Weidner Property Outline

Table of Contents

I. Cases
II. Law
III. Modified Syllabus-Condensed Outline
IV. USE HIS SLIDES AS AN OUTLINE

I. Cases

1) Armory v. Delamirie (1700s)

Facts:
 Chimney sweeper’s boy found a jewel and took it to a goldsmith shop.
 He wanted to know what it was and presumably its worth.
 Boy delivered it to the apprentice.
 Apprentice, under pretense of weighing it, took out the stones.
 Apprentice told master it was worth three halfpence.
 The boy refused to take the money and asked for it back.
 The apprentice gave it back as a socket without stones
 Chimney sweep boy would be young, small, vulnerable to diseases because of job
 Master had a reputation for working in silver and was celebrated and prolific the first half of 18 th century-work is in
many museums and pieces have sold at auction for > $1 million. Had previously been fined for not stamping his work
and claiming authorship of other's work. Criminal investigation for illegal exportation of silver, etc. 
Procedural Posture:
 Boy brought action for trover against the master goldsmith
 Trial Court found for Armory
 Goldsmith appealed, claimed Plaintiff didn't have right- not true owner because he just found them. 
 Judgment affirmed
Holding:
 Finder of the jewel, though not acquiring absolute property or ownership, has rights to property above all but the
rightful owner and consequently may maintain trover
 Action is against the master who is answerable for the apprentice
 The value of the jewel, unless produced by defendant, would be presumed by jury to be the strongest and best value of
the jewels that could fit in the socket.
Rule:
 A prior possessor prevails over a subsequent possessor
 A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced against
anyone except the true owner of the chattel. 
2) The Winkfield
Facts:
 Two ships, the Winkfield and the Mexican, collided off the coast of South Africa.
 Both ships were damaged, and the Mexican sank.
 Although the crew, passengers, and some mail and luggage were saved, the rest of the Mexican’s cargo was lost.
 The postmaster general was the bailee for the mail
Procedural Posture:
 Owners of the Winkfield admitted liability
 Postmaster-General filed a claim for the value of lost mail for which no other claim had been made
 Claim was refused on ground that Postmaster was not liable to anyone, not even bailor, for the property
 Postmaster appealed
 Judgment reversed
Holding:
 The law presumes that, when a person wrongfully deprives another of property, the possessor had title to the property.
 The wrongdoer is liable to the possessor for the full value of the chattel that has been converted or damaged.
 This principle is the reason a bailee may recover from a wrongdoer for conversion or damage to chattels. 
Rule:
 o A bailee can recover against a wrongdoer for trespass or damage to chattels even if the bailee is not liable to the bailor for
the trespass or damage.
o Bailors of voluntary bailment can recover from third party for injury to property if third party has not already paid
bailee

3) Anderson v. Gouldberg
Rule of Law:
 One in possession of illegally acquired property may assert a claim for replevin against a subsequent possessor.
Facts:
 Anderson (plaintiff) harvested timber without permission from the land of an unknown third party and hauled it to a mill.
 Gouldberg (defendant) appropriated the cut timber from the mill claiming that it had been harvested from land owned by the
Ann River Logging Company.
Procedural Posture:
 Anderson filed a claim for return of possession or the value of the timber.
 The jury concluded that the timber was not harvested from logging company land and returned a verdict in Anderson’s favor
with an award of monetary damages.
 Gouldberg moved for a new trial, The district court ruling is affirmed.
Holding:
 the venerable doctrine of Armory v. Delamirie holds that actual possession of property supports a claim of title superior to
anyone other than the true owner
 One who possesses illegally acquired property may advance an action for replevin against one who subsequently takes the
property without the possessor’s consent.
 Unless the succeeding possessor can demonstrate a valid claim to superlative title, the claimant is entitled to continued
possession.
 This rule avoids a continuous cycle of claims to establish ownership of property separated from its true owner.
4) Russell v Hill
Holding:
 The established law of North Carolina holds that a plaintiff must demonstrate either a valid claim to ownership or both legal
title and actual possession of property to have standing to bring an action in trover.
 To allow a plaintiff to prevail in trover when the facts demonstrate that the plaintiff has no valid claim of ownership would
place defendants at risk of repeat liability.
 Apparent conflicts with this rule in the case law of other states are based upon a misunderstanding of Armory v. Delamirie.
o In that case, the court awarded ownership to the finder of property where the true owner was unknown and the
defendant took possession without the finder’s consent. The court opined that it would have reached a different result
if the facts before it had revealed the identity of the true owner.
5) Payne v TK Auto Wholesalers
Rule of Law:
 A thief has a legally protected interest in stolen goods that is superior to all but the true owner.
Facts
 Plaintiff met the defendant’s employee to look at cars for purchase.
 The plaintiff identified himself as Paul Payne. In actuality, Payne is the plaintiff’s cousin.
 The plaintiff had stolen Payne’s identifying documents and $3,000 in cash.
 The plaintiff agreed to purchase a car and provided Payne’s driver’s license for the paperwork.
 Robson noticed the discrepancy between the plaintiff’s appearance and the photo on the driver’s license, but continued with
the sale and received $1,300 from the plaintiff as a down payment.
 After the plaintiff left, Robson located Payne’s phone number and called him regarding the sale. Payne explained to Robson
that the plaintiff had stolen his identity and requested that Robson call the police.
 The police instructed Robson to arrange for the plaintiff to pick up the car, at which time the police arrested the plaintiff.
 The plaintiff was convicted for identity theft, forgery, and criminal attempt to commit larceny.
Procedural Posture:
 The plaintiff brought suit against the defendant
 The trial court ruled that the plaintiff had no possessory interest in the stolen money and therefore lacked standing to bring the
suit and dismissed the case.
  The plaintiff filed a motion to open the judgment.
 The court denied the motion and the plaintiff appealed.
 The judgment is reversed and the case is remanded for further proceedings.
Holding:
 A thief has a legally protected possessory interest in stolen goods.
 This possessory interest is superior to all but the true owner of the stolen goods.
 By virtue of having control over and possession of the money, the plaintiff here has a legally protected possessory interest in
the money he paid to Robson, although he obtained the money illegally.
 In Anderson v. Gouldberg, the plaintiff stole timber but later had the timber stolen from him by the defendant. The plaintiff
brought an action for replevin. The defendant argued the plaintiff could not maintain the action because he was not the rightful
owner of the timber. The Gouldberg court rejected this argument, stating that the plaintiff’s right to the timber was inferior
only to the true owner. Thus, the plaintiff possessed a superior right against the defendant.
 Here, the plaintiff’s right of possession is measured only against the defendant, against whom the plaintiff has a superior right.
6) Hannah v Peel
Facts:
 In 1938, Major Hugh Peel (defendant) was granted ownership of a house.
 There is no indication that Peel ever lived in the house.
 In 1940, Lance-Corporal Hannah (plaintiff) lived in the house while it was requisitioned for the quartering of soldiers.
 While there, Hannah was adjusting the black-out curtains when he touched something in the window frame, loose in a crevice
and dropped it on the outside window ledge
 Next morning, he found it a brooch covered in dirt and spiderwebs
 Hannah told his wife; she said it might be valuable
 2 months later reported to his superior officer who said to turn it in
 Hannah reported his find to the police, who held the brooch for two years.
 When no owner was found, the police gave the brooch to Peel
 Peel sold it for 66£ in 1942.
Procedural Posture:
 Hannah sued Peel for the value of the brooch or return
 Judgment for Hannah entered in the amount of 66£.
Rule:
 A finder of lost chattel on another’s property has rights to that chattel superior to the rights of the property owner.
Holding:

 The owner of land possesses anything attached to or under the surface of the land, but not necessarily things lying on top.
 The general rule is that the finder of lost property has better claim to it than anyone but the true owner. Armory v. Delamirie
 The law of who takes between a finder of property and the owner of the land where the property was found, however, remains
unsettled. In Bridges v. Hawkesworth, the court made clear that “[t]he place in which an article is found does not constitute any
exception to the general rule of law, that the finder is entitled to it against all persons except the owner." There, a patron found
bank notes in a store. When no owner was found, the patron sought the notes from the shopkeeper. On appeal, the court held
that the notes belonged to the finder, as the shopkeeper never exercised control over the notes. The notes clearly had been
“lost.” It was happenstance that the notes were lost in the store.
 In contrast, the court in South Staffordshire Water Co. v. Sharman, held that the possessor of land had better right to goods
found on the land than the finder. It is not clear that this rule is correct. The judge went beyond the proposition that a
landowner is entitled to everything “attached to or under the land.” There, Sharman found two rings at the bottom of a pool,
but Sharman was on the property because the water company contracted with him to clean out the pool. A better explanation
for the outcome there is that Sharman may have obtained possession first, but his employer had the right to claim title because
Sharman was acting as an agent.
 In Elwes v. Brigg Gas Co., a gas company that had leased the mineral rights to property found an ancient boat while
excavating the land. The court held that the boat clearly belonged to the property owner, who owned and exercised control of
the property at all times.
 Here, Hannah found the brooch that had clearly been lost. The fact that it was found on Peel’s property did not grant Peel any
ownership interest.
 Peel was never physically in possession of the house and had no knowledge or control over the brooch.
 Judge may have taken into account the “meritorious” behavior of the soldier
 The fact that the brooch was “lost” inside Peel’s house was happenstance and conferred no possessory interest on Peel.
7) Bridges v Hawkesworth
Rule of Law:
  When a lost item is found upon property that is open to the public, ownership of the lost item vests in the finder as opposed to
the owner of the real property where the item is found.
Facts:
 Bridges (plaintiff) found a small package on the floor of a shop owned by Hawkesworth (defendant).
 After discovering that the package was full of bank notes, Bridges gave the package to Hawkesworth to hold in case the true
owner showed up.
 Three years passed and no one appeared to claim the lost notes, B asked H to return the notes, Hawkesworth refused
Holding and Reasoning:
 The longstanding rule is that the finder of a lost item is entitled to claim ownership exclusive of anyone other than the true
owner.
 Hawkesworth only obtained possession of the package by virtue of the fact that Bridges discovered it and turned it over to
Hawkesworth to hold for the benefit of the true owner.
 Hawksworth’s shop was open to the public and anyone could have discovered the package.
 Hawkesworth never had possession of the package before it was found and he was not in the position to assert control over its
disposition until Bridges gave it to him.
 Nothing about the facts of this case remove it from the doctrine of the standing rule of law.
 Bridges is the finder of the lost article and is entitled to claim ownership exclusive of all but the true owner.
 FOUND TO HAVE MADE DISTINCTION ABOUT PUBLIC v PRIVATE IT NEVER MADE
8) South Staffordshire Water Co v Sharman
Rule of Law:
 When a lost item is found upon property over which the property owner exercises exclusive control, ownership of the lost item
vests in the property owner as opposed to the finder.
 The land carries with it possession of everything which is attached to or under the land
 Agents when finding a thing as an agent or servant, finds it not for himself but for his employer
Facts:
 South Staffordshire Water Company (plaintiff) owned property that contained a pool and hired Sharman (defendant) to clean
the pool.
 In the mud at the base of the pool Sharman found two gold rings, embedded in the mud.
 South Staffordshire insisted that Sharman turn over the rings, but Sharman declined and gave them instead to the police.
 Finding no success at locating the rings’ owners, the police eventually returned the rings to Sharman.

Procedural Posture:

 South Staffordshire filed suit demanding the return of the rings.

 The lower court found that no contract existed that would expressly vest ownership rights in South Staffordshire.
 The court held that the precedent set forth in Bridges v. Hawkesworth, applied to the facts of the case and established a right to
ownership by Sharman exclusive of everyone but the true owners of the rings.
 South Staffordshire appealed.
 The county court is reversed and judgment is granted in favor of South Staffordshire Water Company.
Holding and Reasoning 
 This case differs from Bridges v. Hawkesworth in that the location of the property found by Bridges was a shop open to the
general public.
 In that case, it made sense to apply the general rule conferring ownership upon the finder.
 In the present case, South Staffordshire Water Company held the absolute right to exclude all others from occupancy or
intrusion upon the property.
 The existence of that authority forms the basis for South Staffordshire to assert both actual and legal possession of items found
on its property.
 When the intention to assert exclusive control over real property is inherent in the nature of the ownership and use of the
property, the owner of the property is presumed to be the rightful possessor and owner of any item found thereon.
 Makes no difference in these circumstances if the possessor is not aware of the thing’s existence
 The land carries with it possession of everything which is attached to or under the land
 If an agent finds a thing he finds it not for himself but for the employer and can claim no title for himself
9) Elwes v Brigg Gas Co
Facts:

 Land had been leased to a gas company for 99 years with a reservation to the lessor of all mines and minerals
 A pre-historic boat embedded in the soil was discovered by lessees as they were digging to make a gasholder
Rule:

 A landlord/ property owner, despite being unaware of their existence, has a better right to items found under the surface
of the land than a tenant/occupier finder (when the true owner cannot be found) in the absence of an explicit or implied
term in the lease stating otherwise.

Holding:

 The court held that the boat clearly belonged to the property owner, who owned and exercised control of the property at
all times.  
 The boat whether regarded as a mineral or part of soil or as a chattel, belonged to plaintiff at time of granting the lease
 Right of true owner could not be established as for centuries it had been lost
 Plaintiff had lawful possession good against all the world
 No difference that Plaintiff was unaware of existence of boat
10) Parker v British Airways
Facts:

 A passenger named Parker found a gold bracelet on the floor of an executive lounge at Heathrow airport.
 He handed it to the owners of the land (British Airways Board) in order for them to attempt to find the true owner
 requesting that the item be returned to him should the original owner not be found.
 British Airways Board sold the unclaimed bracelet for £850
Procedural Posture:
 Mr. Parker sued for damages, challenging their claim to the bracelet.
 At first instance, he was successful, and was awarded £850 as damages and £50 as interest. 
 British Airways appealed
 The court upheld Mr. Parker's claim, as the bracelet had been found in an area frequented by the public that British
Airways Board did not exercise sufficient control over.
 British Airways Board were thus unable to assert superior title over the bracelet.
Holding:
 Donaldson LJ held that this was a case of "finders keepers". 
 The defendants could not assert any title to the bracelet based upon the rights of an occupier over chattels attached to a
building. Here, the bracelet was lying loose on the floor. 
 There was no sufficient manifestation of any intention of the defendant to exercise control over lost property before it
was found which would otherwise give the defendants a right superior to that of the plaintiff or indeed any right over
the bracelet.[1] 
 The judgement laid out clear rules for both the Finder, and the Occupier of the Premises: 
 Rights and Obligations of Finder 
o No rights are acquired unless (a) the item is abandoned or lost and (b) the finder must take the item under their
care and control to gain rights. 
o If the finder takes it into their care with dishonest intent or in the course of trespassing, then they acquire only
limited rights 
o The finder only acquires any rights against the world as a whole. The true Owner, and anyone with a prior
right to keep the item that existed when the finder took it into their care have better rights to the item. 
o Employees finding items in the course of their employment are finding it on behalf of their employer (unless
there is agreement otherwise). 
o The finder has an obligation to inform the true owner that the item has been found and where it is by whatever
means are reasonable in the circumstances. In the meantime, they have to take care of the item. (Note:
Reasonable steps) 
11) Favorite v Miller
Rule of Law:
 A finder will lose his right to a piece of property if he obtained said property by knowingly trespassing on another’s land.
Facts:
  At the beginning of the Revolutionary War, a group of patriots dismantled a statue of King George III in New York City,
bringing the pieces with them on their way through New England.
 While in Connecticut, the pieces were recovered by a group of loyalists, who buried them in different areas, to be recovered at
a later date.
 Many of the pieces were never recovered.
 In 1972, Louis Miller (defendant) entered upon the land of Mr. and Ms. Favorite (plaintiffs) after hearing that a piece of this
statue might be buried on the land.
 Mr. Miller was aware that the property on which he was entering was private property.
 Through the use of a metal detector, Mr. Miller found a piece of the statue, dug it up, and entered into a contract to sell the
piece to the Museum of the City of New York for $5,500.
 Mr. and Ms. Favorite then brought this action against Mr. Miller.
 The trial court ruled in favor of the Favorites, determining that the piece was mislaid and therefore belonged to the Favorites
because it was located on their property.
 Mr. Miller then appealed to the Connecticut Supreme Court.
 The judgment of the court below is affirmed.
Holding:

 Mr. Miller relinquished any right he may have to the statue piece in question because it was obtained by knowingly trespassing
on the Favorites’ land.
 A finder will lose his right to a piece of property if he obtained said property by knowingly trespassing on another’s land.
 In this case, Mr. Miller admits that he was aware he was entering private property when he sought out the statue piece.
 Finders who are aware that they are trespassing on another’s property should not benefit from their wrongdoing.
 Since Mr. Miller knew that he was trespassing on another’s land to recover the statue piece, he should not benefit from his
wrongdoing.
 Therefore, Mr. Miller is not entitled to any right he may have as a finder of the statue piece.
12) McAvoy v Medina
Rule of Law:
 Mislaid property is not subject to the rule that a finder of lost property has a valid claim to the property against everyone except
the true owner.
Facts:
 While getting a haircut at a barber shop owned by Medina (defendant), McAvoy (plaintiff) found a pocketbook on the table
and showed it to Medina.
 The pocketbook had been placed on the table by a customer and accidentally left on the table.
 McAvoy left the pocketbook with Medina so that efforts could be made to see if the owner would claim it.
 After no owner came forward, McAvoy demanded that Medina give the money to him, as the finder of the pocketbook, and
Medina refused.
 Procedural Posture:
 McAvoy then sued to recover the money that he found in the pocketbook.
 The trial court entered judgment in favor of Medina
 McAvoy appealed.
 Accordingly, McAvoy had no claim to the item, and the judgment for Medina is affirmed.
Holding:
 Mislaid property is not subject to the rule that a finder of lost property has a valid claim to the property against everyone except
the true owner.
 Mislaid property is property that the owner voluntarily placed somewhere and then neglected to remove.
 Putting an item in a particular location and forgetting to pick it back up is not the same as losing the item.
 In Bridges v. Hawkesworth, property was found on the floor of a shop, and the finder was entitled to possession of the property
except as to the property's true owner.
 Unlike the pocketbook in this case, which had been voluntarily placed on the table by its owner and then forgotten, the
property in Bridges had not been placed on the shop floor voluntarily by the owner.
 In other words, the property at issue in Bridges was lost and not merely mislaid.
 The simple act of finding mislaid property in a store does not give the finder the right to take it and claim ownership.
 Rather, it is the shop-owner's duty to use reasonable care to keep the property safe until the true owner returns.
13) Michael v First Chicago Corp

 “A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except
the true owner, and is entitled to keep abandoned property.”
o Remember to consider distinctions, especially about lost property
14) Jackson v Steinberg

 Chambermaid found $800 under paper lining in a dresser drawer

 Turned it into manager
 Sued for return when true owner not found
 Awarded to hotel owner on theory that it was mislaid property that the maid had a duty to deliver to her employer
15) Erickson v Sinykin

 Money found by interior decorator held abandoned

 Not obligated to report find to employer
16) Kalyvakis v TSS Olympia

 $3,000 found by ship steward on floor of ship’s public men’s room

 Awarded to finder on ground that it was lost or abandoned
 Court rejected principal-agent rule
17) Hoel v Powell

 Family saw money scattered on road. They secured the money and contacted authorities.
 Deputy sheriff arrived and secured scene.
 Never found rightful owner.
 Sheriff tried to deposit money into Sheriff's training saying Hoels had never taken possession.
 Court held for Hoels because they only didn't take literal possession because deputy ordered them not to
 but they did secure and take charge of the scene before the deputy arrived
 enough to give them rights as a finder, superior to anyone except true owner. 
18) Corliss v Wenner

