after regulation passed has a claim to challenge the regulation.
- AD HOC TEST always, sometimes can argue per se

Ad Hoc Test: (PENN CENTRAL)

1. Character of governmental action (public benefit)
a. Legitimately limits property use to prevent harm to the public or to promote average reciprocity of advantage
i. ARA = balancing test between private affairs (singular burdened) and value to public interest
1. Unfairly singles out specific owners to bear burden?
b. Unfairly strips core property rights without adequate justification?
2. Economic impact (diminution in value)
a. Parcel as whole
b. Parcel as segment
3. Interference with reasonable investment backed expectations
a. Interference with present and primary use
b. Could regulation have been anticipated such that reliance against was unreasonable?

Per Se Takings:
- Some regulations so severely infringed that courts refused to do ad hoc and simply considered it per se taking
o Has shifted from narrow exceptions that are per se – to permanent physical invasions are per se – to Cedar Point
- Three Rules:
o Permanent Physical Invasion
 Permanent physical invasion is taking regardless of public interest served, size of invasion, or diminution
of value
 CEDAR POINT adds it can be permanent or temporary
 Limits:
o Anti-discrimination laws (HEART OF ATL MOTEL)
o Justified by public necessity
o Invasion is by tenant initially invited onto premises
o Deprivation of all Economically Viable Use: (LUCAS)
 Deprives of all economically viable use is taking regardless of interest served
 EXCEPT when not newly legislated and inherent in state’s background principles of property and
nuisance law
o Principles = nuisance, common law, statutes and regulations, public trust? Water rights?
 Does NOT apply to temporary takings because no complete elimination of value (TAHOE) – if temporary
use Ad Hoc Penn Central
 Unknown parcel definition – what is denominator? Segment or whole?
o Virtual Abrogation of a Core Property Right
 A regulation that results in a virtual abrogation of a core property right is a taking regardless of public
interest served
Exactions
When a condition is put on obtaining a permit – if condition is invalid -> exaction and uncompensated taking
- Unconstitutional conditions doctrine
- Invalid if infringes on property interest
- Wants to prevent coercion in instances of disparate bargaining positions
- Specific context of land use permits
o Denials of permits OR
o Monetary exactions

Nollan and Dolan Test: limited scope - initiated when govt places condition on permit that outside of contexts of permit would be a
taking
- Essential nexus
o Close relation between condition and remedying negative impact of proposed development

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 E.g. granting easement to beach to make bungalow taller – no nexus because not essentially related to
blockage of view, other conditions could have been used)
- Rough proportionality
o Reasonable – rough proportionality between demands of govt and impact on proposed development
 Nature and extent

Judicial Takings

Judicial Takings Due Process

- Protects owner from having their property taken for a - Protects owners from arbitrary or irrational treatment
public use without just compensation by government
- Intentional taking, loss is calculated - The loss for the owner is the casual, unintentional
- Remedy: rescind the holding or pay just comp consequence of change in law
- Remedy: rescind holding

Problems with Judicial Takings:

- Just comp? court has no purse
- Undermine federalism and states’ authority to have own property laws
- Flood federal courts with property cases disguised as takings
- BUT IT IS POSSIBLE ANYWAYS

Eminent Domain Power

Public Use + Just Compensation

Public Use:
- Any legitimate public purpose (Kelo) (CURRENT)
o Economic development is legitimate public purpose
o Public use is not about mechanics of taking (can be to private party)
o Arguments for:
 Leg is best equipped to decide public use
- Wayne Cty Approach:
o Public necessity of the extreme sort
o Remains subject to public oversight after transfer to private entity
o Property taken is selected because of facts of independent significance
- Post-Keto Legislation:
o Rigid rule: no takings for economic development and/or blight (most states allow blight takings)
 All income neighborhoods same under law
o Arguments for:
 Fairness: govt shouldn’t be able to choose who benefits from property
 Distribution of wealth and distribution of voice – equal respect in decision making
- Accusation of Pretextual Taking and Impermissible Favoritism – results in stricter standard of review
o Comprehensive plans
o Competitive bidding
o Public funding committed before identity of private developer

Just Compensation:
- Generally, fair market value
o best and highest use:
 physically possible
 legally permitted
 financially feasible
 maximally productive
o exception, recognized indian title can be taken without just compensation
 recognized title generally only requires good faith effort for fair market value?
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- no compensation for subjective/idiosyncratic values (business goodwill, relocation costs)
o some statutes allow for this type of compensation

Right to Transfer

Easements: not revocable at will, permanent or intended to last for a defined period of time
1. Affirmative – right to do something on someone else’s land
2. Negative – the right to control someone else’s use of land
- CHARACTERISTICS:
o Appurtenant – runs with land, benefits whoever owns dominant and burdens whoever owns servient
 In writing, intended to run (based on language or circumstances) and servient owner purchased with
notice
o In Gross – not attached to the land, personal, ownership can move from person to person even if land ownership
doesn’t change
- CREATED BY:
o (1) express agreements, (2) implied by law (estoppel, prior use, necessity), (3) prescription
TWO MAIN EXPRESS EASEMENT Q’s:
1. Appurtenant or personal?
a. Strong presumption of appurtenant
b. If in gross, most courts allow owners to extend use to other purposes not inconsistent with principal use and are
transferable if commercial in nature.
2. Scope?
a. Subdivided? Yes if appurtenant because runs with land whether one owner or many
b. Entitled to impose reasonable restraints to avoid greater burden than contemplated

Covenants: contractual restrictions that run with the land

- Does it run with land? Is it enforceable?
- Emerged because courts wanted to limit number of negative easements & allow restrictions
- Restrictive covenants and equitable servitudes are now the same
- Four Requirements:
1. Writing
2. Intended covenant to run
3. Notice
a. Actual – deed explicitly mentions restrictions
b. Constructive – should do due diligence b/c restriction recorded
c. Implied – if a person has info that would lead them to make further inquiry
4. Touch and Concern/Reasonableness
a. Rigid (enhances value or use – WINN DIXIE)
b. Flexible (fact by fact, whether existence alters rights of parties (effects and legal relationship) – NEPONSIT)
c. Reasonableness (8 factor test from Davidson)
i. Purpose of covenant, existence of covenant reflected in price exchange, writing with notice
reasonable in relation to time, duration, area; whether covenant is unreasonable restraint on
trade, intereferes with public interest, or changed circumstances made unreasonable)
5. Privity
a. Horizontal – relationship between original covenanting parties (simultaneous and reciprocal)
i. Courts are starting to relax this rule
b. Vertical – relationship between original covenanting parties and successors in interest
i. Can transfer less than full bundle
ii. Courts are starting to relax this rule
- Invalid if:
o Unconstitutional
o Unreasonable
o Violates PP
- Shift in Restatement Third (BELOW)

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Right to Transfer Particular Sticks – Law of Servitudes

EASEMENTS:
Implied Easements:
By Estoppel Prior Use Necessity
(1) To promote the intent of the grantor: Requirements: Requirements:
- Ambiguous deeds with incorrect 1. unity of ownership 1. unity of ownership before being
language 2. Conveyance severs parcels severed
- Oral easements 3. prior to severance, one parcel was 2. conveyance severs the two parcels
used for benefit of the other 3. landlocked (primarily, but also other
4. use = apparent and continuous uses necessary for beneficial enjoyment)
5. use = reasonably necessary 4. grantee acquires right of way implied
from necessity
(2) Against the interest of the grantor, to
protect interest of grantee:
1. permission given
2. inducing reasonable reliance
3. substantial investment
4. revocation of license would be
injustice
(3) Implied from a plat: (divided into
subdivisions)
- reasonably beneficial for full enjoyment
- necessary

Easements Implied by Estoppel: elements?