 Jann Wenner (defendant) hired Larry Anderson (defendant) and his employee, Gregory Corliss (plaintiff), to construct
a driveway on Wenner’s ranch.
 While excavating soil for the driveway, Anderson and Corliss unearthed a glass jar containing rolls of gold coins.
 Anderson and Corliss agreed to split the gold coins between themselves, with Anderson maintaining physical
possession of all the coins.
 Anderson and Corliss later argued over ownership the coins, and Anderson fired Corliss.
 Anderson then gave possession of the coins to Wenner in exchange for indemnification against any claims that Corliss
might have against Anderson regarding the coins.
 Corliss sued Anderson and Wenner for possession of the coins.
 The trial court rejected the finders-keepers rule of treasure trove and ruled that the coins were considered mislaid
property, thus granting possession to the landowner, Wenner.
 The trial court further held that the coins were a part of Wenner’s property, and that Anderson and Corliss were
employees of Wenner.
 Corliss appealed. 
Holding:
 Personal property embedded in the soil is the property of the land owner, and gold coins fall into this category.
 The rule of treasure trove is inconsistent with our values and traditions.
 The modern trend is strongly against recognizing the finders-keepers rule of treasure trove, and this rule has never been
adopted in Idaho.
 Landowners have a reasonable expectation of possessory interest in any object uncovered on their property.
 Possession of personal property buried on private land is awarded to the owner as a matter of law.
 In this case, because the coins were uncovered on Wenner’s property, Wenner has the right to possess the coins.
 The trial court’s ruling is affirmed. 
19) Benjamin v Lindner Aviation
Rule of Law:
  Under the common law, property is mislaid when it is intentionally placed or concealed by an owner and later forgotten, and
the property belongs to the owner of the premises where the property is found.
Facts:
 State Central Bank (Bank) (defendant) repossessed an airplane and took it to Lindner Aviation, Inc. (Lindner) (defendant).
 Lindner employee Heath Benjamin (plaintiff) discovered approximately $18,000 concealed in the plane’s wing during
inspection.
 Benjamin sued for money. The district court determined that the statute only applied to “lost” property and the property in
question was mislaid.
 Thus, the court held that the money belonged to the Bank and awarded Benjamin a finder’s fee.
Holding and Reasoning:
 Property that is intentionally concealed by the owner, who later forgets about it, is mislaid and belongs to the owner of the
premises where it is found.
 The careful placement of the money suggests that the owner intentionally left it, and it was mislaid.
 It is proper to conclude that the money was not left inadvertently and thus not lost.
 The money was not abandoned, since it is unlikely anyone would intentionally part with $18,000.
20) In re Seizure
 Similar to Benjamin v Linder aviation- but $ found in gas tank of car
 Car seized by gov b/c had been used to transport drug proceeds
 sold to buyer, hired mechanic found the money
 court held for the buyer on the ground that $ was abandoned, not mislaid.
 The culprits couldn’t reclaim without risking arrest so they chose to leave it behind
 Abandoned it belonged to buyer (mechanic was buyer’s agent)
21) Ewing v Burnet
 Adverse possession of an unimproved lot in Cincinnati, used for digging, was established when claimant paid taxes, dug sand
and gravel time to time, permitted others to do so, and brought actions of trespass against others for doing so without
permission
 The sort of entry and possession that will ripen into title by AP is the use of the property in the manner that an average true
owner would use it under the circumstances, such that neighbors and other observers would regard the occupant as a person
exercising exclusive dominion
22) Pettis v Lozier
AP not established of 8 acre wooded tract even though claimant occasionally used land for a variety of purposes through statutory
period
o Kept geese and livestock, put three packing crates as sheds for animals, planted grass and trees, gardened, built a
watering tank, set out a beehive, dumped trash, did fencing, etc.
 Lesson: Do not generalize! This would seem to be a straightforward case
 The court found that the claimant failed to meet his burden of proving actual, open, continuous, exclusive, notorious,
and adverse possession under claim of ownership for the full period of 10 years.
 The fact that the claimant testified that he intended to acquire the owner's land by adverse possession did not transform
every minor trespass into proof of hostile possession under a claim of ownership.
23) Van Valkenburgh v Lutz
Facts:
 Lutz bought two wooded lots, 14 and 15. To the west was a triangular tract consisting of lots 19, 20, 21, and 22. Lutzs would
cross this tract to get to their property
 Lutzs partially cleared tract and built brother a structure on 19
 Valkenburghs bought lots west. Bad blood developed including Lutz getting charged with criminal assault
 Valkenburghs bought lots 19, 20, 21 and 22. Told Lutz to clear all property from the lots since they now owned it
 Lutz jailed again and Valkenburghs had property surveyed and sent another letter
 Lutz agreed to removed his sheds, junk, and garden within 30 days but claimed prescriptive right to use traveled way to reach
his property
 Valkenburghs erected fence across traveled way and Lutz brought action against them for interfering
  Lutz alleged the Vs were owners of property but he had right of way over it
 Trial court ruled in Lutz favor and judgment affirmed by appellate division
 Another action commenced against L. Neighbors testified for him. V lost in trial court
 Actions were brought to compel removal of encroachment on Vs land. L said that they had acquired title by adverse possession
for over 30 years.
 To acquire title by AP not on written instrument, must be shown by clear and convincing proof that for at least 15 years there
was actual occupation under claim of title and no others are deemed.
 Essential elements of proof include that the premises are protected by substantial enclosure or usually cultivated or improved
 Court found no proof of enclosure and found that premises were not cultivated or improved
 Lutz himself testified that the shed he build he didn’t know at the time it was not on his land
 Statute requires as an essential element of proof that the occupation be under a claim of title, in other words hostile
 The garage encroachment a few inches over the boundary line also doesn’t supply proof of occupation as L himself said when
he built it he had no survey and thought it was on his own property
o Falls short of establishing he did it under a claim of title hostile to true owner
 was not under color of title
 L also previously chose to concede Vs legal title in a different case to establish his right to an easement by adverse possession
 V wins case
Dissent:
 Lutz worked the disputed land as a farm;
 the neighbors considered the land to be the property of the Lutzs;
 no one else had ever asserted title to the land prior to Van Valkenburgh.
 This evidence should make clear that Lutz intended to claim the land as his own, thus acting “under claim of title.”
 The fact that Lutz knew he did not own the land is irrelevant because, despite that knowledge, he took steps to exert control
over the property as his own.
 Lutz’s assertion in the earlier litigation that Van Valkenburgh “owned” the land is irrelevant because Lutz’s title in the land had
vested well before then, and it cannot be disclaimed without following legal formalities.
Rule:
 A party takes adverse possession of a property owned by another when he takes actual possession of it, encloses it and/or
makes improvements to it, for statutory period of years. (New York law)
 Majority believed Lutzs did not satisfy these requirements
24) Mannillo v Gorski
Rule of Law:
 A claim of adverse possession may be based on a mistaken possession, but it must also be visible enough to put the owner on
notice.
Facts:
 Gorski (defendant) and the Mannillos (plaintiffs) were landowners with property adjacent to each other.
 Prior to the Mannillos’ acquisition of their land, Gorski installed a set of steps leading to a side entrance of her home.
 These steps encroached by 15 inches upon the lot that the Mannillos later purchased.
 Upon discovering this encroachment, the Mannillos brought suit for an injunction.
 The trial court determined that even though her possession was “exclusive, continuous, uninterrupted, visible, notorious and
against the right and interest of the true owner" for more than twenty years, Gorski did not acquire the fifteen inches by adverse
possession, because Gorski did not possess the hostile intent required by New Jersey law.
 The court granted the Mannillos an injunction. Gorski petitioned for certification to the Supreme Court of New Jersey.
Issue:
 May a claim of adverse possession be based on a mistaken possession?
Holding and Reasoning:
 A claim of adverse possession may be based on a mistaken possession, but it must also be visible enough to put the owner on
notice.
 The trial court was correct that Gorski’s possession was exclusive, continuous, uninterrupted and against the right of the true
owner.
  It was incorrect in concluding that, because the possession was due to Gorski’s mistake, it lacked the necessary hostility, or that
Gorski had shown that her possession was visible and notorious.
 On the matter of mistaken possession, the Maine doctrine requires an adverse possessor to deliberately take the property in
question, which rewards a person who takes property with premeditated hostility while penalizing someone who makes an
honest mistake.
 The alternative Connecticut doctrine does not inquire into the motives of the possessor. This is the superior approach.
 It is time to eliminate the requirement that possession be openly hostile.
 Any entry and possession for the required time that is exclusive, continuous, uninterrupted, visible, and notorious may support
a claim of adverse possession, even if it was the result of a mistake.
 On the other hand, to give an owner the opportunity to bring a claim to recover adversely possessed property, the possession
must be visible and notorious, which means the owner must know about it.
 If an encroachment on a small area is not immediately apparent, a court cannot presume that an owner has actual knowledge of
it.
 However, even if the possession is not sufficiently open to put the owner on notice, an innocent adverse possessor might not be
able to relinquish the property without great expense or difficulty.
 In that case, the true owner might be required to turn over the land in exchange for fair market value.
 Here, there was sufficient evidence to sustain Gorski’s claim of adverse possession except for the matter of whether it was
visible and notorious. Gorski’s encroachment onto Mannillo’s property was only 15 inches along a common border, invisible
to the naked eye, so Mannillo’s knowledge cannot be presumed.
 The case is remanded to the trial court to determine whether Mannillo had actual knowledge of Gorski’s encroachment and, if
not, whether the Manillos should be required to convey the property to Gorski and what consideration would be appropriate.
25) Anderson v Fautin
 Doctrine of acquiescence provides that long acquiescence is evidence of an agreement between parties fixing the boundary line
 But, in some states, the statute won’t run if encroacher failed to pay property taxes as required by AP statutes
26) Howard v Kunto
Rule of Law:
 Adverse possession occurs when a person takes actual possession of property that is uninterrupted, open and notorious, hostile
and exclusive, under a claim of right for a statutorily specified period of time, tacking allowed when privity
Facts:
 In 1932, McCall had a house on some land. His record title erroneously described his tract to be the 50-foot tract immediately
to the west of his.
 This erroneous deed passed several times over the years, including to Miller.
 Miller built a dock on the misdeeded property. In 1959, Miller conveyed the erroneous deed to Kunto (defendant), who took
possession of the mis-described plot of land.
 In 1960, Howard (plaintiff) ordered a survey of the area and discovered that he and several of his neighbors were occupying
plots of land that were not the plots described in their respective deeds: Howard actually owned record title to the land
occupied by Moyer, and Moyer owned record title to land occupied by Kunto.
 Howard and Moyer conveyed their record deeds to each other, which resulted in Howard holding record title to the land
occupied by Kunto.
 Howard then brought suit to quiet title on the land occupied by Kunto (record owned by Howard) in Howard.
 Before this time, no one had ever challenged the ownership of the land that Kunto occupied.
 The trial court held that Kunto, having occupied the property for less than a year, had not satisfied the requirements for adverse
possession, and thus the land belonged to Howard. Kunto appealed.
Holding and Reasoning 
 For adverse possession purposes, possession is sufficient when the property is used in a manner that is ordinary and natural
given the nature of the property.
 Here, the property is a summer home, so living on the property year-round was not required to establish adverse possession.
 In meeting the time period requirement for adverse possession, successive owners of a property may add their occupancy times
together where they share privity in the ownership interest.
 Because each purchaser in this case believed himself to have the appropriate record title to the plot of land that he occupied,
their common erroneous belief is sufficient to establish privity between them all such that their collective period of occupation
satisfies the adverse possession statute.
  The trial court’s judgment granting title in the land to Howard is reversed, and title is granted to Kunto through adverse
possession.
27) O’Keeffe v. Snyder
Rule of Law:
 The discovery rule tolls the statute of limitations if the owner of stolen personal property acted with due diligence to pursue the
property.
Facts:
 In 1946, Georgia O’Keeffe (plaintiff) noticed that three of her paintings were missing from a gallery, but she did not report the
pieces stolen until 1972.
 In 1975, O’Keeffe learned that her paintings were in a gallery in New York, and in March 1976 she brought suit in replevin
against purchaser Barry Snyder (defendant).
 Snyder impleaded Ulrich Frank, who sold him the paintings.
 Frank claimed that his father had possession of the paintings for over 30 years.
 Snyder moved for summary judgment. Snyder asserted that he was a purchaser for value, he had title by adverse possession,
and O’Keeffe’s action was barred by the applicable six-year statute of limitations.
 O’Keeffe filed a cross-motion arguing that the paintings were stolen, she had rightful title, and the statute of limitations had not
run.
 The trial court granted Snyder’s motion, holding that the six-year limitations period for replevin actions started to run at the
time of the theft.
 The appellate court reversed, granting judgment for O’Keeffe on the grounds that (1) the paintings were stolen, (2) the
limitations period was the same as the adverse-possession period, and (3) Snyder failed to establish adverse possession (which
the appellate court concluded he had the burden to demonstrate).
 Snyder appealed to the Supreme Court of New Jersey.
Holding and Reasoning:
 The discovery rule requires that the owner of stolen personal property act with due diligence to pursue the property to receive
the benefit of the tolling of the statute of limitations.
 When determining how much time a true owner has to successfully bring an action to recover stolen personal property, there
are two possible methods: (1) a statute-of-limitations rule or (2) an adverse-possession rule.
 To establish adverse possession of chattels, the possessor must show hostile, actual, visible, exclusive, and continuous
possession for the period of the statute of limitations.
 The nature of personal property makes it difficult to determine what constitutes the open and hostile possession necessary to
establish adverse possession.
 Under the discovery rule, a cause of action will not accrue until the injured party discovers, or should have discovered,
facts that form the basis of a cause of action.
 The discovery rule shifts the emphasis from the conduct of the possessor to the conduct of the owner and puts the focus
on whether the owner has acted with due diligence in pursuing her property.
 In this case, applying the discovery rule means that the statute of limitations began to run when O’Keeffe first knew, or
reasonably should have known, the identity of the possessor of the stolen paintings.
 To determine that point in time, the trial court should consider whether: (1) O’Keeffe used due diligence to recover the
paintings at the time of the theft, (2) there was an effective method at the time for O’Keeffe to alert the art world of the theft,
and (3) registering the paintings would put a reasonably prudent purchaser on notice as to the true owner.
 Accordingly, the appellate court's judgment is reversed, and the case is remanded for further proceedings.
28) Scherer v Hyland
 Court found valid constructive delivery when a donor endorsed a check, left it on the table in her apartment which she shared
with donee, along with a note giving it to donee, and then left and committed suicide
 Under traditional rule, no gift and delivery wouldn’t be recognized. This case shows how that rule is eroding and allowing for
constructive and symbolic delivery
29) Hock v Jeremiah
 Brother and sister were joint owners of a safe deposit box. Robert handed Joan four bearer bonds and said I give these to you.
Robert put other bonds, etc. in the box over the years. There was a note by Robert indicating that upon his death the contents
belong to Joan
 Court held that the only gift were the four bonds hand-delivered to her (actual delivery)
30) Newman v Bost
 Facts:
o Van Pelt died intestate with no children. in final weeks of his life, summoned Newman (housekeeper of 10 years,
romantic connection) to his bedside
o Gave her keys and proclaimed he wanted her to have everything in his house
o One of the keys was to a locked bureau containing a life insurance policy worth $3k
o VP’s house also contained other furniture, property, including property in Newman’s bedroom
o VP’s house had once had a piano that he referred to as Newman’s piano. Piano was insured, burned down, VP
collected insurance on piano. Indicated he planned to buy Newman a new one, but never did
o Upon VP’s death, Bost (administrator of estate) took possession of everything including insurance policy, property,
and sold everything
o Newman sued, claiming property was a gift to her. Jury found for Newman, Bost appealed
 Holding:
o a gift of “all personal property in the house” is not effectively delivered by handing over keys to different rooms of
the house
o physical delivery is required if appropriate and not impracticable i.e. not too large or heavy.
o the handing over of keys only accomplished constructive delivery of items that were incapable of physical delivery
o necessary to analyze this for each item allegedly gifted
o bureau- large and heavy, did not need to be manually delivered and the delivery of the key constituted constructive
delivery. So, Newman owns bureau.
o But insurance policy inside small and transportable, therefore not a valid gift because not physically delivered .
o Items in Newman’s bedroom hers- purchased for her and placed in her personal bedroom for private and exclusive
use. Newman entitled to compensation for their value.
o Other furniture in the house not in Newman’s room, if they weren’t too large for manual delivery or didn’t need to be
locked or unlocked by keys, those remained property of the estate.
o the piano- not sufficient evidence, remanded so Newman may attempt to present evidence. probably not seeing as
how when it burned, VP took insurance money not her and bought a new piano.
31) Gruen v Gruen
 Facts:
o Victor Gruen sent a series of letters to his son, Michael (plaintiff), indicating his intention to give Michael a
valuable painting for his 21st birthday.  
o Victor did not deliver the painting but kept it in his multiple residences. The painting was to be given to
Michael upon Victor’s death, with Victor holding a life estate in the painting.  
o Michael acknowledged the gift to his friends and associates and held both letters for over 17 years to verify the
gift after his father's death.  
o Upon Victor’s death, Victor’s wife and Michael’s stepmother, Ms. Gruen (defendant), refused to give Michael
the painting. Michael then brought this action.  
o The special term court determined that by retaining a life estate in the painting, Victor invalidated the gift.  
o Michael appealed. The Appellate Division found that a gift is valid even if a life estate is retained in the gift.  
o Ms. Gruen petitioned for certiorari to the Court of Appeals of New York. 
 Holding and Reasoning:
o To make a valid inter vivos gift, (1) the donor must intend to make a present transfer, (2) either actual or
constructive delivery of the gift must occur, and (3) the donee must accept the gift.  
o If the donor's intention is to make a testamentary disposition effective only after death, the gift is invalid unless
made by a will.  
o Under the second element, either physical delivery of the subject of the gift or a constructive or symbolic
delivery is sufficient to divest the donor of ownership of the property.  
o Regarding the third element, if a gift is of value to the donee, the law presumes an acceptance on
the donee's part.  
o Michael provided clear and convincing evidence for each element.  
o Victor's letters established an intent to make a present transfer of the painting on Michael's 21st birthday.  
o The fact that the painting wasn't physically delivered does not matter; Victor's letters gave Michael title to the
painting with a right of possession upon his death.  
o Michael acknowledged the gift to his friends and associates and that he both letters for over 17 years to verify
the gift after his father's death.  
 o This also demonstrates that the gift was of value to Michael.  
o Since there was a valid inter vivos gift, Michael is entitled to the painting.  
o To consider:
if letter had said “I will give it to you when I die, it becomes a will and not a gift.
o but saying he gives it retaining possession for his life, this constitutes present ownership. a life estate in victor,
a remainder in Michael.
32) Maffe v Loranger
 Facts:
o Jay Maffe (plaintiff) proposed marriage to Heather Loranger (defendant).
o Maffe presented Loranger with a $132,000 engagement ring.
o Immediately before the civil marriage ceremony, Maffe informed Loranger that he would not marry without a
prenuptial agreement.
o The couple postponed the ceremony and began negotiating an agreement. got married abroad with plans to
eventually get married legally
o The negotiation lasted for two years, during which time the couple broke up and reconciled their relationship
multiple times.
o Loranger permanently ended the relationship. Maffe filed an action against Loranger in Connecticut state court
to recover the engagement ring.  
o Maffe claimed that the ring was his property because he had given the ring to Loranger on the condition of
marriage.  
o Loranger claimed that she was entitled to the ring because their failure to marry was Maffe’s fault.  
 Alternatively, Loranger asserted as a defense that the engagement ring had transformed into an
unconditional, absolute gift because she offered to give it back when they first broke up and he told
her no, to keep it.  
o Loranger introduced into evidence a letter that Maffe had sent in which he admitted to causing the
deterioration of their relationship because of his own insecurities.
o Maffe also admitted to being at fault during his testimony at trial. Loranger also introduced evidence that after
the couple’s first breakup, Loranger offered to give Maffe the ring, but Maffe instructed her to keep it.
 Holding and Reasoning  
o The donee of an engagement ring is entitled to the ring upon the parties’ failure to marry if she is not at fault
for the failure or if the ring transformed into an unconditional gift.  
o Historically, the fault standard has been applied to consider the status of an engagement ring upon a couple’s
failure to marry.  
 Under this standard, the donee does not need to return the ring if the donor breached the promise to
marry.  
o However, recently Connecticut and other states have begun applying a modern no-fault approach to determine
the status of the engagement ring.  
 Under this approach, the court must consider whether the condition of marriage was attached to the
engagement ring.  
o If the court finds that the ring was given on the condition of marriage and the couple fails to marry, then
the donee must surrender the ring.  
o However, if the court finds that the ring was an unconditional gift constituting the transfer of property without
consideration, then the donee is entitled to the ring.  
o Connecticut and other states have held that a conditional ring may transform into an unconditional gift.  
o a Connecticut court found that a conditional engagement ring transformed into an unconditional gift because
the donor had abandoned the condition of marriage by not pursuing marriage for six years.  
o Here, the standard to apply does not need to be determined, because Loranger is entitled to the ring under both
approaches.  
 Maffe’s letter and testimony indicate that he is at fault for the couples’ failure to marry.  
 Additionally, even if Maffe attached the condition of marriage when initially giving Loranger the ring,
the ring transformed into an unconditional gift when Maffe allowed Loranger to keep the ring after
their first breakup, despite the couple’s failure to marry.  
o Thus, Loranger is entitled to the engagement ring. 
33) Knopf v. Gray
 Facts:
o Allen devised her land through a will bequest to her son, Bobby
 o Bobby contended that the bequest unambiguously vested in him a fee-simple interest in the land
o Allen contends that it was a life estate
o Wording: I leave to you everything…understand the land is not to be sold but passed on down to your children…take
care of it and try to be happy”
o Because Bobby believed he had received a fee simple interest, conveyed land in fee simple to Polasek Farms
o Bobby was sued, seeking declaratory judgment that Allen devised only a life estate to Bobby, precluding him from
delivering greater interest (fee simple) to Polasek
o Trial court found that instructional language “land is not to be sold” was an invalid disabling restraint and that the will
vested Bobby with a fee simple. Summary judgment to Ds.
o Affirmed by appellate court, concluding will’s language regarding land be “passed on down” was an instruction to
Bobby rather than a gift to the children
 Holding:
o if will provision is ambiguous, court will seek to ascertain testator’s intent by looking to the will’s language,
considering provisions as a whole and attempting to harmonize to give effect to will’s intent
o if clear meaning, must be construed as a matter of law
o if ambiguous, summary judgment is inappropriate. could be subject to more than one reasonable interpretation
o unless evidence that there was legal help, interpreted as a layperson would use words
o Disagreement here: did Allen intend to devise a fee simple or a life estate.
 a fee simple is limited by express words
 no specific words to create a life estate
o thus a will creates a life estate where the intention manifests intention to pass to grantee a right to possess, use, or
enjoy during life.
o here, clearly a layperson’s intent was to create a life estate
 don’t sell, take care, pass to children = essence of life estate
 grandchildren designated as remainderman
o reversed and remanded
o nature of granted interest needs to be resolved before determining whether a restraint is valid
 here, a life estate had restraint on remainder interest and therefore was valid as a restraint when construed as
life estate as Bobby could not sell a fee simple when he had a life estate and remainderman designated by
grantor.
34) Baker v. Weedon
 Facts:
o Weedon’s will bequeathed all property to his wife Anna for life.
o Remainder interest to any children Anna may have and if none, to his grandchildren if she died without issue
o Expressly did not provide for children- bad relationship
o He died, Anna continued to live on farm. Remarried, but no children
o Mississippi Highway Dpt sought right of way through farm, grandchildren contacted and made aware of interests as
remainderman
o Anna now aged, destitute. Grandchildren allowed her to receive large proportion of amount paid for right of way
o Anna then sought order to permit her to sell farm except the house contending it was necessary for her support to live
o The property negligible value agriculturally, although substantial and increasing value commercially.
o Grandchildren opposed sale
o Chancellor in equity court noted age, value, and approved sale
o Grandchildren appealed, challenging right of court to order sale of property in which they held a future interest
 Holding:
o A court can order sale of property subject to a future interest, BUT only if necessary for best interests of both life
tenant and remainderman
o The farm increasing in commercial value, would be significant financial loss to remainderman
o Remanded so Anna can make motion to sell only enough of property to provide adequate support for her or another
satisfactory compromise between her and grandchildren
o usually if a property subject to future interest is diminishing in worth, court will permit sale as this will eventually
prove detrimental to best interests of remainderman and life tenants.
o a court of equity has the power to order judicial sale of land affected with a future interests where it is necessary for
preservation of all interests in the land
35) Paul Smith’s College of Arts & Sciences. Roman Catholic Diocese of Ogdensburg
  Facts:
o Hotel transferred property to Church for use as a church and if use ceased, conveyance would be void and grantor
would have right to reenter
o Paul successor to Hotel, asserted that it was the owner of property in fee simple once the property was ceased to be
used as a church
o Paul placed no trespassing signs after ceasing to use as church and commenced action seeking that it owned property
in fee simple
o Church counterclaimed that it owned property in fee simple. cross movement for summary judgment
o Trial court found that Hotel had conveyed to the church a fee simple subject to condition subsequent and reserved
right of reentry, but that right had been extinguished when deed was transferred to Paul.
o summary judgment granted to Church and held lawful owner of property
o appealed.
 Holding:
o the transfer of deed did not invalidate the possibility of reverter held by Hotel, passed down to Paul
o reverted to Paul, who now owns property in fee simple
36) Mountain Brow Lodge v. Toscano
 Facts:
o Lodge acquired property by gift deed from Toscano
o in the deed was clause that restricted use and ownership to the Lodge
o Upon violation, property was to revert to Toscano’s estate
o Lodge sought a ruling that restrictive condition was void as a restraint against alienation and therefore they owned
property outright
o Trial court held conditions not void, refused to quiet title
o Lodge appealed
 Holding:
o limitations on use of property, though they might impede transfer, not void as a restraint against alienation
o the part of the clause limiting use of property to Lodge is valid
o But, the language that expressly restricts sale or transfer is impermissible restraint against alienation
o affirmed as modified
o some other jurisdictions have found that a use restriction does effectively limit alienation of property and is void as an
impermissible indirect restriction on alienation
37) Ink v. Canton
 Facts:
o Ink granted Canton City 33 acres of land
o Deed stated it could only be used for a public park. if used otherwise, land would revert to Ink’s heirs
o OH took all but 6 acres for highway project
o courts awarded all eminent domain damages to Canton
o Heirs of Ink appeal
 Holding:
o When a land restricted by a deed is taken by eminent domain, a court shall divide the eminent domain damages between
owner of fee and holder of right of reverter
o The general rule is that a grantee who holds land for restricted use subject to a reverter is entitled to keep the full amount of
compensation if the land is taken by eminent domain, but the court here declined to follow the general rule.
o common law was that all eminent domain would go to grantee of deed (City) and holder of reverter would receive
nothing.
 many jurisdictions refuse to apply this harsh rule
o OH instead recognized that the eminent domain doesn’t force a reversion to Ink’s heirs, but City must use damages
award solely for maintenance of remaining acres of the park
o if the award exceeds City’s maintenance costs, the City should turn excess to holders of the right of reverter
o most jurisdictions respond similarly and eschew the common law rule in favor of a more equitable result
38) Riddle v. Harmon
 Facts:
o Riddle’s wife, decedent, owned real property in joint tenancy with Riddle
 o when planning estate, didn’t want her interest to pass to Riddle
o attorney advised her to terminate joint tenancy by granting herself an undivided one-half interest in the property-
making her a tenant in common
o grant deed drawn up to that effect and a will devising her tenancy in common to a third party
o Riddle, when wife died, challenged this and trial court quieted title in him
o Wife’s estate appealed
 Holding:
o a joint tenancy can be terminated by the conveyance of on joint tenant of her interest in the joint tenancy property to
herself
o at common law, creation of joint tenancy required four unities: interest, time, title, and possession
 both tenants acquire interest at same moment, which requires that one party holding the whole had to convey
interest to third person (straw man) who would convey to the joint tenants in order for party to create joint
tenancy between himself and another
o modern law abandoned this obsolete requirement as to creation
 little virtue in adhering to cumbersome feudal law requirements
o one joint tenant may unilaterally sever the joint tenancy without use of intermediary (straw man)
o Analysis
 a purchaser of interest in property from a joint tenant becomes a tenant in common with the other joint
tenants (if more than one, they remain joint tenants to each other)
 jurisdictions not requiring reconveyance to a straw man for severance permit termination of a joint tenancy
by filing declaration of intention to do so, eliminating needing to convey to sever
 A question still left to be resolved is whether there is a requirement for one partner to notify the other
partners of the severance.
 For example, what would have happened if Mrs. Riddle wrote out a document selling her
interest to herself, didn't tell anyone, and Mr. Riddle died first?
 Since Mr. Riddle (and everyone else besides Mrs. Riddle) believed that a joint tenancy was
still in effect, his property interest would have automatically transferred to Mrs. Riddle, even
though she was not technically entitled to it.
 Lack of notification requirements makes it easy to commit fraud by keeping the severance a
secret from the other partners!
 Of course, the change in status must be reported to the Recorder of Deeds (for tax purposes),
so the other joint owners could always periodically check to see if the status has changed.

39) Harms v Sprague

 Facts:
o William and John Harms owned property in joint tenancy
o John executed a mortgage to Simmons, who assigned his interest to Sprague
o John died, William contended that mortgage died with John and brough action to quiet title
o Trial court held that Sprague’s mortgage survived John’s death
o Appellate court reversed and Sprague appealed
 Holding:
o a mortgage on a joint tenant’s interest does not survive the mortgage
o a requirement for joint tenancy is unity of title
o if a mortgage constituted a change in title, it would destroy unity
o but this state recognized a mortgage does not constitute change of title until foreclosure plus running of redemption
period
o mortgage does not sever joint tenancy, therefore entire estate of decedent join tenant passes to survivor and effects a
nullification of any liens
o Sprague’s interest extinguished on John’s death- affirmed
o think about lien v title theories. mortgages have been seen both as transfers of title and encumbrances (liens). most
jurisdictions adhere to lien theory.
o some jurisdictions hold that surviving joint tenant would have to take on the joint tenant’s interest subject to mortgage
because it is fair to mortgagee, who would otherwise lose the financial security in the transaction
 think: institutional lenders probably not going to extend credit to one joint tenant. casual lenders may not
understand or be aware.
40) Delfino v Vealencis
 Facts:
o Delfino (P) and V (D) owned land as TIC
o P had 99/144 interest and D 45/144 interest
o P not in actual possession of property
o D. lived on land and operated trash removal business (no trash stored on property)
o P brought action for partition by sale, proceeds distributed according to parties’ interest
o D moved for partition in kind
o Trial court: partition in kind not practical, would result in material injury, more equitable for partition by sale
o D appealed
 Holding
o a partition by sale should only be ordered where a partition in kind is impracticable or inequitable and interests of parties
are better suited by sale
o here, partition in kind feasible as you could keep subdivision plans, trash didn’t involve storage, and selling would force D
out of home she had made for herself on property-which would impact her income
o *exceptional-most courts influenced by reduction in value. protective of her homestead? compare Johnson
41*) Johnson v Hendrickson
 Facts
o Kate married to Henry, three children
o Henry died- 1/3 his land to Katie and 2/9 to each of children
o Katie remarried Karl, had two children
o remodeled home, constructed new buildings including barn/hog house (>$9k)
o original children still on property, made substantial contributions to family income
o Katie died- leaves ½ land to Karl and ¼ to each of K’s sons.
o original 3 children sue, contending land can’t be physically divided and asking it be sold as one tract
o K and sons claimed they were entitled to compensation for improvements made on property
o court ordered land sold and said compensating K and sons would be inequitable- K and sons appealed
 Holding:
o courts can order partition by sale to preserve property value and
o may compensate a cotenant for improvements made on property to ensure equity
o a partition in kind here would create one parcel to each original kid and one to K and sons
 but this would depreciate value of property
o so, court correct in ordering partition by sale
o original three made financial contributions for improvements, benefiting K and sons
 court correct that compensating K and sons inequitable
o didn’t take into account K and sons subjective interest (remain at homestead) or economic interest
41) Spiller v Mackereth
 Facts
o M (P) and S (D) owned building as TIC
o their tenant vacated, Spiller took property for warehouse
o M sent letter demanding S vacate or pay M half rental value-S refused, M sued
o trial court found for M and awarded rent from S, S appealed
 Holding:
o TIC each own undivided interest in whole property-each has right to enjoy using full property without paying rent
o but one cotenant must honor demand from another cotenant who wants to use property too
o if cotenant asserts property to deprive cotenant of his rights, this is an ouster
o ousted cotenant entitled to compensation for his interest
o letter not sufficient to prove an ouster, M not prevented from coming onto premises
o w/o ouster, no obligation for rent. reversed.
o some JDs view a cotenant in exclusive possession must pay rent even without ouster
42) Swartzbaugh v Sampson
 Facts
o Mr and Mrs S owned property as JT with right of survivorship
o Mr, over Mrs objection, leased portion of property to Sampson- he constructed boxing pavilion
 o Mrs sued to cancel lease, lost, she appealed
 Holding
o if a JT leases out his interest, the lease provides the lessee with as much interest as JT had, the cotenant retains her interest.
o so, lease is valid, there can’t be nullity
o A joint tenant, during the existence of a joint estate, has the right to convey or mortgage his or her interest in the
property, even if the other joint tenant objects.
o no evidence of AP
o Mrs could attempt to prove ouster if Sampson resister her attempt to enter, then she could be entitled to one-half rental
value, but not removal
 she could try partition, but this would give her less than what she had
43) Sawada v Endo
 Facts
o Sawadas injured in car accident with Endo
o Endo, before accident, owner as TBTE with wife
o after, deeded land to their sons
o Sawadas awarded judgment, tried to gain satisfaction, brought suit to set aside Endo’s transfer to their sons
o trial court against Sawadas, they appealed
 Holding:
o The interest of one spouse in a tenancy by the entirety is not subject to the claims of that spouse’s individual creditors.
o A tenancy by the entirety is based on the unity of the married couple and their ownership in property is likewise united as one.
o As a result, creditors of only one of the two married individuals may not reach marital property that is a tenancy by the entirety.
o Thus, in this case, the Endos’ transfer of land is not fraudulent and is valid.
o In fact, even if the Endos had not transferred the land, the Sawadas would not have been able to stake a claim to the land because
their claims were to Mr. Endo only, and not his wife. As a result, the property as a tenancy by the entirety is not subject to the
Sawadas claims.
o The land transfer to the Endos’ sons is valid
o An estate by the entirety is not subject to the claims of creditors of only one of the spouses because neither spouse acting
alone can transfer his or her interest.
 Dissent
o woman has TBTE equal to man, but court shouldn’t take away man’s right. just add to woman’s
o because, now neither spouse can alienate their interests in TBTE
o both spouses should have equal right to a alienate their individual interests, so each spouse’s individual interest should be subject
to individual’s creditors
44) In re Marriage of Graham
 Facts:
o parties married, Mrs. worked as airline stewardess
o Mr. worked part time, completed MBA
o trial court said spouse’s education is jointly held property and thus subject to equitable distribution
 Mrs. awarded money in monthly installments, Mr. appealed then Mrs appealed
 Holding
o upon dissolution of marriage, property is not so broad as to cover degrees
o degrees are personal, terminate on death, can’t be given away
o her support could be taken into consideration if there were property
45) Mahoney v Mahoney
 Mr. filed for divorce. He had gotten MBA during marriage and not contribute to income
 Mrs sought reimbursement for support while he got MBA
 trial court granted Mrs. request and held education/degree subject to equitable distribution
o not value of degree, but that Mr reimburse $5k to her- she appealed, then he did
 Held: individual’s degree not subject to equitable distribution upon divorce-not property
 represents potential enhanced earnings, not a guarantee.
 reimbursement alimony- for financial contributions to spouse’s educational efforts
o she helped with intent that degree would benefit them both
46) O’Brien v O’Brien
 Mrs worked while Mr got med school degree
 she was awarded part of estimated value of medical license, he appealed
 medical license is marital property if acquired during marriage
o not property as traditional
o considers indirect/direct contribution to acquisition of something valuable
 Mrs put career on hold, worked, so she should be compensated
47) Marvin v Marvin
 Facts
o lived together without marrying for 7 years (he was married but divorce)
o orally agreed to hold out as spouse, pool efforts and assets, share fruits equally
o she agreed to give up career for domestic duties, he would support financially
o assets attained, all in his name. he then compelled her to leave house
o she sued for breach of contract, lost, she appealed
 Holding
o a couple who lives together (like married) can form agreements respect to finances/assets
o immoral only if based on performance of sex
o Mrs had claim based on express agreement- contract implied on conduct
48) Obergefell v Hodges
 Facts
o O married to same-sex partner A in state that recognized marriage
o A died of disease. death record did not record O as surviving spouse
o O sued, district court in his favor that death certificate show married
o appeals reversed, that restriction of marriage to man and woman did not violate constitution
 Holding
o 14th amendment requires recognition of same sex marriage
49) Garner v Gerrish
 Facts
o D leased house to G, using preprinted legal forms and filling in, G signed
o no definite termination date but said “privilege of termination at a date of his choice”
o D died. executor filed suit to evict G.
o trial court held lease that permitted termination at any time created termination rights for both lessor and lessee and thus
eviction lawful. G appealed
 Holding
o CL, lease with termination rights in lessee created at will termination right of lessor
o but, modernly no reason to adhere to this because it used to be tenancy at will
o now it is a life tenancy terminable at will
o for lessor to have right of termination is contrary to terms of agreement and goes against will of contracting parties
50) Shelley v Kraemer
 thirty property owners signed a restrictive covenant that no one but white were welcome as tenants for 50 years
 Shelleys, black family, bought house without knowledge of covenant
 neighbors sought to enforce, seeking to enjoin Shelleys from possession and divest of title
 court denied relief to Ps on ground that it was incomplete, not signed by everyone
 Supreme court reversed, saying it was valid and constitutional. appealed
 state enforcement of racially restrictive covenants violate 14th amendment
o equal treatment of all under law
 but what about by private actors?
o 14th doesn’t apply, people can enter into racially restrictive covenants
 But, state enforcing a rule makes it violate 14th amendment so equal protection clause is violated
51) Jones v Alfred Mayer
 Facts
o Jones sued against housing saying they refused to sell b/c he is black
o relying on 1982 statute- rights to all citizens to inherit, purchase, lease, sell, etc. real and personal property
 o complaint dismissed that 1982 only applied to state not private, affirmed, SCOTUS granted cert
 Holding
o 1982 valid to enforce 13th amendment to prohibit discriminatory conduct of private individuals
o can address all forms of racial discrimination, including housing market
52) Wetzel v Glen Community
 Facts
o W moved into living community, abused because lesbian
o informed management, didn’t act and retaliated by barring her from communal areas, attempting to evict her (15 months)
o filed for violating Fair Housing Act for not taking reasonable steps to prevent abuse, hostile home environment, and
retaliation for complaining
o Living said FHA did not impose liability on L for T on T harassment and that she didn’t show retaliation was based on
discrimination
 Holding:
o L liable for having actual notice of T on T harassment based on protected status and failing to act to prevent harassment
o FHA bars sexual orientation discrimination
o harassment was severe or pervasive enough to prevent enjoyment of home
53) US v Starrett City
 Facts
o Starrett housing development- racial distribution, so applicants sorted by race, departing tenants taken over by same race
o black applicants sued for racial discrimination
 Holding:
o FHA prohibits discrimination on race in rentals
o not only if discriminatory purpose but also if disproportionately affect minorities regardless of intent
o racial distinctions should be temporary, end goal, and based on history of discrimination
o although not fueled by discrimination, discriminatory affects
o no history of racism against white people in Brooklyn
 Dissent
o FHA to end segregation by maintaining integration
o Starrett trying to maintain integration
54) Hannan v Dusch
 Facts
o P entered into lease with D. When lease begin, P couldn’t enter b/c presence of holdover tenant
o P sued D, saying D had duty to deliver actual possession
 even though no express covenant in lease to guarantee this
 Holding
o P not entitled to damages because no express covenant
o authorities divided on this
 English
 L is under implied covenant to deliver actual possession regardless of express covenant
 L better position to know about tenant and protect against it
 fair dealing, good conscience
 American
 English rule burdensome on Ls
 requires they refrain from leasing until T vacates or be subject to legal action for wrongdoing of another
 nothing to prevent people from including express covenant
55) Ernst v Conditt
 Facts
o Ernsts owned land that they leased to Rogers
o Rogers built go-cart business and operated for one year
o Conditt bought the business
o Ernst and Rogers executed another document to extend lease and granted permission to Rogers to sublet land to Conditt, if
Rogers remained liable
 o Conditt and Rogers then executed document that Rogers sublet the premises to Conditt
o Conditt railed to pay rent, claiming not liable to Ernsts for rent
o Ernsts demanded full payment of back rent, no response, they sued
o Trial court said conveyance from Rogers to Conditt was an assignment and thus Conditt was liable to Ernsts for relief
 Holding
o a sublease is created when lessee conveys less than his full interest to another
 thereby lessee remains in privity of contract with lessor and is responsible
o but a lessee who conveys all interest creates assignment
 thereby lessee no longer in privity of estate with lessor
 lessor can hold assignee directly responsible for terms of lease
o here R retained no interest in the land so it was an assignment to C
 making C liable to E for rent and removing improvements
56) Kendall v Ernest Pestana
 Facts
o Bixler subleased hangar space from Pestana
o Bixler agreed to sell business, with lease, to Kendall
o Pestana refused to consent to assignment of lease to K
o K sued that P’s refusal to consent was unreasonable and therefore unlawful restraint on alienation
 Holding
o a commercial lessor can’t unreasonably withhold consent to assignment of lease
o traditionally clauses require L’s consent to transfer, but only if reasonable
o can’t restrain free alienation
o recognize good faith and reasonableness
57) Morgan v High Penn Oil
 Facts
o Oil operated refinery next to M’s property
o M said refinery emitted nauseating gases and odors a few days/week
o M sued for private nuisance
o Oil said its operations were legal, emissions of gas not negligent just inevitable condition
 Holding
o a party who intentionally and unreasonably commits non-trespassory invasion of another’s land can be held liable for
private nuisance even if no negligence
o they intentionally and unreasonably invaded M’s property with fumes, preventing M from use and enjoyment of the land
o Injunction warranted to abate nuisance
58) Estancias v Schultz
 Facts
o S had quiet home until E erected apt building next to property with 155 units
o one AC system, a few feet from S’s property
 unrentable apts without AC
o noise was like a jet plane- couldn’t talk in backyard, convo in home, sleep
o S sued seeking to enjoin E from operating AC unit
 Holding
o to decide if injunction is appropriate, must weigh injury to P and D/public
o S suffered substantial injury in loss of enjoyment of home, likely to continue if injunction not granted
o no evidence of apt shortage so that public would be affected by loss of complex
o evidence that cheaper to have one unit and install individual, so this would be substantial expense
o weighing factors, should be injunction.
59) Boomer v Atlantic Cement
 Cement plant with neighbors that sued for nuisance because of pollution
 injunction entitled that would be lifted once permanent damages paid
 permanent injunction not awarded because D’s operations provide economic benefit
o no cleaner method of cement production, therefore unfair to enjoin Atlantic
 o the damages from the nuisance were less than the economic benefit derived from party causing harm
 consider: was there really an injunction?
60) Spur Industries v Del Webb
 retirement community being developed on plot next to raising cattle company
o note: purchase after the cattle co was already there
 Webb sued Spur because smell of cattle a nuisance for enjoinment
 Spur held to cease, but entitled to compensation
 if public develops land in vicinity of public nuisance, action must cease, but they are entitled to compensation
 public nuisance because smell so bad, probably public health issue because of flies
61) Willard v First Church of Christ
 Facts
o G owned two adjacent plots of land, a small office building on one and a parking lot on the other
o G allowed Church to use lot during church services
o G sold office building, retained parking lot
o purchaser of office sought to resell. buyers wanted to buy parking lot
o purchaser of office bought from G in order to sell both to buyers
o G sold land to P, but in deed created easement for church to use property during church services
o buyers found out about easement months later, brought action to quiet title
 Holding
o church entitled because G created easement and a grantor can reserve interest in land for use by TP
o deed was properly recorded, therefore buyers on notice
o church uses lot during church, so buyers not too prejudiced
62) Mund v English
 Facts
o P and D (and D’s husband) purchased two adjoining parcels of land
o drilled well on D’s property, installed equipment so both parties got water from well
 shared expenses
o relying on receiving water from well, P built residence on land with no other source of water
o P claimed parties agreed to permanent access
o D claimed it was just a revocable license
 Holding
o license based on oral promise becomes irrevocable when licensee makes valuable improvements to land on basis of
promise
o injustice would result if license revoked
o no written evidence of intent, but conduct suggests intent for permanence- cooperated in building, shared expenses
63) Van Sandt v Royster
 Facts
o Laura owned three plots. She built a house, connected to public sewer system by pipes running under other two lots
o She sold lot to Jones, who knew about sewer and connected his house to line
o Van Sandt basement flooded when Royster would flush, sued for enjoinment
 holding
o owner does not have easement in own property- but a quasi-easement when L uses one part of property to benefit another
o if owner conveys dominant tenement, easement goes with it if apparent, continuous, necessary
o they were apparent, V should have known, enjoined from impeding R from using sewer line
64) Othen v Rosier
 Facts
o R had lots of land. O’s land didn’t connect to public road, so to access it was on border of R’s property, a path through R’s
property
o R concerned about water patterns, constructed levee which blocked road and made path unusable
o O sued R, saying he blocked his right and asked court to remove and enjoin R from depriving him of using the path
 Holding
 o easement by necessity?
 created when owner of estate conveys portion of his land, but reserves for himself use of part of conveyed land
 easement holder must show, at time of conveyance, it was necessary for ingress and egress
 no evidence of this
o easement by prescription?
 similar to AP
 but owner had knowledge/implied at least granted consent
 all parties used land
 so it was a license, which can’t turn into easement by prescription
65) Tulk v Moxhay
 Facts
o T owned a plot of land with houses and garden
o sold portion to E, conveying portion in fee but containing a covenant stipulating the garden must be maintained and no
houses build there, binding E and his heirs, etc.
o E conveyed land to M, whose deed didn’t contain same covenant, although he had knowledge of it
o T sought injunction to prevent M from disturbing garden
 Holding
o a party purchasing real property may not receive rights to property greater than those owned by seller
o M’s purchase is in direct line with E’s ownership interest, with clear covenant attached that M knew about
o inequitable to permit E to sell property he knew to be burdened and receive compensation as though land were clear
II. Law