- When landlord imposes a servitude on property and another person reasonably relies on the existence of such a servitude
for a particular act
- To effectuate intent of parties when:
o Easement granted orally, deed is ambiguous, or when writing doesn’t comply with SOF
- Constructive Trust: trust imposed by courts for equity and to prevent unjust enrichment when transferee of property
breaches a confidential relationship with transferor
o All the requirements of easement by estoppel (promise, transfer/investment in reliance, & unjust enrichment) +
fiduciary relationship between donor and beneficiary
 Often following divorce?

Easements Implied from Prior Use and Necessity:

- Necessity: without which owner of benefitted property is deprived of the use and enjoyment of property
o Scope depends on necessity (elastic, flexible, can be widened); necessary, lies dormant temporarily if no longer
necessary (can pop up again)
- Prior Use:
o Scope determined by prior use (cannot be widened); reasonable necessary; requires continuous use (no dormant)
o More lenient when prior use by grant and less lenient when prior use by reservation (needs higher level of
necessity)
- Prior use not lost if you lose the necessity (defining element is use), but necessity is lost without necessity

PRESCRIPTIVE EASEMENTS TOO – Lobato discusses all types (finds both implied by estoppel and prescriptive easement)
- Same elements as AP with exception of exclusivity
- Tacking applies too
- Scope determined by use – not necessary to have absolute precision – general outline
- No negative easements allowed

Express Easements:
- Easement that is expressly stated in deed, presumed to be appurtenant
- Appurtenant:
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Professor Name, Class, Year Your Name
o In writing
o Intended to run (language and circumstances)
 magic words (e.g. heirs, successors, runs with land, etc)
 are the benefits tied to land or independent from land?
o Servient purchased with notice (actual, ---, constructive)
o SCOPE:
 Divisible (with reasonable restrictions to avoid greater burden than originally)
 Intensity – reasonably calculated to promote the use for which it was granted, without causing undue
burdens or interferences
 Width – intent of parties at time of grant
o Relocation of appurtenant easement is OK if it is reasonable (some don’t allow it, some with damages)
 Does not lessen utility, frustrate purpose, or impose undue burden on servient
o Courts favor appurtenant because more stable and predictable system, better notice
- In Gross:
o Commercial utility apart from land OR
o Personal, private accommodation for non-commercial purposes
o SCOPE:
 Kind of use: reasonably related uses
o Transferable: if commercial value, but not for personal accommodation
o Apportionable: if exclusive, unless contrary to intent of parties or unreasonably increases burden

COVENANTS:

3 Categories of Equitable Servitudes in Restatement (3rd)

Easement Running Covenants Profits
Affirmative (negative easements become Affirmative – requires covenantor to do Right to enter and take some resources
indistinguishable from restrictive something
covenants)
Negative – requires covenantor to refrain
from doing something
Restrictive – limits permissible use of
land (including negative easements)

Restatement (3rd) Changes:

- Drops distinction between real covenants and equitable servitudes
- Requirements to run with the land simplified:
1. Intent to run with land
2. Comply with method for creating a covenant (contract or conveyance with SOF)
3. It is not invalid
a. Illegal, unconstitutional, violates PP

Implied Reciprocal Negative Servitudes:

- Applicable to residential subdivisions only – developer intended to create a plan of development
- Solves problems of notice (when imposes restrictive covenant on most but not all lots) and privity (earlier buyers couldn’t
enforce against later buyers)
- EFFECTS:
o Restrictions are implied on all lots comprised in general plan
o Allows reciprocal enforcement by all owners
- REQUIREMENTS:
o General plan (number of lots restricted, uniform restrictions, oral representation, different phases, etc)
 Common grantor
 Uniform restrictions
o Notice (constructive – duty on buyers to check all deeds previously granted)