Acquisition by Find

1. General Rule:

 An owner of property does not lose title by losing the property

 An owner’s rights persist even though the article has been lost or mislaid
 A finder has rights superior to everyone but the true owner
o Exceptions to this rule!

Armory v Delamirie: Chimney sweep finds a jewel and takes it to goldsmith to have it appraised. The goldsmith’s
apprentice/goldsmith refuse to give it back, saying that Sweep does not own it. Sweep is entitled to recover from the goldsmith
either the jewel or full money value of the jewel. The prior possessor has superior right.
 Armory sued for trover: a legal action to recover chattel (personal property, tangible, movable) unlawfully
appropriated by another, or its value at the time of its appropriation.
 Trial court found for Armory. Defendant appealed. Judgment was affirmed
 A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced
against anyone except the true owner of the chattel. 

A) Prior Possessor Wins

The rule that prior possessor wins over subsequent possessor is fundamental.
Applies to both personal property and real property

Why?

 Prior possession protects an owner who has no indicia (papers, etc.) of ownership
o NOTE: possession does not equal ownership.
o Ownership is “title” to the property and can usually be proved by showing documents.
o Possession is proved by showing physical control and intent to exclude others.
o Possession is easier to prove. An owner always wins against a possessor.
 Entrusting goods to another is an efficient practice
o In Armory, the jeweler is a bailee and must surrender goods to a prior possessor
 Bailee: someone to whom a bailor gives possession of personal property under the terms of an
express or implied agreement
 Bailor: one who gives possession of personal property to a bailee for care or safekeeping
 The Winkfield: Postmaster was bailee for letters on a ship. Another ship was liable for
crashing into ship where letters where and destroying them. Postmaster sued for damages
and it was upheld that as bailee he had a claim.
o Cited for almost universal rule that the bailee is entitled to recover the full value
of goods
o The bailee may recover the full value of the lost chattel, holding in trust for
bailor the amount of recovery beyond his own interest
o The wrongdoer, having paid full damages to bailee, this bars an action by TO
against present possessor if bailee has recovered from present possessor
 Someone loses out if bailee is gone- think Armory. If true owner shows
up, but sweep has taken off, who do you rule for? Is goldsmith liable
again to true owner or does true owner lose out?
o Imagine not getting clothes back from the dry cleaners unless you could prove ownership
 Prior possessors expect to prevail over subsequent
o By these expectations, law reinforces the popular belief that the law is just
o Prevents people from stealing and hoping law will protect them
 The protection of peaceable possession is ancient policy
o Deters disruptions in the public order
 Protecting a finder who reports
o Rewards honesty
o Rewards labor in returning a useful item to society

B) Relativity of Title

-In Armory, the title to the jewel is relative to who the claimants are.
-If owner of jewel prevails over A, the finder, the finder prevails over a subsequent possessor.
-If A, after finding jewel, loses it, and B finds it, would B prevail over A/ No. A’s rights are not lost by losing the
article. But A does not prevail over owner of the jewel.

C) Prior Possessor a Trespasser

The “prior possessor wins” rule applies to objects acquired through theft or trespass

If A steals a jewel and hands to B, who refuses to return it, B is liable to A.

B cannot question A’s title or rightful prior possession if B is merely a subsequent possessor.

*To rule in B’s favor would not likely deter crime, but immerse owners and prior possessor in costly litigation
with subsequent possessors to prove they are not thieves

*Anderson v Gouldberg: A logger logged illegally from third party and went to sell to Gouldberg. The
company took the property. Anderson filed for return of possession or value. Verdict in Anderson’s favor. Gouldberg
appealed.

 May one in possession of illegally acquired property assert a claim for replevin against a subsequent possessor?
(replevin: A suit to recover personal property wrongfully obtained by another.)
 Yes. Doctrine from Armory holds that actual possession supports a title superior to anyone other than true
owner.
 Gouldberg lost on appeal
 Any other rule would lead to an endless series of unlawful seizures
 However, today often court sides with subsequent honest possessor
 Replevin: a suit to recover personal property wrongfully obtained by another
o To maintain replevin, plaintiff’s possession must have been lawful

*More recent example: Payne v TK Autowholesalers

 Court held that thief using a stolen identity has a legally protected possessory interest in stolen goods
 D) What Constitutes Possession

For a finder to become a prior possessor, must acquire physical control and have intent to assume dominion

Eads v. Brazelton: Brazelton discovered a shipwreck in Mississippi River. Had sank and been abandoned some
27 years before. B attached a temporary buoy, didn’t return. 9 months later, Eads found wreck and salvaged.
 Eads prevails because Brazelton has not shown sufficient acts of physical control
 Possession is like capture. If you find a gold coin, you can’t just notice it. You must pick it up, put your
foot over it, etc. If you are absent-mindedly kicking it down the street, another person could intercept and
take it because you haven’t shown intent to assume dominion
o Exception: Constructive possession will sometimes substitute for actual possession

E) Constructive Possession

A person is in constructive possession when the law treats him as if he is in possession although he is not or is unaware
of it.

A fiction that allows judges to each desired result

Owner or occupant of premises may constructively possess something on the premises of which he is unaware.

South Staffordshire Water Co. v. Sharman: Sharman hired co to clean out pool and SSW found rings at the
bottom embedded in mud. The rings were found to belong to Sharman, even though Sharman was unaware of the rings.
This case also shows agent relationship to employer.
 When a lost item is found upon property over which the property owner exercises exclusive control, ownership of the lost
item vests in the property owner as opposed to the finder.

2. Finder v Owner of Premises

Often the finder will claim an object, and so will the owner of the premises where object is found
-assuming owner of premises does not own the object. If he does, he prevails over finder)
-owner will claim actual, or constructive, prior possession

a) Finder is a trespasser

If trespasser, owner of premises always prevails

This discourages trespass and unauthorized entries

b) Finder is employee

 Sometimes, held that employee can keep the object

 Often courts reason that an employee is acting for an employer
 Often emphasized that employee has contractual duty to report the object
 Ruling changes jurisdiction to jurisdiction

Jackson v Steinberg: Maid found money concealed in a hotel room. Turned into manager. Sued for return. Found to be
mislaid money and the rights went to the hotel owner as the maid has a duty to report them

Erikson v Sinykin: Interior decorator found money considered to be abandoned. Had no duty to report find to employer.

South Staffordshire Water Co. v Sharman

c) Finder is on premises for a limited purpose

For example, cleaning to a stopped sewer drain. Could be said that the owner gave permission to enter for this limited
purpose. Therefore, owner entitled to objects found.
South Staffordshire Water Co. v Sharman

d) Object found under the soil

If found like this, awarded to the owner of the premises.

Owners of land expect that objects under the soil belong to them, as if part of land itself

Elwes v Brigg Gas Co: a gas company that had leased the mineral rights to property found an ancient boat while
excavating the land.  

 The court held that the boat clearly belonged to the property owner, who owned and exercised control of
the property at all times.  

Exceptions:

1) Treasure trove: gold, silver, money intentionally buried or concealed with the intent of returning to claim
it. English law typically gives to grown. American courts typically reject this. Some give it to finder, some
to landowner.
a. Today, typically treat it as lost, mislaid, or abandoned.
b. Some states distinguish treasure trove from other mislaid property
2) Shipwrecks
a. Law of finders usually applied, and finder entitled to abandoned shipwreck unless the wreck was
embedded in land owned or possessed by another
b. Title asserted for US if submerged in lands of a state via Abandoned Shipwreck Act of 1987
c. Maritime law awards finder nothing
3) Native American remains
a. Many statutes to protect burial cites
b. NAGRPA (Native American Graves Protection and Repatriation Act) provides that remains and
funerary objects with body on federal or tribal land belong:
i. To descendants of persons buried
ii. To the tribe on whose tribal land the remains are found
4) Black remains
a. Unprotected, no federal counterpart to NAGRPA
b. Some protections from private groups, state, and local gov

e) Object found in private home/other private place

Usually awarded to owner of the premises

The locus owner has an intent to exclude everyone and admit persons for specific limited purpose (deliver
laundry, have dinner, etc.) that do not include finding property. Strong expectations that all objects, including those of
which he is unaware, are “his.”
Ex: Guest at a party in homeowner’s house finds a diamond ring under the sofa, no one claims to own.
Homeowner is in constructive prior possession and can keep it until true owner reclaims it.

1) Owner not in possession: If the owner has not moved in, owner is not in constructive possession

Hannah v Peel: Peel owned a house, never lived there. Requisitioned for quartering. Soldier finds a
brooch and turns it in. Police return it to Peel, Peel sells. Hannah sues. Hannah prevails because Peel
never moved into the house and took possession of it. Case could have also been affected by
rewarding honesty.

f) Object found in public place

Generally, this is resolved by the “lost-mislaid distinction”

Benjamin v Lindner Aviation: $18k found in wing of old airplane by inspector. Obviously not lost, as it was
intentionally placed. Therefore, possessed by owner of the airplane.
 1) Lost-mislaid distinction

Lost is property that the owner accidentally and casually lost (e.g. ring slips through hole in pocket)

Mislaid is property intentionally placed somewhere and then forgotten (e.g. purse and table and left)

a) Lost property goes to the finder rather than owner of premises

b) Mislaid goes to the owner of premises rather than the finder

*Why? – Purpose is to facilitate the return of the object to the true owner. Mislaid property will
probably be looked for.

Bridges v Hawkesworth:
 There, a patron found bank notes in a store. When no owner was found, the patron sought the notes from
the shopkeeper. On appeal, the court held that the notes belonged to the finder, as the shopkeeper never
exercised control over the notes. The notes clearly had been “lost.” It was happenstance that the notes were
lost in the store.  
 Rule: When a lost item is found upon property that is open to the public, ownership of the lost item vests
in the finder as opposed to the owner of the real property where the item is found. 
 This case is cited as making a distinction between public and private but it never even mentions
those terms!

McAvoy v Medina:
 Customer found a pocketbook on a table, showed to Medina. Sued to recover the money from the
pocketbook.
 Mislaid property is not subject to the rule that a finder has valid claim against all except true owner.
 It is the shopowner’s duty to keep the property safe

Parker v British Airway: A passenger in a lounge, owned by British Airways, at Heathrow, found a bracelet on
the floor. Turned it in, requested it back after true owner not found. BA sold bracelet, Parker sued and one,
affirmed on appeal
 Bracelet found in area frequented by public
 BA didn’t show control over area

Criticism of lost-mislaid
1) How can you tell if lost or mislaid? Was it dropped? Placed intentionally? Originally on table but brushed
off?
2) Assumed true owner will retrace steps if mislaid. Don’t people do the same thing when lost?

3. Abandoned Property

Property intentionally abandoned by true owner, who no longer claims any rights.
Courts sometimes say abandoned is awarded to finder, but this is unreliable

a. Multiple finders
a. Rule of equitable division: property sold and divide the proceeds
i. Ex: baseball caught by Fan, who lost control in crowd, B picks it up. A sued, but did he have
complete control? This covers both claims.

Very hard to prove something is abandoned. Courts hesitate to ever do this because the person usually isn’t there to confirm that
they abandoned it.