Enforceability of Covenants:
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Professor Name, Class, Year Your Name
- In the master deed: strong presumption of validity
o Enforceable unless…
 Arbitrary, violates PP, or violates constitutional right
- Subsequently Adopted: reasonableness test
o Enforceable if reasonably related to the promotion of health, happiness, and peace of mind of owners collectively
considered
- Anti-Competitive Covenants: unreasonable restraints on trade (against PP)
o Rule of Reason:
 Definition of relevant product market and geographical market
 Market power of defendant in relevant market
 Existence of anti-competitive effects
 Then defendant show procompetitive justification

Restraints on Alienation: (against PP)

- Three types – disabling (prohibits future transfer), promissory (promises not to transfer), and forfeiture (if grantee
transfers, then auto goes to 3rd party)
- Direct – invalid if unreasonable
- Indirect – invalid only if lacks rational justification (fees, clauses that limit profit, etc)
- Total and permanent restraints are unreasonable and void, but partial and temporary may be reasonable
o Reasonableness – balancing utility of purpose of restriction and harm likely to flow from enforcement
 Consider purpose, time/duration, nature of development, nature of property interest)
o Old Approach: Type of Estate - Fee simple restraints are usually repugnant, but smaller bundle like leases usually
allow restraints
- Racially restrictive covenants regularly upheld before Shelley
o SHELLEY V. KRAEMER:
 Action of courts to enforce racial restriction is state action under 14A
 Led to contemporary functional equivalents that still exist

Terminating Servitudes:
- Changed Conditions Doctrine – fundamental change in nature of restricted property makes benefit of covenant incapable of
enjoyment (EL DI)
- Also, expiration, release, abandonment (with affirmative conduct that signals intention to), merger, estoppel, prescription,
or condemnation

Right to Transfer – The Market for Housing

Fair Housing Act:
- Very broad, 3 means of enforcement
- Effective in combatting racial discrimination against middle-income black families, but no protection based on wealth, so
socioeconomic segregation is still huge problem
- “Dwelling” = any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as a
residence by one or more families
o Two outcomes:
 Dwelling is an independent living unit – FHA stops at front door, does not interfere with personal relations
inside home, roommates involve constitutional right to intimate association
 Dissent: because of website use FHA should govern because market transaction, advertisements
not excluded
 Madison General Ordinances clearly and unambiguously applies to housemates, subleasing
 Gave up unqualified right to intimate association when they rented housing for profit
- Prima Facie FHA Case:
o Member of racial minority
o Applied for and was qualified to rent
o Denied opportunity to rent or inspect
o Housing opportunity remained available
- Punitive damages: defendant’s own conduct or authorization of employee’s conduct
- Prohibited Conduct:
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Professor Name, Class, Year Your Name
o §3604 – refusal to rent or sell, refusal to negotiate for rental or sale, etc because of race, color, religion, sex,
familial status, or nationality
 Includes racial steering
o Discrimination in terms, conditions, and privileges – services or facilities
o §3604(c) – to make, print, or publish any notice, statement or advertisement
 NO EXEMPTIONS (not even Ms. Murphy)
o Because of handicap – refusal to make accommodations
- Disparate Impact: cognizable under FHA – facially neutral with disproportionate effect
o Prima facie of discrimination
o D to produce evidence that refusal was motivated by non-discriminatory reasons
o P then show that reasons were pre-textual, or could be served by lesser discriminatory practice
- Exemptions:
o Single family home sold without broker (still no exemption for advertisements)
o Owner-occupied four family dwelling (Ms. Murphy) (still no exemption for advertisements)
o Religious orgs and private clubs
o Housing for older persons
o Reasonable occupancy limit

Sex Discrimination: clarification of FHA

Quid pro quo: HUD Regulations 2016
- Unwelcome request or demand where submission is explicitly or implicitly made a condition
Hostile Environment: HUD Reg 2016
- Unwelcome conduct that is sufficiently pervasive or severe to interfere with dwelling
- Does not require change in economic benefits
- Factors: nature of conduct, context, severity, scope, frequency, duration, and location
- From perspective of reasonable person
- Written, verbal, and does not require physical conduct
- Single incident may be sufficient
Landlord Liability for Tenant Harassing other Tenant: HUD Reg 2016
- Liable for failing to take prompt action to correct or end discriminatory housing practice by 3 rd party
- Depends on extent of person’s control or legal responsibility
o If fail to take corrective action when knew or should have known of harassment and had power to end it