4. Statutory Changes

Ex: In NY, no distinction between lost, mislaid, abandoned. So, in Hurley City of Niagara, a contractor hired to build a rec
room in basement is entitled to $4,900 he found under a sink in the basement. Any claim homeowner might have had under
common law is swept away under statutory reform.
Acquisition by Adverse Possession
 synthesis of statutory and decisional law

 Theory: The basic theory of adverse possession is simple: If, within the number of years specified in the state
statute of limitations, the owner of land does not take legal action to eject a possessor who claims adversely to the
owner, the owner is thereafter barred from bringing an action in ejectment. Once the owner is barred from suing in
ejectment, the adverse possessor has title to the land.
o example: O owns Blackacre. Imposter, gives grantee a deed to Blackacre, forging O’s name. Grantee
enters BA in 1992 and possesses the land adversely to O for 10 years. O does nothing during those 10
years. The state SOL provides that if an owner of land does not bring an action to recover possession
within 10 years after the cause of action first arises, the owner is forever barred from bringing such an
action. In 2002, O’s action in ejectment is barred and grantee now owns BA.
 Effect:
o means of acquiring title to property by long, uninterrupted possession
o the running of the owner’s action in ejectment bars the owner’s claim to possession AND extinguishes the
old title of the owner and creates a new title by operation of law in the AP.
o The AP’s right to possession, here-to-fore good against all the world even against the previous rightful
owner.
o Once AP has title, it can be transferred in the same manner as any other title to land (deed, will, intestacy
to heirs)
o However, title acquired by AP cannot be recorded in a courthouse like a deed or will because it didn’t
arise from a recordable document but from operation of law
o So, if AP wishes to have name recorded as owner in courthouse, he must file a quiet title action against
former owner barred by SOL.
o The decree in the lawsuit will be recorded and declare that AP has legal title.
o Probably a good idea to file quiet title action because otherwise AP could have difficulty selling property
without a record title. not marketable without it.
 Purpose:
o may look like theft at first glance
o reasons it is good doctrine:
 1) protects title when title is difficult to prove.
 Example: O owns BA in 1960. in 1970, A deeds BA to B and in 1985, B deeds BA to C.
B is in possession from 1970-1985 and C from 1985 and after. in 2001, C contracts to sell
BA to D. Upon searching records, D finds no deed from O to A and alleges C does not
have title. It is possible O gave A deed before 1970 and it was lost or not recorded. But B
and C thought they were owners and acted as such by taking possession. O would now be
barred by SOL and C can convey to D good title based on AP.
 2) Land records. Kept in county courthouse, can be deficient.
 AP makes records more reliable by protecting possessors whose record title is deficient.
 3) Bars stale claims.
 Ex: A and B both claim BA. B goes into possession. With time, witnesses die, lose
memories, evidence diminishes, becomes less reliable. The SOL for AP requires lawsuit
to be brought to oust possessor while witnesses’ memories and evidence are fresh.
 4) Rewards those who use land productively
 society likes land to be used for productive reasons. rewards possessor who is productive
and penalizes owner who lets land lie unproductive
 Criticism: some common law in some states does not require that AP develop the land as
long as they openly and notoriously use it. But some state statutes do require
productivity.
 5) Honor expectations
 people in possession of property acquire attachments to land after a long time and
expectations they can continue to use it.
 Length
o SOL varies from state to state. usually between 5-20 years. Modern trends have shortened the period.

 Possessor’s rights before acquiring title

 o before SOL, AP has rights that a possessor does
 can evict people, etc.
 has an interest. can even transfer this interest
o but before SOL expires, AP has no interest valid against the true owner
o before SOL, true owner can repossess at any time

 Requirements for AP
o Possessor must:
 show an actual entry giving exclusive possession that is
 open and notorious
 adverse and under a claim of right
 continuous for statutory period
o AP is a blend of statutes and judicial decisions
o Actual entry giving exclusive possession
 triggers that cause of action, starts SOL running. shows extent of AP’s claim
 Constructive possession of part
 if there is actual entry on PART of the land, possessor may be deemed in constructive
possession of the rest.
 Exclusive possession
 can’t be sharing possession with owner or general public
 if sharing with owner, owner probably doesn’t realize AP is claiming ownership against him
o Open and notorious
 Open, notorious, and visible
 must constitute reasonable notice to owner that AP is claiming dominion to give owner chance to
defend his rights
 usually these acts are typical of an owner of the property
 of which the community, observing them, would infer the actor to be claiming ownership.
 depends on the type of land involved
 farmland: fencing, cultivating, erecting a building would be open and notorious
 wild, undeveloped: acts indicating a claim of dominion such as erecting cabin, paying taxes,
selling timber to others, executing leases of oil. fencing or living on land might not be
necessary.
 city land: erection of fence or building.
o ex: someone took sand and gravel from a city lot and granted permission to others to
do so and sued trespass those who took without permission and paid taxes = AP.
o some states have statutory requirements for AP
 NY provides that if claimant does not enter with color of title, AP can be claimed only where land:
 has been protected by substantial enclosure or
 been cultivated or improved
 so in NY, a person without color of title would have to show in the above example, that a hunting
cabin is a usual improvement or that taking sand and gravel was a usual cultivation in order to win.
o possession of minerals
 can you possess what lies underneath surface given requirement of actual, open, and notorious?
 if same person owns the surface estate and mineral rights when AP begins, AP of surface
includes possession of minerals.
 but if separate owner of minerals, AP would have to be taking them to start AP running
against owner of minerals.
o Adverse and under a claim of right
 think “hostile”
 not animosity, but without the owner’s consent.
 make sure true owner is not lulled into believing occupant will make no claim against him
 objective or subjective test? lots of litigation and dispute over this
 Terms of the state of mind required by Adverse possessor. 3 differing views 
o 1) state of mind is irrelevant (objective)
o 2) required state of mind is "I thought I owned it" (good faith)
o 3) required state of mind is "I thought I didn't own it but I intended to make it
mine" (aggressive trespass)
  objective test: state of mind of possessor is not important, just his actions
o actions and statement must look like they are claims of ownership
o if they look that way to community, claim is adverse and under claim of right
o under this test, person can be AP even though he is not actually claiming title against
true owner
o just needs to be occupying land without permission of owner
 subjective test: an AP would need to have bona fide or good faith belief he has title
o if he knows he has no title, possession is not adverse
o under this view, a squatter can’t be an AP
o if a person mistakenly believes he has title, but if he knew truth would not claim title,
he is not occupying adversely.
 objective test recommended by Property commentators, a majority rule
o But seems to be that courts usually do require possessor to act in good faith. if a
person makes an honest mistake, yes he is holding adversely
o but if person knows, he is not
 so willful trespassers and squatters have not prevailed unless they have
strong equities in their favor.
o Color of title
 refers to a claim on a written instrument (deed, will, judgment, decree) that, unknown to claimant, is
defective and invalid)
 i.e. grantor’s name forged, grantor doesn’t actually own land, grantor mentally incompetent
and deed improper, etc.
 in all these cases, grantee without knowledge of defect takes possession under color of title.
 in most states, color of title is not required to be an AP.
 in some states, entry under color of title is required and if not, other requirements must be met.
 in some states, those who enter under color of title, the requirements are more lenient or the statutory
SOL is shorter.
o Boundary Disputes
 adjoining landowners where one party has been in open and notorious possession of strip of land on
his boundary, mistakenly believing it to be his when in fact it belongs to his neighbor.
 usually, courts apply an objective test of claim of right to boundary disputes.
 possessor’s mistake is not determinative, possessor is holding claim of right if acts appear to
be claim of ownership and possessor can acquire title by adverse possession when statutory
period expires.
 some jurisdictions hold that if possessor is mistaken as to boundary and would not have done so if he
knew the mistake, then there is no intention to claim title and adversity is missing
 called Maine doctrine
 Example: Frost, intending to claim only to the true boundary line, erects a fence on what he
mistakenly believes to be the correct boundary line dividing his land from that of his neighbor
Sandburg.
 In fact, the fence is 10 feet over onto Sandburg’s land, giving Frost possession of 10 feet of
Sandburg’s land. The fence remains for the period of limitations.
 Under the majority view, Frost owns the 10 feet by adverse possession.
 Under the Maine doctrine, Frost’s actual state of mind is relevant. If he would not have
claimed title to the 10 feet had he known it belonged to Sandburg, Frost does not possess
under a claim of right, and hence there is no adverse possession.
 criticism of Maine doctrine
 an action in ejectment lies against possessor regardless of actual intent
 if actual intent is determinative, the intentional wrongdoer wins when the good neighbor
would not.
 Maine doctrine encourages honest neighbors to lie
 the objective tests is more reliable and cheaper to administer than a subjective test of what
was in the possessor’s mind.
 Another view-the new jersey view
 New Jersey for a long time adhered to the Maine doctrine, but New Jersey has now joined the
majority and applies the objective test with this qualification:
  “[W]hen the encroachment of an adjoining owner is of a small area and the fact of an
intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site
survey for certain disclosure,” the encroachment is not open and notorious.
 In that case, the statute of limitations will run against the owner only if the owner has actual
knowledge of the encroachment.
o agreement on boundaries
 oral agreement typically unenforceable because a written instrument is needed for conveyance of land,
but sometimes they are enforced anyway
 if there is uncertainty between neighbors as to true boundary line, an oral agreement is
enforceable not as a conveyance but as a way of locating the boundary described in the deeds.
 acquiescence doctrine:
 a long acquiescence (but perhaps shorter than SOL) is evidence of agreement between parties
fixing the boundary line
 estoppel:
o when neighbor B makes positive representations about or conducts himself to
indicate the location of a common boundary and neighbor A substantially changes
his position in reliance on such representations or conduct
o neighbor B is estopped to deny the validity of his statements or acts
o applied when neighbor B remains silent in the face of substantial expenditures by
neighbor A
o mistaken improver:
 if A erects a building or part of a building on B’s property, mistakenly believing it is on A’s own land.
When B discovers mistake, the encroachment has not existed for the period of the SOL-so A does not
have AP claim. What are B’s rights?
 common law was harsh on A. B had right to remove the encroachment
 modern law: a good faith improver of a neighbor’s lot will get some relief
o now equity court may allow
 Record Owner wins title, AP is enjoined
 AP wins title, RO is enjoined
 AP wins title, but must pay RO damages
 RO wins title, but must pay AP damages or RO has the option to win by
doing so.
o intentional encroachment
 If a person knowingly encroaches on neighbor’s lot, person must remove it if the neighbor demands.
A cannot seize B’s land but must bargain with B for it. Equitable relief is available only to those who
act in good faith and improve the adjoining lot by mistake
o Continuous, uninterrupted possession
 fourth requirement for AP
 continuous: requires only the degree of occupancy and use that the average owner would make of the
particular type of property.
 continuous when made without a break in the essential attitude of mind required for adverse use.
 can be continuous even if intervals during which property is not used
 purpose is to give owner notice that possessor is claiming ownership not just a series of trespasses
 seasonal use
 use of a summer home only during summer for statutory period is continuous use (Kunto)
 using a hunting cabin during hunting season, etc., if lands are normally used this way
 abandonment: intentional relinquishment of possession
 is possessor abandons property, no intent to return, continuity of AP is lost. if they return
later, SOL begins to run anew
 leaves to go take a new job but comes back if it didn’t work out- SOL starts over he didn’t
intend to return.
 leaves to take care of sick aunt, intends to return, leaves some stuff there, the period likely
will continue to run
 tacking by successive APs
 an AP can tack onto her own period of P any period of AP by predecessors in interest.

o provided there is privity of estate between APs

 o Example: O owns BA. in 1981, A enters adversely. in 1994, A sells her interest to B,
who continues to hold adversely to O. in 1998, B dies and his interest in inherited by
C who takes possession and continues to. hold adversely to O. The statutory period is
20 years. in 2001, C acquires title by AP-13 ears of A’s possession and 4 years of B’s
are tacked onto three years of C’s.
o privity of estate: a possessor voluntarily transferred to a subsequent possessor either
in estate or physical possession. If transfer is not voluntary, not privity.
 why required? courts require it because they view title by AP something to
be gained by meritorious conduct and involuntary transfer by ouster or
seizure is not seen as meritorious
o example: A owns lot 1, but by mistake builds her house on the adjoining lot 2 owned
by O. Five years later, A sells “her house” to B, giving B a deed describing lot 1 and
transferring to B physical possession of lot 2 (where the house is). B can tack A’s
possession of lot 2 onto his own. Think of Kunto.
o reentry: is A is ousted but manages to reenter, A can take prior possession onto later
possession but statute is tolled during X’s possession. So if X possessed for 6
months, A would stay in possession for the statutory period plus 6 months.
o abandonment: tacking not permitted with abandonment.
o tacking re owner: once AP starts running against O, it is running against O and all of
O’s successors in interest. so if A enters against O 9n 1990 and O conveys to C in
1995, the statute continue to run against C from 1990.
o interruption by true owner
 if owner reenters openly and notoriously for purpose of regaining possession, the SOL stops running.
 objective test: most states, interruption can occur without an actual intent to oust possessor. if owner’s
acts are ordinary acts of ownership that would give notice of claim to an average person, they are an
interruption
 there is a presumption that the use of the land by the owner is the exercise of his right to use it
o payment of property taxes
 in several states, AP must pay taxes on the land in order to prevail
o Disabilities of Owner
 unfair for SOL to run on person who is unable to bring lawsuit due to legal disability
 most statutes give an additional period of time if owner is under disability
o infancy, insanity, jail, etc.
o only the disabilities of the owner at the time AP begins count
o only one counts
o Extent of Land Acquired by AP
 if person entered without color of title
 her claim only extends to such part of the land she actually occupied or controlled in a
manner consistent with ownership of premises
 if person entered with color of title
 doctrine of constructive adverse possession
 deemed to be in AP of entire property described in the instrument
 in constructive adverse possession of the part of tract she is not actually possessing
o Liens, easements, equitable servitudes
 if land subject to any of these when AP enters, any title acquired by AP remains subject to them
o Government land: except where statute says otherwise, gov land is exempt from SOL
 public policy forbids private individual from acquiring title to gov land by AP
 not expected that citizens will be punished by gov officials not watching extensive gov land as private
owners are expected to do
 Adverse Possession of Chattels
o difficult because they can move!
o usually similar to requirements for land, but usually SOL is shorter
o BUT AP of land is open and notorious, chattels seldom is
o Two main approaches
 New York Rule
 holds that the SOL does not begin to run on owner of stolen goods until the owner knows
who has the goods and makes a demand for the return of the goods that is rejected.
  if person refuses to return, the 3-year SOL begins to run
 NY believes this will deter theft.
 NY puts risk of buying stolen goods on purchasers
 NY rule due diligence is irrelevant. cause of action begins to run when O learns that B has the
painting
 Due Diligence rule or Discovery Rule
 SOL does not begin to run as long as owner continues to use due diligence in looking for
them.
 shifts emphasis. conduct of the owner, not the possessor is controlling.
 cause of action accrues when owner first knows or reasonably should through exercise of due
diligence, where the stolen goods are.
o bona fide purchaser of stolen goods
 not protected against claim of owner unless SOL has run
 law protects owner over purchaser
 questionable when and if purchaser is bona food and didn’t know goods were stolen
 lies in testimony, hard for owner to disprove what purchaser knew
 purchaser should inquire seller
 owners without this protection would spend more money to prevent theft

Acquisition by Gift

 Gift is a voluntary transfer of property without any consideration. Three requirements for gifts of chattel:
o 1) donor must INTEND to make the gift
o 2) donor must DELIVER the chattel to the donee
o 3) donee must ACCEPT the chattel
 Gift inter vivos
o a gift made during the donor’s life when the donor is not under any threat of impending death
o once made, irrevocable
 Gift causa mortis
o gift made in contemplation of immediately approaching death
o can be revoked in donor recovers from illness that prompted gift
o ex: O, suffering a cerebral hemorrhage, hands over stock certificates to A saying “if anything happens to me, these
stocks are yours.” O dies shortly thereafter. This is a valid gift causa mortis. The words implying “if I die” do not state
a condition precedent but are merely the expression of the condition attached by law to every gift causa mortis- that it
does not become irrevocable until the donor dies
 causa mortis vs inter vivos
o can be trickier than meets the eye
o what if a sick husband says “since I’m dying soon and wont’ be around for your birthday, I want to give. your present
now.” and he hands her a gift. The language about dying makes you think causa mortis, but it wasn’t actually made in
contemplation of death- he would have given his wife a birthday gift any way and is not revocable if he does not die.
 INTENT
o must intend to do so.
o intent and delivery are separate
o a promise to give property in the future is NOT a gift
o a gift transfers title to donee right now
o a gratuitous promise is not enforceable as a gift
 DELIVERY
o the grantor must “feel the wrench of delivery”
 legal significance, finality
o evidentiary, objective evidence of grantor’s intent to give
o alternative methods
 usually required that a gift is physically handed over
 constructive delivery and/or symbolic delivery can substitute
 constructive: where actual manual delivery is impracticable. usually handing over means of obtaining
possession and control. i.e. a key. which would relinquish dominion and control over the property.
 example: O, lying on his deathbed, calls in his housekeeper Julia, hands her the keys to all the furniture
in the house, and says she is to have everything in the house. In his bedroom bureau, which one of the
 keys unlocks, is an insurance policy. O has not made a gift of the insurance policy because it is in the
room where O lies dying and is capable of manual delivery. Julia does, however, receive as a gift all
the furniture unlocked by the keys (either a constructive or symbolic delivery) because it is
impracticable to hand the furniture over manually. [Newman v. Bost]
 safe deposit box example: Handing over the sole key to a safe deposit box has usually been sufficient
constructive delivery of the contents. But where the donor hands over one of two keys, and keeps the
other, the cases are divided as to whether this is constructive delivery. A number of courts have held
that because the donor can still enter the box, the donor has not surrendered dominion and control.
[Hocks v. Jeremiah]
 constructive delivery sometimes broadly defined to include any acts that the donor deems sufficient to pass a
present interest to donee. this approach deemphasized delivery and emphasized intent.
 ex: O, depressed from being injured in an auto accident, receives a check for $17,400 from
the insurance company. O indorses the check in blank and puts it with a suicide note to her
lover, giving all her possessions to him. O leaves her apartment and commits suicide. This has
been held a valid constructive delivery of a gift causa mortis
 symbolic delivery: where actual manual delivery is impracticable because chattel is too large, the
situation doesn’t permit, symbolic deliver is permitted.
 handing over something symbolic of thing given, like an instrument in writing
 ACCEPTANCE
o required for a gift, can be rejected
o law presumes acceptance where gift is beneficial to the donee