Publisher’s Liability: Communications Decency Act Sect 230

- No provider or user of interactive computer service shall be treated as publisher or speaker of any information provided by
another information content provider
o No liability for good faith restriction or screening of offensive material

With Civil Rights Act of 1866 – prohibits discrimination in acquiring property, applies to private parties
- FHA much broader, CRA only race
- CRA is discriminatory treatment or intent to discriminate only, FHA has disparate impact
- Must prove that earlier and more general act was intended to stay in effect
o Intended earlier act to remain in force because FHA is specifically about housing, no savings clause, BUT some
could say language of 3603(b) functions as savings clause
- Then look to see if they are inconsistent (conflicts with Ms. Murphy exemption in FHA)
o If there is a conflict between earlier and more general statute and later, more specific one, the later one prevails –
allowing CRA to govern would make exemption in FHA meaningless

Pt 2 – Smaller Bundles

The Leasehold
Leasehold is a bundle split between landlord and tenant – a transfer of an estate in land but with bilateral contractual obligations.
- Lease = transferring right of (1) exclusive possession of (2) specific parcel for a (3) period of time
- Hybrid of property law (transfer of possession) and contract law (bilateral contract with rights and obligations)
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Professor Name, Class, Year Your Name
o This is a modern approach, use to be strictly property law
Three Types of Leaseholds:
1. Term of years
2. Periodic tenancy
a. Period renewed automatically,
3. Tenancy at will
a. Terminable at any time by either party

Tenant Obligations/Rights:
- Duty to pay rent
o Rent can run with parcel (sue sublet) or as a contractual provision (sue original tenant) dependent on language
- Right to eviction through summary process
o Can have self-help for landlords – but must always be peaceful not forceful
- Duty not to commit waste
- Duty to operate
o Implied vs. express if doesn’t operate
- Right to assign or sublet

Landlord Obligations/Rights:
- Eviction
- Sue for backpaid rent or damages
- If tenant moves out before end of term and stops paying rent
o Accept surrender, OR
o Refuse surrender and duty to mitigate damages
- Duty of reasonableness in refusing consent to assign/sublet

Right to Assign/Sublet:
- Term of years is transferrable
- If consent is required, is landlord control absolute?
o Commercial – no, has to be reasonable (implied duty of good faith)
 E.g. financial positions, suitability of property, not personal taste or convenience
o Residential – yes if in rent controlled area, but most likely no?

Rent Control:
- Affordability for tenants, reasonable return for landlords
- Yearly adjustments to reflect inflation, improvements, and maintenance

Implied Warranty of Habitability:

- Obligates landlord to provide premises that are safe and suitable for habitation
- Based on local housing codes and common law
- Standard of habitability:
o Majority: set by local housing codes – satisfy at start of lease and continue throughout
o Other: general community standard of suitability for occupancy
- Notice:
o Breach when the condition occurs
o OR breach when the landlord has reasonable time to fix and failed to do so
- Remedies:
o Termination
o Rent withholding
o Rent abatement
o Damages
o Self-help
o Fines
- Nondisclaimable, does not apply to most commercial leases

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Professor Name, Class, Year Your Name
Constructive Eviction:
- Actual: landlord breaches lease by physically barring the tenant from the property, tenant obligation to pay rent ceases
- Constructive: landlord substantially interferes with the tenant’s quiet enjoyment of premises (acting or failing to act on
duty)
o Allows tenant to stop rent payments and move out before end of lease term
 Need to move in reasonable time (otherwise may show not substantial interference)
o May also apply to landlord’s failure to act for 3 rd party’s interference – if w/in power to control

Retaliatory Conviction:
- Landlord may not retaliate against tenants for asserting legal rights related to tenancy
- Presumption of retaliation if it comes within one year of a tenant complaint/action
- Presumption rebutted if landlord shows legit, not retaliatory reasons
- Prohibits eviction
o Until landlord makes repairs required by law
o Applies to non-renewal of tenancy
o For a specific period of time

Duty to Mitigate Damages:

- Again, if tenant moves out and stops paying rent before end of term, landlord has duty to mitigate
o Duty to make reasonable efforts to find replacement
o If landlord fails to mitigate, damages lowered

Commercial Tenancies:
- Duty to mitigate may not apply
- Constructive eviction applies
- Implied warranty of suitability may not apply

Concurrent Ownership
Three types (1) tenancy in common, (2) joint tenancy, and (3) tenancy by the entirety.

Tenancy in Common:
- Two or more people own same property at same time
- Undivided fractional interest – each has right to possess the whole, but entitled to different proportions of proceeds from
sale
- Right to possess whole, but can agree that only one will or use different parts
- Each tenant’s interest is alienable, inheritable, and devisable
- If a tenant transfers their interest, the transferee becomes tenant in common
- If problems, can always ask for partition
- Ouster:
o Actual ouster – cannot exclude the other tenant, but no penalty for merely using right to possess alone
o Constructive ouster – circumstances make it impossible or impracticable to both possess
 May be entitled to rent
 If hostility flows from non-tenant, not ouster but abandonment and no rent obligation

Joint Tenancy:
- Magic words – need to say joint tenants
- Requires Four Unities
o Time: interests created at same moment
o Title: acquire title by same instrument
o Interest: equal undivided fractional interest (50/50, etc)
o Possession: right to possess entire parcel
- NOT inheritable or devisable
o Alienable without consent, but transfer severs joint tenancy and creates tenancy in common (no right of
survivorship)
 Leases don’t sever usually
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Professor Name, Class, Year Your Name
- Right of survivorship – once one tenant dies the other acquires the entire property fee simple

Tenancy by the Entirety:

- Requires 4 unities plus MARRIAGE
- Differs from joint tenancy:
o Cannot be transferred without consent of other
o Individual interests cannot be reached by creditors of spouse
o Partition unavailable – severed only by divorce

Partition:
- Partition in kind preferred and presumed
o Unless…
 Property cannot be divided in kind
 Partition by sale promotes interests of one or more parties
 Partition does not prejudice interest of other parties
o Market value not always fair compensation for loss of personal property

Management:
- Commonly owned property is managed jointly
o Disagreement = partition
- Some courts: No enforceable obligation to pay for necessary repairs absent an agreement to do so
o Other courts: obligated to share costs of necessary repairs
- All agree – no obligation to contribute to cost of major improvements unless previously agreed
- Contributions from repairs from tenants out of possession are sometimes not required, other times proportional to value of
use of property
- Each entitled to portion of rent proceeds if rent

Marital Property
Separate Property:
- Property acquired before marriage
- Property earned after marriage
- Debt liability

Equitable Distribution of Property:

- Upon divorce, equitable distribution (either all or only that acquired during marriage)
o Factors:
 Need (for necessities, e.g. child support)
 Status (maintain lifestyle shared)
 Rehabilitation (to attain marketable skills)
 Contribution (partnership, divide assets jointly from enterprise)
 Sometimes marital fault
 Age, health, occupation, dissipation of property during marriage
 Time
o Can be mechanically – give back separate property and split community property in half
o Or can be equitable distribution – equally apportion
- At death, surviving spouse entitled to statutory share
o If no will, intestacy statute applies

Community Property:
- Property acquired during marriage is community property owned jointly and equally
o Management: can individually manage without consent
o Must agree to convey or mortgage

Modes of Acquiring Property

Original Indian title - only right to occupy, possess, use, no right to transfer except to US govt
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Professor Name, Class, Year Your Name
- US govt has title and power to grant lands without consent because of conquest -> doctrine of discovery

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