Possessory Estates
 estate system originated in feudal times but still underlies our present property law
 The Fee Simple
o estate that has the potential of enduring forever.
o closest to absolute ownership that exists
o “to A and his heirs” or today you can simply say “to A” although lawyers usually include “and his heirs”
language- creatures of habit.
 The Fee Tail
o estate that has potential of enduring forever but will necessarily cease if and when the first fee tail tenant has
no lineal descendants to succeed him in possession
o mostly abolished today- doesn’t really fit America’s egalitarian principles. Existed to keep things within a
bloodline.
o devisable (transfer by will), descendible (transfer by intestacy), and alienable (transferable inter vivos)
o “to A and the heirs of his body”’
o future interest following fee tail
 reversion if in grantor
 O conveys BA “to A and the heirs of his body”
o A has fee tail, O has reversion in fee simple to become possessory upon expiration of
the fee tail
 remainder if in third party
 O conveys BA “to A and the heirs of his body and if A dies without issue, to B and her heirs”
o A has a fee tail, B has a vested remainder in fee simple to become possessory on the
expiration of fee tail.
o abolished, so if it is written, there are statutory and judicial solutions
 A has a life estate or A has a fee simple
 The Life Estate
o estate that will end necessarily at the death of a person
o “to A for life”
 The Leasehold Estate
o landlord and tenant
o fixed calendar period
 Freehold and Nonfreehold Estates
o fee simple, fee tail, and life estate are freehold estates
o highest form of holding in feudal times
o leasehold interests are not freehold
 o freeholder has seisin and leaseholder only has possession
 seisin: Ownership of a freehold estate obtained through holding title and right to possession of the land.
o New estate types can not be created. has to fit into fee simple, fee tail, or life estate.
 example: A devises land to “my granddaughter and her heirs on her father’s side”
 these words don’t fit into any of the categories
 A is trying to create an estate that will descend only to her paternal kin
 court will construe words so they fit a category of estate
 so probably she has a fee simple “to my granddaughter and her heirs”
 THE FEE SIMPLE
o devisable (transfer by will), descendible (transfer by intestacy), and alienable (transferable inter vivos)
o no limitations on inheritability (heirs can be collateral and lineal)
o no limitations on alienability (state of being capable of being conveyed to another party)
o Heirs have no present or future interest because heirs aren’t known until the person dies.
 example. O conveys land “to A and his heirs.” Then A gives land to B. A’s heirs, have no interest in
land and can’t prevent the gift.
o If fee simple owner dies without a will, fee simple is inherited by owner’s heirs
o if fee simple owner dies without a will and without heirs, fee simple escheats to the state.
o share of a spouse: if decedent leaves a spouse, spouse will take one half. other half goes to issue, if none, then
collateral
 if spouse and children, spouse takes half and children divide the half in equal shares
 if child predeceases decedent, leaving issue, the issue represent the child and take the child’s
portion
o Issue: person’s lineal descendants: children, grandchildren, great-grandchildren, etc.
o Ancestors: lineal ascendants: parents, grandparents, etc.
o Collaterals: by blood but not lineal: brothers, sisters, nieces, nephews, aunts, uncles, cousins
o Issue, ancestors, collaterals: together are a person’s heirs.
 gives fee simple a greater chance of surviving death of owner
o If a person dies without a will, statutes vary.
 usually, spouses are successors and take first. how much depends on who else survives
 if no surviving issue or ancestors, spouse can take 100%
 if surviving issue, spouse and issue generally divide estate. spouse usually takes between 1/3 and 1.2
 if no surviving spouse, surviving issue take entire estate in equal shares
 if child of decedent has died, his share of property will be divided equally between his children
 if decedent leaves no spouse and no issue, then intestacy statutes usually go upward toward parents
 if no parents, no ascenders- then statutes generally begin to move to collateral heirs
 DEFEASIBLE FEES
o multiple types. can be created to be defeasible on the happening on some event
o potential of lasting forever, just not the certainty
o determinable, subject to condition subsequent, subject to executory limitation
o must have clear and durational language
 if only intent (hope, purpose, intention, expectation) this is not a defeasible fee
 can’t have restraints on alienation i.e. if you try to sell you lose it- this makes it void and it becomes a
fee simple absolute.
 FEE SIMPLE DETERMINABLE
o a fee simple estate so limited that it will automatically end when some specified event happens
o devisable (transfer by will), descendible (transfer by intestacy), and alienable (transferable inter vivos), but
always subject to condition
o example: O conveys Blackacre “to School Board so long as the premises are used for school purposes.” The
words “so long … purposes” are words of limitation, limiting the duration of the fee simple given. The School
Board has a fee simple determinable that will automatically end when Blackacre ceases to be used for school
purposes. When that event happens, the fee simple automatically reverts to O.
 it’s a fee simple because it’s possible it endures forever
o but if contingency occurs, it automatically ends. nothing further required and fee simple automatically reverts
to grantor. this is the distinguishing characteristic
o “so long as” , “until” , “while” are common language used to create
 o it’s possible to only convey a motive where perhaps grantor intended to create a determinable. for example
“for the sole purpose of” does not create a determinable fee. it’s just the motive and this gives the grantor no
right.
o transferable and inheritable as long as stated event has not happened. remains subject to limitation no matter
who holds it.
o grantor has future interest called possibility of reverter
 FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT
o fee simple that does not automatically terminate but may be cut short (divested) at the grantor’s election when
a stated condition happens
o devisable (transfer by will), descendible (transfer by intestacy), and alienable (transferable inter vivos), but
always subject to condition
o example: O conveys BA “to A, but if liquor is ever sold on premises, the grantor has a right to reenter the
premises” the words “but if” are words of condition setting forth a condition upon which grantor can exercise
right of entry.
o if O does not choose to exercise right of entry, the fee simple continues in A.
o O merely has the power to reenter if contingency occurs.
o “but if” , “upon condition”, “provided, however”
o can be transferred or inherited but same limitations apply no matter the holder
o grantor retains a right of entry.
o if court has a choice, fee on condition subsequent is preferred as it is optional not automatic in order to avoid
forfeiture of estates.
o future interest- grantor has right of entry
 FEE SIMPLE SUBJECT TO AN EXECUTORY LIMITATION
o fee simple subject that on happening of state event, is automatically divested in favor of a third person, not the
grantor.
o devisable (transfer by will), descendible (transfer by intestacy), and alienable (transferable inter vivos), but
always subject to condition
o future interest is a shifting executory interest held by who the grantor designates
o O conveys BA “to School Board, but if within the next 20 years BA is not used for school purposes, then to
A.”
 THE LIFE ESTATE
o descendible, alienable, devisable
o future interest:
 if in grantor, reversion
 if in someone not the grantor, remainder
o life estate owners are responsible for waste, can’t harm future land owners
o types
 1) for life of grantee
 usually life estates measured by grantee’s life
 O conveys BA “to A for life.” The grantee, A, gets a life estate as long has he lives. On A’s
death, the land reverts to O, the grantor.
 2) pur autre vie
 estate measured by life of someone other than owner of estate
 O conveys BA “to B for the life of A.”
o if B dies before A, the life estate pur autre vie descends to B’s heirs until A dies.
 3) in a class
 can be created in several person for example “to the children of A for their lives, remainder to
B.”
 usually share goes to surviving life tenants and remainder does not become possessory until
all life tenants die.
o Defeasible life estates
 can be subject to condition subsequent or executory limitation
 O conveys “to A for life so long as A remains unmarried”
 A has life estate terminable upon marriage
 O conveys “to A for life, but if A does not use land for agricultural purposes, O retains the right to
reenter”
 A has life estate subject to condition subsequent
 o Construction problems
 sometimes not clear what estate is created
 each case depends on its own facts and the probable intent of the grantor
o Alienability of life estate
 a life tenant is free to transfer, lease, etc. But transferee gets no more than life tenant had- an estate
that ends at the expiration of the measuring life.
o Problems
 Suppose that O dies, devising Blackacre to her husband, H, for life, and on his death, to their children.
H may live a long time and various problems may arise that cannot be satisfactorily resolved except
by going to court, and maybe not even then. Suppose that H wants to add a room on the house and
needs to borrow money from a bank, giving the bank a mortgage. Or suppose that H wants to lease the
land beyond his death, or wants to sell the land and move to a smaller place or more convenient
location.
 It is possible for H to do what he desires if all the owners of the remainder are adult,
competent, and consent
o Waste
 conduct by life tenant that permanently impairs value of land
 1) affirmative (voluntary)
 when life tenant actively cases permanent injury (destroying building, trees, removing
resources)
 ORGE
o Open mine doctrine (if already mining when life estate started)
o Repairs
o Grant (if given permission)
o Exploitation (if this is the normal use of land i.e. logging)
 2) permissive (involuntary waste)
 land is allowed to fall into disrepair, tenant fails to take reasonable measures to care for or
protect land. fails to pay taxes, fails to pay interest on mortgage
 no obligation to insure
 3) ameliorative waste
 when the principal use of land changed and it increases value of land
 unless future land owners consent
o Sale of Property by a court
 if life tenant and owners of remainder are adults, competent, and agree- the fee simple in the land can
be sold
 if they can’t agree, equity courts may intervene and order sale of property if sale is necessary for best
interest of all parties.

Future Interests

 When analyzing future interests:

o classify the present estate
o look at who has the future interest
 if it is retained by grantor, narrowed down to reversion, possibility of reverter, or a right of entry.
 if to someone other than grantor, remainder or executory interest
o think about how the future interest will become possessory
o identify the possessory estate in which the future interest will be held
o determined whether interest in vested or contingent
 contingent:
 given to unascertained person or
 subject to a condition precedent
 Future interest: a nonpossessory interests capable of becoming possessory in the future
o present in the sense that it presently exists, but it is not presently possessory, hence it is a future interest
 ex: O conveys BA “to A for life, and on A’s death to B.”
 A has possessory life estate.
 B has a future interest called remainder, it will become possessory on A’s death
 Before A’s death, the remainder exists as a property interest in BA
  as with other property interests, B can transfer the remainder to C and B’s creditors can reach the
remainder
 Just like possessory estates which are limited (fee simple, fee tail, life estate, leasehold). so are future interests
o 5 categories
 reversion
 possibility of reverter
 right of entry
 remainder
 these can be further divided into vested and contingent
 executory interest
o language must be construed so as to create one and only one
 Future interests in the grantor
o two groups
 future interests retained by the grantor
 future interest must be either reversion, possibility of reverter, or right of entry
 future interests created in a grantee

 Reversion: a future interest left in the grantor after the grantor conveys a vested estate of a lesser quantum that he has
o ex: O owns BA in fee simple. O conveys B “to A for life”
o because O did not convey a fee simple to anyone, just a life estate (lesser estate than a fee simple) – O has a
reversion
o When A dies, BA will revert to O
o If O had conveyed a fee simple to A, O would not have a reversion
 Possibility of Reverter: when a grantor carves out of his estate a determinable estate of the same quantum. usually it
follows a determinable fee
o Ex: O conveys BA “to A so long as BA is used for school purposes.” A has a determinable fee; O has the
possibility of reverter.
o O’s interest is not a reversion because O, owning a fee simple, has conveyed a fee simple determinable to A.
o All fees simple (absolute, determinable, STCS, or executory limitation) are of the same quantum
 Right of Entry: when a grantor creates an estate subject to condition subsequent and retains the power to cut short the
estate
o Ex: O conveys BA “to A but if A ceases to use BA for school purposes, O retains a right to reenter.”
o A has a fee simple subject to condition subsequent
o O has a right of entry
 Correlative
o possessory estates have correlative future interests in the grantor
 life estate- reversion
 fee simple determinable- possibility of reverter
 fee simple on condition subsequent-right of entry

 Future interests in Grantees

o it must be either a remainder or an executory interest
o Remainder
 a remainder is a future interest in a grantee that
 has the capacity of becoming possessory at the expiration of the prior estate
 cannot divest the prior estate
 ex: O convey BA “to A for life, and on A’s death, to B and her heirs.
 A has possessory life estate
 B has remainder in fee simple.
 B’s interest is a remainder because it can become possessory on A’s death and it will not divest A’s life estate
prior to A’s death
o Executory Interest
 a future interest in a grantee that in order to become possessory must divest or cut short the prior estate, or spring
out of the grantor at a future date.
 difference from remainder: a remainder never divests the prior estate and the executory interest almost always
does
 ex: O conveys BA “to A and his heirs, but if B graduates from law school, to B and her heirs.”
  A has a fee simple subject to executory limitation
 B has a shifting executory interest
 B’s interest can become possessory only by divesting A of the fee simple upon happening of uncertain
event (shifting)
 ex: O conveys BA “to A when she marries B”
 O retains fee simple and creates executory interest in A to spring out of O in the future when A marries
B.
 Reversion
o a future interests left in the grantor after she conveys a vested estate of a lesser quantum than she has.
o it may be expressly retained
o ex: O conveys BA “to A for life, then to revert to O”
 if not expressly retained, a reversion will arise by operation of law
 ex: O conveys BA “to A for life”
 O has a reversion in fee simple by operation of law
o reversions are vested interests although not all will necessarily become possessory
 ex: O conveys BA “to A for life, remainder to B if B survives A.”
 O has reversion because if B dies before A, BA will return to O at A’s death
 if A dies before B, A will go to B at A’s death
 not contingent reversion
o reversion being vested-
 alienable
 fully transferable both inter vivos and by way of testate or intestate succession
 not subject to rule against perpetuities
 future interests are reachable by creditors
o don’t confuse reversion with possibility of reverter
 Possibility of Reverter
o when a grantor carves out of her estate a determinable estate of the same quantum.
o In almost all cases, a possibility of reverter follows a determinable fee, not some lesser determinable estate.
o Thus, for all practical purposes, a possibility of reverter is a future interest remaining in the grantor when a fee
simple determinable is created

o O conveys BA “to A and his heirs so long as liquor is not sold on the premises
 A has a determinable fee
 O has possibility of reverter
  Note: if fee simple determinable is granted, the grantor will have possibility of reverter unless the grantor
transfers the property to a third party upon the occurrence of the specified event
o can’t be created in a grantee (this would be executory interest)
o Alienability
 in common law, possibility of reverter couldn’t be transferred inter vivos
 not viewed as existing interest but as a possibility of interest so therefore not a thing that could be
transferred
 modern law: most jurisdictions, possibility of reverter is alienable both during life and by will
 now viewed as a property interest and alienability is an inherent characteristic of a property
interest
o termination
 when gov exercises eminent domain (taking title where fee simple determinable is owned by A and
possibility of reverter is owned by B) it is necessary to value separate interests
 majority rule is that entire award belongs to A unless expiring soon
 minority sets value as difference between full fair market value of fee simple with all uses and
value of land for uses permitted
 Right of Entry
o grantor creates estate subject to condition subsequent and retains power to cut short or terminate the estate
o ex: O conveys BA “to A and his heirs, but if liquor is ever sold on premises, O has a right to reenter and retake
BA”
 A has a fee simple subject to condition subsequent
 O has a right of entry for breach of condition subsequent
o Alienability
 common law: right of entry inalienable inter vivos
 not thought of as property interest but a special right
 modern law:
 some states-right of entry is alienable
 in other states, common law is follow
 some states- the mere attempt to transfer right of entry destroys it

 Remainder: future interest created in a grantee that is capable of becoming a present possessory estate on the expiration of a
prior possessory estate created in the same conveyance in which the remainder is created.
o A remainder never divests or cuts short the preceding estate; instead it always waits patiently for the preceding
estate to expire.
o example: O conveys BA “to A for life, then to B if B is then living”
 B has a remainder because B’s interest is capable of becoming possessory upon the termination of the life
estate
o characteristics of a remainder
 must have a preceding estate
 ex: O conveys “to A if A marries B.” No preceding estate has been created by O in anyone; thus,
A does not have a remainder. A has instead a springing executory interest 
 must follow a fee tail, life estate, or term of years
 cannot follow a fee simple
 ex: O conveys “to A and the heirs of his body, and if A dies without issue, to B and his heirs.”
 If the fee tail has not been abolished, A has a fee tail, and B has a remainder in fee simple
 ex: O conveys “to A for 10 years, then to B and his heirs.” A has a term of years. B has a vested
remainder in fee simple.
o At early common law, B’s interest was not called a remainder.
 It was said that B had the fee simple subject to A’s term of years. Lawyers put it
this way because of the notion that a remainder needed a preceding freehold
estate to support it.
o But today, lawyers call B’s interest a remainder.
 must be capable of becoming possessory on natural termination of preceding estate
 Ex: O conveys “to A for life, then to B”
o B has a remainder because B takes when the preceding estate expires
 Ex: O conveys “to A for life, but if B returns from Rome during the life of A, to B in fee simple”
 o B does not have a remainder
o B’s taking divests A’s estate and thus B has a shifting executory interest
 There cannot be a remainder divesting a fee simple. an interest divesting or following a fee simple is an
executory interest, not a remainder
 ex: O conveys “to A and his heirs, but if A dies without issue to B”
o B has an executory interest not a remainder
o Summary: a remainder must follow a preceding estate
 if no preceding estate, a future interest can’t be a remainder
 a remainder can’t follow a fee simple
 Estates in Remainder
o could be a fee simple, life estate, a term of years, or if permitted a fee tail
o example:
 O conveys “to A for life, then to B for 10 years, then to C for life, then to D”
 B has a remainder for a term of years
 C has a remainder for life
 D has a remainder in fee simple
 All of these remainders are vested
o remainders are either vested or contingent
 Vested:
 BOTH created in an ascertained person AND not subject to any condition precedent
 Contingent:
 EITHER created in an unascertained person OR subject to a condition precedent
o classify interests in order to avoid confusion
 example:
 O conveys “to A for life, then to B and his heirs if B survives A, and if B does not survive A, to
B’s children and their heirs.”
 Take each interest in sequence.
 First, “to A for life.” This gives A a life estate.
 Second, “then to B and his heirs if B survives A.” Stop at the comma, which ends B’s interest, and
classify it: B has a remainder because it is capable of becoming possessory on termination of the
life estate and will not cut the life estate short. It is a remainder in fee simple (“B and his heirs”).
It is a contingent remainder because it is subject to the express condition precedent, “if B survives
A.”
 Third, move on to the next interest, “and if B does not survive A, to B’s children and their heirs.”
Classify it: The interest is a remainder because it is capable of becoming possessory on
termination of the life estate and cannot cut the life estate short. It is a remainder to a class, B’s
children, in fee simple. It is a contingent remainder because it is subject to the express condition
precedent, “and if B does not survive A.” (Note: B and B’s children have alternative contingent
remainders)
o common law draws sharp distinction between vested and contingent remainders
 Future interests can be vested or contingent
o contingent:
 right of possession that depends upon the satisfactory resolution of some uncertainty
o vested
 certain to become possessory at some future time
o some future interests are called vested interests even if there is an unresolved certainty as to whether they will ever
become possessory
 Remainders
o future interests that become possessory after the natural expiration of prior possessory estate
 usually follow a life estate
 vested or contingent remainder
 contingent remainder:
 either owned by an unascertainable person (President in 2050) or possession is made dependent
upon satisfaction of some express condition precedent (to A if A shall have become a judge)
 vested remainder:
 may be indefeasibly vested, vested subject to partial divestment, or vested subject to complete
divestment
  indefeasibly vested remainder
o certain to become possessory at some point in the future; can’t be destroyed
 vested remainder subject to partial divestment
o held by known or ascertainable person who has satisfied all condition precedent to
possession, but who is a member of a class of people own the remainder, not all of whom
are known or have yet satisfied the conditions precedent
 life estate, then to the children of A who reach age 21
 vested remainder subject to complete divestment
o held by known or ascertainable person who has satisfied all conditions precedent to
possession, but whose remainder is subject to being taken away or divested if some
subsequent event occurs
 if O conveys BA “to A for life, then to B, but if B should become a lawyer, to C.
 B has a vested remainder subject to complete divestment and C has an
executory interest
o Vested Remainders
 example: O conveys “to A for life, then to B in fee simple.”
 B (an ascertained person) has a remainder not subject to a condition precedent.
 The word “then” following a life estate is a word of art meaning “on the expiration of the life
estate.” Whenever and however the life estate terminates, B (or her representative) will be entitled
to possession. B’s remainder is vested.
o Vested Remainder subject to partial divestment
 example: O conveys “to A for life, then to A’s children.”
 If A has no children, the remainder is contingent because no person qualifies as a child.
 If A has a child, B, the remainder is vested (subject to partial divestment) in B subject to “open
up” and let in other children.
 Contingent Remainders
o unascertained person: not yet born, cannot yet be determined
o if O conveys “to A for life, then to A’s children” but A has no children, the remainder is contingent because takers
not yet ascertained. if child is born, the remainder vests subject to partial divestment if other children born later
o if O conveys “to A for life then to B’s heirs” there are no heirs of the living, so takers not ascertained, therefore the
remainder is contingent and heirs will be ascertained upon B’s death.
 Executory Interests
o future interests created in a transferee that will cut short or divest another transferee’s possession or vested future
interest.
o all executory interests are contingent
o To limit the validity of uncertain future interests there is
 the rule against perpetuities (RAP)
 designed to destroy future interests that allow uncertainty about ownership to persist too long,
because uncertainty of ownership inhibits marketability of property and because there ought to be
a point beyond which the wishes of dead owners of property ought not to govern the present
 RAP destroys any future interest that cannot be proven will either vest, or fail to vest, no later
than 21 years after the end of some relevant life in existence at the moment the future interest
becomes effective
 rule of law, regardless of grantor’s intentions
 considers possibilities not probabilities
 what might happen test
 unless you can prove uncertainty of ownership will be removed, this rule will make future interest
void
 modern doctrine reform and temper rule
 USRAP waits 90 years and then reforms future interests still contingent to make them then vest
 Review of Future Interests
o five types
 Reversion (retained by the grantor)
 Possibility of Reverter (retained by the grantor)
 Right of Entry (Power of Termination) (retained by the grantor)
 Remainder (created in a transferee)
 Executory Interest (created in a transferee)
o Remainders
 contingent or vested
 contingent: subject to one or both of two uncertainties:
o granted to an unknown or unascertained person
o some condition precedent to the future right to possession
o Executory interest
 they divest (cut off) either:
 divest another transferee’s possessory or future interest – a shifting executory interest or
 divest a grantor’s interest at some future time –a springing executory interest
o Future Interests Retained by the Grantor
 Reversion
 created when a grantor conveys a lesser estate than he originally owned
 freely alienable during life and may be devised or inherited
 operation of law, need not be expressly retained
 doesn’t have to be fee simple – lesser estate. can be a conveyance of any estate less than original
estate, this will create a reversion in the grantor.
 pur autre vie- measured by another’s life
 a reversion is not created if you convey part of estate and simultaneously the rest
o ex: A conveys BA to C for life, then to D and her heirs.
 no reversion for A.
 C has a life estate
 D has vested remainder in fee simple absolute
o BUT consider this
 A conveys BA to C for life, then to D and her heirs if she survives C.
 Now D has a contingent remainder in fee simple absolute
 A has retained reversion because he might get property back. reversion
will be destroyed if contingency is satisfied.
 reversions are vested
o not subject to destruction by RAP
 Remainder distinguished from reversion: created in transferee, not retained by grantor
 Possibility of Reverter
 when grantor conveys same quantity of estate but with determinable limitation and right to future
possession if determinable limitation occurs
 A conveys BA to B so long as used as a warehouse
o B has a fee simple determinable
o A has possibility of reverter
 Not created in a grantee, this would be an executory interest
 Today most states permit possibility of reverter to be alienated inter vivos, devised, or inherited
o Future Interest Created in Grantees
 Remainders
 future interest created in a grantee that will become possessory upon the natural expiration of the
preceding possessory estate
o sometimes certain, sometimes possible to become possessory
o do not divest (distinguished from executory interest)
 Ex: O conveys BA to N for life, then to A and her hairs.
o A has a remainder. Certain to become possessory upon N’s death-natural expiration of
N’s life estate.
 Ex: O conveys BA to N for life, then to A and her heirs if A survives N.
o A has a remainder- not certain to become possessory-must outlive N.
 O conveys BA to N for life, but if A should win Nobel Prize, to A and her heirs
o A does not have a remainder (not even contingent)
o A’s future interest will become possessory by divesting N of his life estate so A has an
executory interest.
 Ex: H conveys BA to D for life, then to E for five years, then to H for life, then to W and the heirs
of his body, then to O and her heirs.
o D has a life estate
 o E has a remainder in terms of years
o H has a remainder for life
o W has a fee tail
o O has a remainder in fee simple absolute
 Remainders are either vested or contingent
Deeds
 all deeds must
o be in writing (per statute of frauds)
o identify grantor and grantee
o describe property to be conveyed
o state grantor’s intent to convey
o contain grantor’s signature
 Present covenants
o covenants of seisin: grantor warrants that he owns the estate he purports to convey
o covenant of right to convey: grantor warrants that he his the right to convey the property
o covenant against encumbrances: grantor warrants there are no encumbrances on the property (mortgages, liens
easements, covenants)
o called present because they are breached, if ever, at the time the deed is delivered
 Future covenants
o covenant of general warranty: grantor and his heirs/assigns warrant he will defend against lawful claims and will
compensate grantee for any loss the grantee may sustain by assertion of superior title
o covenant of quiet enjoyment: grantor and his heirs/assigns warrant the grantee will not be disturbed in possession
and enjoyment of the property by someone asserting a superior title
o covenant of further assurances: grantor and his heirs/assigns warrant they will execute such other instruments as
may be necessary to further assure the title
o future because the grantor promises to do a future act
 not breached until grantee or his successor is evicted from property, buys up paramount claim, or is
otherwise damaged
 Three types
o general warranty
 warrants against all defects in title whether before or after grantor took title
 contains all 6 covenants above
o special warranty
 only warranties against grantor’s own acts, not the acts of others
o quitclaim deed
 only conveys what interest the grantor has, no warranties.
o You get what you pay for. the more warranties the higher the price

Co-Ownership and Marital Interests

 all types of property may be owned simultaneously-concurrent ownership

 Tenancy in Common
o modern default position
o separate, but undivided interests in the whole of the property
 Joint Tenancy
o undivided interest in a whole single unit
o each joint tenant has a right of survivorship- when a joint tenant dies, his interest dies with him, and remaining
joint tenant or tenants own it all
 effective way to avoid probate
o common law
 only possible if joint tenants had four unities
 interest, time title, possession
 requirement have relaxed by statute
 but common law was that destruction of any unity severed JT and produced TiC
 today, a conveyance by one joint tenant will sever JT
 Tenancy by the Entirely
o form of joint tenancy limited to married couples
o unlike JT, survivorship right is indestructible- may not be destroyed by unilateral act of a single owner
o at common law, conveyance to husband and wife necessarily created TBTE
 every co-owners (except tenants by the entirety) have a right at any time to demand partition of the property
o divorce is effective partition for (TbtE)
 Partition:
o is in-kind (physical) unless that is impracticable or not in best interest of all co-owners
 if so, partition is by sale and division of sale proceeds
 each co-owner is entitled to possession of the whole
o but when one CO actually possesses entire property, courts disagree over whether the tenant-in-possession must
pay fair rent to the tenants not in possession
 most courts say that unless tenant-in-possession has ousted other tenants, there is no duty to pay rent
 ouster:
o either, refusing a co-owner’s demand to share possession or
o unequivocally denying that one’s co-owner is really an owner
 some courts say that a co-owner in sole possession has an obligation to pay fair rent regardless of whether
there has been an ouster
 co-owners must account to each other for rents from third party
 co-owners liable to each other for proportionate share of costs of ownership, but not for improvements
o improving co-owner can recover value only upon partition or sale
 TENANCY IN COMMON
o separate, but undivided interests
 each tenant in common owns the entire property but must share that ownership with the other tenants in
common
o a tenancy-in-common interest can be alienated, devised, or inherited separately from other tenancy in common
interests
o no survivorship rights
o ex: T conveys Roundhouse to E and G as tenants in common. If E conveys his interest to N, G and N are now
tenants in common. If G dies, devising his interest to M, N and M are now tenants in common.
o conveyance of property to 2 or more people who are not married is presumed to convey a tenancy in common
 presumption is rebuttable
 property that passes by intestate to two or more heirs is taken as TiC
o each tenant in common is entitled to possess entire property
 so one could possess entire property if no other cotenant objects
 sometimes they regulate the rights by a contractual agreement among themselves
o possible for tenants in common to own unequal shares and different estates
 A, B, and C own BA in equal shares as tenants in common. A conveys his interest to B. B and C are still
tenants in common, but B has a 2/3 share and C a 1/3 share. C conveys her interest to S for life, then to A
and her heirs. B is now a tenant in common with S (as to possession ) and with A (as to her remainder)
 JOINT TENANCY
o undivided share with survivorship rights
o any number of people can be joint tenants
o upon death of one, the share held by remaining increases proportionately
o ex: A, B, and C own equal undivided interests in BA as joint tenants. A dies, leaving his property by will to D. B
and C now own equal undivided interests in BA. A’s will is ineffective to transfer his interest in BA because the
nature of JT is that his interest expires automatically at his death, so he has no interest in BA to devise. C then dies
intestate, leaving E as his heir. B now owns entirety of BA by herself.
 when a joint tenant dies, his entire interest dies with him
o may only be created by an inter vivos conveyance or will
 property acquired by multiple heirs through intestate succession is taken as tenants in common
o common law thought of JT as tenants bound together as single owner
 per my et per tout (by the half and the whole)
 equal interest in the entirety
o JT not subject to probate (which is expensive, cumbersome)
o creditors of a JT must seize and sell the debtor’s joint tenancy interest during debtor’s life because his interest
disappears at death
o 4 unities
 at the same TIME
 under the same INSTRUMENT (title)
 with the same INTERESTS
 with the same RIGHT TO POSSESSION of entire property
 at common law, JT could not be created without the 4 unities satisfied
 if not, a TiC resulted
 law differs state to state
 time: JT must receive their interests at the same moment in time
 ex: O conveys BA to my son M and my daughter E if and when they marry, as joint tenants.
o obviously they can’t marry each other and unlikely to have an exquisitely time double
ceremony, so they wouldn’t be able to satisfy JT
 title: all joint tenants must receive their interests under the same instrument:
 deed, will, decree
 ex: E was sole owner of BA before marrying A. E conveyed B “to A and E”. This did not create a
joint tenancy because E’s interest was created by a prior instrument. common law didn’t
recognize transfers from oneself to oneself. So, E and A would be tenants in common.
o solution at common law- E would convey to lawyer or trusted person, who would convey
back to E and A as joint tenants. (straw man)-this met the four unities requirement- but
cumbersome and an empty formality
 so many states by statute provide that a person may create a joint tenancy by a
conveyance from himself to himself and another as joint tenants. (Riddle v
Harmon)
 interest: each joint tenant must have identical interest in the property
 1) same share of undivided whole
 2) same durational estate
 ex: G conveys a 2/3 interest in BA to A and a 1/3 interest in BA to B, as joint tenants. A and B
will take as tenants in common because no unity of equal interest.
 ex: G conveys BA to A and his heirs, and to B and his heirs, so long as BA’s library remains
intact, as joint tenants. B and A are tenants in common because A has a fee simple absolute and B
has a fee simple determinable
 this requirement doesn’t preclude holding a portion of an estate in JT and another portion as TiC
 ex: O conveys “half interest in BA to A and B, as joint tenants, and a quarter interest in BA to C,
as a tenant in common. A and B own an undivided interest as to half of BA in joint tenancy; C
owns a quarter undivided interest as a tenant in common, and O continues to own a quarter
undivided interest as tenant in common. If B dies, A will be sole owner of an undivided half
interest in BA, as a TiC with C and O.
 possession: each joint tenant must have the right to possess the whole property
 after creation, JTs may agree among themselves to divide possession or to deliver exclusive
possession
o Creation of JT
 common law presumed that a conveyance to two or more persons was JT
 every JD has reversed this presumption, now a TiC is presumed unless clear evidence of JT
 evidence sufficient to create JT
 clearly expressed intention of the grant itself
 best way “to A and B, as joint tenants with right of survivorship”
 evidence insufficient
 “to A and B as joint tenants”
o nothing about survivorship, can render usage inadequate to create JT
 “to A and B jointly”
o jointly is used colloquially to refer to any co-ownership
 “to A and B, joined together”
o not a term of art, lay reference to co-ownership
 “to A and B as joint tenants, then to the survivor and her heirs”
o ambiguous, mixed message
 severance of JT
 JT can destroy it at any time by severing, usually by conveyance and then a TiC results
  because 4 unities necessary to create a JT at common law and all four. must be sustained for
duration of estate, the destruction of any one of those after conveyance would sever JT
o rule still alive, but many courts rely on evidence of intention of the conveying party
 conveyance:
o if a JT conveys his interest to a third part or to another JT, the JT is severed as to that
interest.
o ex: T, D, and H are joint tenants. if T conveys his interest to B, the joint tenancy is
severed as to that interest. B owns a 1/3 undivided interest as TiC with D and H. D and H
continue to be JT with respect to their interests. if D then dies, B and H will be tenants in
common with H holding two thirds and B one third.
 unilateral severance: conveyance to self
o used to need to use a straw man
o possibility of injustice
 one JT not knowing the JT was severed and his interest would pass at death
through intestacy.
 CA deals with this by requiring conveyances be recorded, providing discoverable
notice of the change in legal status.
 mortgage:
 JDs differ as to whether JT is severed by the act of one joint tenant mortgaging his interest.
 resolution depends on whether JD adheres to lien theory or title theory
 Title theory:
o mortgage effects a transfer of legal title
o subject to an equitable right of the mortgagor (borrower) to reclaim title by paying off the
loan secured by the mortgage (equity of redemption)
o so, mortgage by on JT had the effect of severing JT because the unity of interest is
destroyed.
 couldn’t be restored by redemption because the unities of time and title wouldn’t
be present
o after the mortgage, the former joint tenants would become tenants in common and there
would be no right of survivorship
o criticized as inconsistent with intentions of mortgagor who likely never knew the four
unities of common law
 many JDs modify title theory to treat the title held by the lender (mortgagee) as
the one held only for purposes of securing the loan- Harms v Sprague
 Lien theory
o the mortgagee (lender only has a lien against the property (right to seize title if loan not
paid)
o mortgage by one JT makes no alteration to title and thus does not sever JT
o upon death of mortgaging JT while loan is unpaid, does surviving joint tenant have an
interest unencumbered by the mortgage or not?
 prevailing answer is that the surviving JT takes free and clear of mortgage
 clearly, any lender knows of this risk and would be reluctant to make a loan
secured by a property held in JT
 harms v Sprague
 criticized because it penalizes the unsophisticated lender and delivers a windfall
to the surviving JT
 Lease
 at common law, a JT leasing his interest severs JT because unity of interest destroyed because
leasing JT retained a reversion
 most JDs today do not regard a lease as a severance
 survivorship right continues, but like with mortgages, the problem is presented of whether the
lease survives the death of the leasing JT
o most JDs say no
o market affected as now
 some reluctant to lease such property
 others manage risk by demanding both JTs bind themselves to lease
 prospective tenants should investigate the landlord’s estate to ascertain risks
  Agreement
 JT can be severed by agreement as long as intention is clearly manifested
 usually in context of marital dissolution
 Bank accounts
 variety of reasons to make these joint tenancy bank accounts
o depositor might wish to make a present give
o might wish to use survivorship aspect as a will substitute (payable on death)
o might wish to use as convenience (like POA)
 because possibility of different intentions, courts don’t automatically honor the putative
survivorship rights but seek to ascertain the specific intentions of the depositor
 ex: O opens joint bank account with A, saying I want your name on this account so if I get sick
you can get money for me
o convenience account, not present gift intended
 ex: O adds A to signature card giving access to deposit box with $300k in cash. deposit box
agreement stipulate contents are owned in JT. nonetheless, the lack of additional specific written
statement by O that he intended to make a present gift to A negated the lease agreement’s
stipulation. significant value of contents influenced result. as value increases, probably more and
better evidence of a present gift is needed to prove JT.
 creditors can only reach portion of JT bank that equals the debtor’s contribution to account
o burden of proving the contribution is on joint depositors
 Tenancy by the Entirety
 only to husband in wife
 right of survivorship
 four unities requirement, plus marriage (think of it as 5 unities)
 half of states recognize TbtE
 common law presumed that marriage was husband and wife merged into one legal person. woman lost
legal identity, became legal ward of her husband
 not like this today to married women
 but still observe the TbtE owned by one person
 no severance
 neither tenant alone can destroy
 neither may obtain partition or acting alone convey entire estate
 right of survivorship indestructible so long as the marriage remains intact
 creation
 at common law, a conveyance to a husband and wife
 now spouses can own as JT, TiC, or TbtE
 common law
 husband the master, right to exclusive possession and survivorship right
 both rights could be alienated by husband inter vivos and seized by husband’s creditors wife only
had survivorship right, which could not be alienated without her husband’s consent (therefore
couldn’t be seized by her creditors)
 modern law
 spouses are equals
 equal right to alienate (half a dozen states provide this)
o creditors can seize possessory interest
 neither can alienate (majority of states)
o prevents creditors of either spouse from seizure of their interest in the tenancy)
o Sawada v Endo
o cannot unilaterally convey
 some states say creditors can seizure survivorship right but not possessory rights
 terminated by
 death
 divorce
o usually converts to tenancy in common
 joint action to convey property
 personal property
  common law didn’t recognize TBTE in personal property because husband upon marriage become
sole owner of wife’s PP
 now, permitted in most forms of PP
 deposit accounts not susceptible as it is impossible to maintain inviolate survivorship rights when
either spouse can withdraw at any time

 Rights and Obligations of Concurrent Owners

o Partition
 A court order to divide a property into separate portions according to each party’s relative interest in the property.
 parties can agree to sell
 first resort should always be to try to reach an agreement
 costly litigation should be last resort
o not required to try to negotiate first, but prudent
 court will order either
 1) physical division of property
 2) sale and division of the sale proceeds
 partition in kind: physical division
 preferred method
 courts will order this unless it is proved
o 1) impossible or extremely impractical
o 2) not in best interest of all parties
 Delfino v Vealencis
o when implementing, courts try to divide so that each is equal to ownership share
 difficult to do
 if not equal, recipient of disproportionately valuable parcel is obligated to pay owelty
(cash to other tenants) to equalize values
 ex: E and L own BA as TIC
 L has 2/3 interest, E has 1/3
 BA value is $120k
 after partition in kind, E has parcel of $50k and L of $70k.
 E will owe L $10k cash to equalize their proportionate shares (owelty)
 partition by sale
 not favored by courts but nonetheless the most common
o hard to divide most real property- houses, condos, buildings, retail stores
 rural undeveloped land the easiest
 net proceeds divided among co-owners in proportion to their ownership interests
o rents, profits, possession
 each coowner has right to possess entire property and no coowner may exclude fellow coowners.
o Exclusive possession by one co-owner
 JDs split on whether cotenant in exclusive possession is liable for their share of the fair rental value
 majority rule is that a CT in EP has not liability for her share of rental value unless
o other cotenants have been ousted
o CO in EP has agreed to pay rent
o Spiller v Mackereth
 minority rule is the CT in EP is liable for their share of fair rental value unless agreement otherwise
 rents from third parties: CT who receives these obligated to account to his cotenants – duty to account
 profits from the land
o if asset permanently remove ie minerals, cotenant must pay to other cotenants their
proportionate share of value of the removed minerals
o timber not necessary unless CT cuts more than their share
o Mortgage payments
 each cotenant obligated to pay proportionate share of mortgage interest. mortgage principal, taxes
 cotenant has no obligation to repair his property and can’t force payments for improvements from other
cotenants except upon partition, upon partition a repairing cotenant is entitled to be reimbursed for repair
costs in excess of her share
o Adverse Possession
 cotenant who tries to AP his cotenants interest
  every cotenant allowed to be in possession of the whole
 must be absolutely clear and unequivocal notice that he claims exclusive and sole title
o Fiduciary
 in general, cotenants don’t have fiduciary duties to each other as consequence of cotenancy
 Consider Swartzbaugh v Sampson
o she didn’t agree to lease, sought to cancel
o lost, what could she have done
o appear and demand he let her into position. if he didn’t, she triggers ouster and he will be liable for half the fair
rental value
o she could acquiesce to the lease and demand to receive half the rents
o partition the leasehold- probably a partition by sale as impossible to divide pavilion physically.
 who would buy? would Sam be paid for improvements? is it an improvement? can you deduct value of
walnut trees?
o hope he dies and lease expires with his death (they were joint tenants)
 Partnerships and coparceny
o tenancy in partnership connected to rights and obligations of business partners
o property owned by the partnership
o each partner has interest in property via partnership interest
 Rights and Duties of Co-Tenants
o Entitled to possess and enjoy the whole
 if a CT wrongfully excludes, he has omitted actionable ouster
o CT is exclusive possession not liable for rent unless he has ousted others
o CT must account to other CTs for rent from third parties depending on their interest
o CT in exclusive possession can’t acquire through AP unless he has ousted others
o Carrying Costs
 CT responsible for fair share: taxes, mortgage interest payments
o Repairs
 repairing CT has affirmative right to contribution for reasonably necessary repairs equal to share
o Improvements
 no affirmative right for contribution during cotenancy
 at partition, improver gest credit equal to increase in value
o CT must not commit waste
 actions can be brought for waste during life of cotenancy
o CT has right to bring action for partition

Co-ownership and Marital Interests Exam Tips

 ambiguous conveyance can be several different types of coownership
o what indicates intent of grantees?
o how could different parties use facts and rules to resolve ambiguities?
 legal relationships prone to conflicts
o what options law gives to exit legal relationships and convert to other types of ownership
 if coowners
o multiple rights and responsibilities. check them all
o consider future action
o consider partition
 marital property issues
o is state community property or separate property state
o what counts as property for purposes of division of marital property at divorce
 varies state to state
 sometimes by statute

Tragedy of the Commons

 property is economically efficient

 if everything is unowned, or owned communally, under conditions of scarcity people will unduly deplete the resource b/c
the individual gain is greater than the individual cost
 from society’s perspective, the aggregate gains from depletion are less than the total cost
o but to an individual, these additional costs are external
 tragedy of the commons
o individuals have a tendency to overexploits resources if not constrained by clearly defined property rights or gov
controls.
o property helps internalize those costs so individuals will make economically efficient judgments
o ex: if Atlantic cod fishery is unowned, fishers will take as much cod as they can since the cost of overfishing is
borne by others (external to them) eventually there will be no more cod. if each fisher had an individual property
interest in the fish, the incentive to overfish would be reduced and would in the long run benefit the fisher and
society
 externalities
o both negative and positive
o negative: does not have to internalize all negative consequences of your acts
 property rights can help force internalization by creating reciprocal obligations
o positive: when benefits of one’s activity are captured by a stranger to the act
 one uses his property and internalizes most benefits, but the use actually brings profit or value to another
 tragedy of the anti-commons
o “too many” rights
o where so many people have rights to veto the exploitation of a resource that coordination becomes impossible and
the resource goes under-consumed or underutilized

Landlord-Tenant
4 types of leasehold interests
 Tenancy for Years
o term of years or estate for years
o lease for a fixed period of time
 as short as or as long as
 if you know the termination date from the start
o if greater than one year, must be in writing
 satisfy the statute of frauds
 Periodic Tenancy
o lease continues for successive intervals
o until landlord or tenant give proper notice to terminate (typically in writing)
o it endures continuously (until above)
o can be created expressly
 ex: L conveys to T from year to year or week to week or month to month
 successive, open ended, continuous nature of the leasehold
o can also be created by implication
 3 ways
 when L is leased with no mention of duration
o but a provision is made for payment of rent at set intervals
 Oral term of years in violation of statute of frauds
o suppose L and T negotiate on phone for 5 year commercial lease, agreeing rent will be
paid on first of each month for the 5 years. Does this agreement create term of years? NO
 must be in writing if greater than a year to be a term of years
 oral term of years creates instead implied periodic tenancy because of the statute
of frauds that prevents it from being term of years
 holdover doctrine. in a residential lease, if L elects to holdover a T who has wrongfully stayed on
past conclusion of original lease, an implied periodic tenancy arises
o measured by the way rent is now tendered
o holdover: tenant who has stayed on past expiration of original lease
 could be transformed into implied periodic tenant if L abides the holdover
o even though no longer a lease as the original expired
o doesn’t tell you at outset when it terminates so notice is needed to terminate
 how much notice?
 at CL, at least equal to the length of the period itself
o so at CL, month to month means L or T has to give one month’s notice to terminate
 o exception at CL: if it ran from year to year or greater, only 6 months notice needed
o default mechanism to terminate
 modified in most states by statute that carefully prescribe how much notice is needed to terminate
 Tenancy at Will
o no fixed duration
o endures at will of L or T
o ex: “to T for as long as L and T desire”
o unusual- terminable at will of either party. could end at any moment
 but that freedom has been curbed by statute today
 by statute, a reasonable demand to vacate the premises is usually needed
 Tenancy at Sufferance
o created when a T has wrongfully held over past the expiration of the lease
o we give this wrongdoer a leasehold interest
 he becomes tenant at sufferance
 to permit landlord to recover rent until such time as the T is successfully evicted
 L has decided not to accept rent, etc. not accepting the holdover. wants to evict wrongdoer
o labeled a leasehold interest for expedience sake to give the L a mechanism to proceed against wrongdoer for rent
o L entitled to rent from T only until successful eviction is completed

 Tenant Duties
o 1) tenants’ duty to maintain the premises (repair)
o 2) tenants’ duty to pay rent
 T’s duty to maintain premises and make ordinary repairs
o not required to do more but not less
o not responsible for wear and tear, L is.
o maintaining premises- what is ordinary repairs.
o must not commit waste
 voluntary/affirmative waste: overt destruction
 permissive waste: neglect. pattern of remiss
 ameliorative waste: changes that enhance premises value
 w/o landlord’s consent gives rise to L cause of action
 T’s duty to pay rent
o T breaches duty to pay rent but is still in possession of premises, what can L do?
 two options:
 proceed against T for eviction
o requires that L proceed through the court (summary eviction proceedings)
o if you pursue this, T becomes tenant at sufferance and L is still entitled to rent until such
time as T vacates
 continue the relationship and sue for rent owed
 Landlord self-help (take back lease through force, stealth, etc) is outlawed-punishable civilly and
criminally
o What if T breaches duty to pay rent but is no longer in possession of premises? What can L do?
 T wrongfully vacated with time left on a term of years lease
 SIR (3 options) available to aggrieved L
 (S)urrender
o treat tenants vacating as a tacit offer of surrender which L accepts
o what is surrender? – T shows by words/conduct that he wants to give up the lease
o lease is amicably discharged
 (I)gnore the abandonment and hold T liable for each month’s unpaid rent as if T were still there
o L could eventually proceed in lump sum action
 only available in a minority of states for L to do nothing and let it accrue.
 (R)elet the premises on the wrongdoers behalf, holding T liable for any deficiency
o majority of states required that L at least try to relet the premises
 L does not have to succeed in finding a T for substitution, just a reasonable good
faith attempt at it. could be the attempt is unavailing and L can demonstrate that
o mitigation principle. opportunity for L to cut his losses (lease is a contract)
 Landlord’s Duties
o Duty to deliver possession
 vast majority of states require L provide T with legal possession of premises and actual physical
possession of the premises
 L must provide new T with legal right to be there (typically with lease, keys)
 must provide actual physical possession- meaning if prior holdover T still in possession at start of
new T’s lease, L has breached and new T gets damages.
o prior holdover is the L’s problem
o wasn’t always that way: CL did not oblige landlord to provide actual physical possession,
L just had to provide legal possession
 situs of lease often miles away from domain of landlord back when (wild west,
etc.)
 today, more congested residential, commercial, makes more sense to make L
provide both
o English v American rule
o Implied covenant of quiet enjoyment
 both to residential and commercial leases
 implied promise that every L makes
 implicitly promises to provide T with quiet use and enjoyment of leased premises
 means, L can breach this promise in 2 ways:
 breach by actual wrongful eviction
o if L wrongfully excludes T from possession of whole or part
 L commits constructive eviction
o not literal eviction
o L’s actions or patterns of remiss giving T no choice but to vacate premises
o to plead constructive eviction, must SING
 (SI) substantial interference due to L’s actions or failures
 could be permanent or chronic problem
 (N) notify: T must notify L of problem and L must fail to act meaningfully
 fairness to good faith L
 can’t fix what he doesn’t know
 (G) goodbye or get out: T must vacate within a reasonable time after L fails to
fix the problem
 is L liable for bothersome conduct of other Ts?
 as general rule, no
 exceptions:
o L can’t permit a nuisance on site
o L must control common areas
o Implied warranty of habitability
 fundamental implicit promise that every residential L makes
 not commercial!
 nonwaivable
 attempt to extract from T is unenforceable- null and void, repugnant to public policy
 premises must be fit for basic human dwelling
 modest standard
 not anchored in niceties or luxury
 basic, barest essentials for human dwelling be provided
o no heat in the winter
o no plumbing
o no running water
 aggrieved T. MR^3
 (M) move out and end lease
o confronted with these premises within rights to end lease
o BUT T doesn’t have to! can choose to move out but doesn’t have to
 unlike constructive eviction
 (R) repair and deduct
 o allowable by statute in a growing # of states
o allows T to make necessary repairs and deduct costs from future rent
 (R) reduce or withhold rent
o until court assesses fair rental value in light of defects
o must place withheld funds into escrow account-to show good faith, show he can pay the
rent. but not tendering it until court assesses fair rental value in view of defects and
defects are cured
 (R) remain in possession
o continue to pay rent
o sue L for damages
o Refrain from committing retaliatory eviction
 L must not take reprisals against good faith whistleblower T
 protects T who in good faith reports L for housing code violations
 L must not harass, must not raise rent, must not move to evict, or any other reprisals against reporting T

Assignment v Sublease
 absence of prohibition in lease, T is permitted to transfer leasehold interest in whole, accomplishing assignment, or in part,
accomplishing a sublease
 L can demand via clause that T get approval from L first
 but once L consents, can’t object to future transfers by T
 assignment
o arises when T transfers everything he has left under original lease to another
o L and T2 (assignee) have a relationship called privity of estate
 liable to each other for all of the covenants in the lease that run with the land
o but L and T2 not in privity of contract
o L can proceed against T2 for abuse to premises
o L and T1 (assignor)
 no longer in privity of estate (property-based and T1 no longer in possession)
 but they remain in privity of contract (they exchanged those original promissory words)
 T1 remains secondarily liable to L
 if T2 is unavailable as direct wrongdoer, T1 is the backup plan and remains on the hook as a secondary
matter
 sublease
o when T transfers less than everything he has under original lease
o relationship between L and T1 remains fully intact
o T1 and T2 relationship- T1 is liable to T2 and vice versa
o L and T2, share no nexus- not privity of estate or privity of contract
o if T2 abuses premises, this is between T2 and T1 and T1 remains liable to L
 An assignment is a full transfer of the lease between the tenant and the assignee. Therefore, since the tenant no longer has
any ownership interest in the property, there is no longer any relationship between the landlord and the tenant as far as the
property ownership is concerned. Therefore, there is no longer “privity of estate” between the landlord and the tenant. On
the other hand, there now is privity of estate between the landlord and the assignee. This is because the assignee now owns
the present interest in the property. This present interest will end only at the end of the lease when it will go back to the
landlord. Since the landlord’s right to possession is now successive to the possession of the assignee, the landlord and
assignee are in privity of estate.

 Privity of contract, on the other hand, still exists between the landlord and the tenant. This is because the original contract
that existed between the landlord and the tenant is still fully valid even after the assignment. In other words, the landlord
does not give up his or her right to enforce the lease agreement with the tenant just because the tenant transfers his or her
interest to the third party. There is no privity of contract, of course, between the landlord and the assignee because those
two parties never agreed to anything between themselves

 The sublease is only a partial transfer of interest from the tenant to the sublessee. The tenant is transferring part of his or her
interest in time to the sublessee. Therefore, there is no privity of contract or privity of estate between the landlord and the
sublessee in a sublease. The reason that there is no privity of estate between the landlord and the sublessee is that the
landlord’s right to possession of the property does not follow the sublessee’s right to possession. Instead, it still follows the
tenant’s right of possession. The landlord is, however, still in both privity of estate and privity of contract with the tenant.
 Privity of contract is still applicable for the same reason as with the assignment (the landlord and the tenant agreed on the
terms of the original lease). In addition, there is privity of estate between the landlord and the tenant because the right to
possession of the landlord still follows the right of possession of the tenant.

Landlord Tort Liability

 caveat lessee
o let the T beware
 in tort, to extent that T is personally injured on site
o CL baseline said L under no duty to make premises safe and assumed no liability for tort-based injury
o but, conceded 5 exceptions: (CLAPS)
 (C) common areas: even in tort, L must maintain safely common areas
 (L) latent defects: L must warn T of any hidden defects of which L knows or has reason to know
 (A) assumption of repairs: L who voluntarily makes repairs must complete them with reasonable care
 (P) public use rule: L who leases public space and should know that T won’t repair, given nature of lease
and its length, is liable for defects
 (S) short term lease, not public, of furnished dwelling- L is liable for defects on site

Nuisance
 two categories: public and private
 landowners right to use property is curtailed by nuisance
o prohibit use unreasonably interfering with
 another’s right to enjoyment of land
 right common to general public
 Public Nuisance
o unreasonable interference with a right common to general public
o no requirement that P have interest in any particular piece of property
o public rights encompass peace, safety, comfort, convenience
 common to all members of general public
 collective, not individual
o question of whether use of property is unreasonable interference with public right is a fact intensive analysis
 2nd R sets forth three factors
 whether conduct involves a significant interference with certain basic concerns that gov typically
charged with protecting ie public health, safety, peace, comfort, or convenience
 whether conduct is prohibited by statute, ordinance, administrative regulation
 whether conduct is of continuing nature or produced permanent effect and has a significant effect
on public right being interfered with.
o remedies available
 private individuals can recover for public nuisance
 sue to enjoin conduct
 but they must have suffered harm different from that suffered by other members of the general
public
 or a private individual can act as representative of general public if they
 have authority as public official or agency
 having standing to sue as representative of general public
 Private nuisance
o P must have interest in property being encroached upon
o D liable if his uses significantly encroaches upon another’s interest in the private use and enjoyment of his land
 significant harm or inconvenience
 more than inconvenience or petty annoyance
o P mut show encroachment is
 intentional and unreasonable or
 unintentional but negligent, reckless
o intentional:
 nuisance is continuing or recurring where D knows but takes no remedial efforts
 not necessary that D have malice or ill will
o unreasonable (utilitarian analysis)
 gravity of harm v utility of conduct
  Gravity
o extent and character of the harm
o social value of neighbor’s use being harmed
o suitability to locality of neighbor’s use
o burden on neighbor to avoid harm alleged
 Utility
o social value of actor’s conduct
o suitability of actor’s conduct to locality
o impracticality of actor’s preventing the harm
o coming to the nuisance is usually not necessarily a defense
 Coming to the nuisance refers to a legal doctrine which prevents a party from claiming nuisance if
said nuisance was present, and the party knew of that nuisance before they acquired the property
subject to the nuisance.
 Historically, coming to the nuisance functioned as a complete bar to a nuisance action.
 in jurisdictions which have adopted the 2nd restatement  however, coming to the nuisance does not
inherently bar an action for nuisance.
 In these jurisdictions, a court has discretion in determining whether/to what degree a plaintiff can
recover based on the actions and relative fault of both parties. 

Servitudes
A non-possessory interest in land that allows the holder to make use of the land or prevent something from being done on the property.
 Types:
o Easement
o License
o Profit
o Real covenant
o Equitable servitude
 Scope of Easement
o set by terms or conditions that created it
o unilateral expansion not permitted
 Termination of easement
o estoppel
 servient owner materially changes position in reasonable reliance on easement holder’s assurances that
easement will no longer be enforced
o necessity
 expires when necessity ends
 but if created by express grant, won’t end when need ends
o destruction
 other than through willful conduct of the servient owner
o release
 in writing, most customary
o abandonment
 must demonstrate the intent never to use easement again
o merger
 title to easement and title to servient tenement become vested in same person
o prescription
 interferes in accordance with AP
 Easement
o Easement: grant of non-possessory property interest in land
 parcel that derives benefit is dominant tenement
 parcel that bears burden is the servient tenement
o affirmative:
 most common
 holder right to do something on another’s land, the servient tenement
 right to cut across, right to water one’s cattle at another’s pod, right to lay power line
 how to create
 Prescription
 o satisfying elements of AP
 continuous
 open and notorious
 actual and hostile
 Implication
o implied from prior or existing use
o particular use on a parcel that survives division if use was apparent at time of division
and parties expected the use would survive division b/c reasonably necessary to the now
dominant tenement’s use and enjoyment
o think of these principal factors
 common owner- prior to division, the quasi-servient estate and the quasi-
dominant estate owned by same person
 reasonable necessity- prior use must be reasonably necessary for use and
enjoyment of quasi-dominant estate
 continuous use: prior use continuous not sporadic
 intended continuation: parties intended at division to continue the use after
 existing: existing at time of division
 apparent: prior use apparent (not necessarily visible)
 detected, inferred, reasonable inspection
 Necessity
o landlocked setting. if grantor conveys a portion of his land with no way out except over
his remaining land
 some states require showing reasonable necessity
 some states insist on strict necessity-if another way, no matter how inconvenient,
must be utilized
 Grant
o express grant. easement is considered a property interest in land. so statute of frauds
applies. if it endures more than a year, must be in writing (deed of easement)
o negative:
 entitles holder to compel servient land-owner to refrain from doing something otherwise permissible
 historically disfavored
 remember the basic categories by LASS: Light, Air, Support, Stream water
o some recognize right to scenic view as well
 how to create: MUST be created expressly in signed writing
 no natural or automatic right to one

o Easement is appurtenant to land or held in gross

o appurtenant:
 benefits easement holder in his physical use or enjoyment of his own land
 two parcels of land must be involved
 benefited parcel: derives advantage or gain thanks to easement (dominant tenement)
 burdened parcel: suffers imposition of easement (servient tenement)
 Easement appurtenant is transferred automatically with dominant tenement, regardless of whether
mentioned in the transfer
 Burden of easement appurtenant also passes with the servient land unless new owner is a bona fide
purchaser without notice of easement
 so when the servient owner sells his burdened land, the burden of that easement will [pass with
B’s servient land unless transferee is a bona fide purchaser without any form of notice of
easement
 ex: right of way across land, right to tap into drain on another’s land to more effectively drain on his land.

o gross: confers upon holder a personal or commercial gain not linked to holder’s use and enjoyment of his land
 only once parcel involved, the servient tenement
 ex: right to place a billboard, right to swim in another’s pond, right to place power lines.
 not transferable typically unless for commercial purposes
 personal advantages not transferable because considered personal to the holder
o grant of nonpossessory interest that entitles its holder to some form of limited use or enjoyment of another’s land
called the servient tenement.
 ex: right to lay utility lines on another’s land, right to cut across land to get to your land, water cattle at
another’s pond
o can be affirmative or negative
 most are affirmative
 the right to do something on servient land
 negative
 narrower in scope than affirmative
 entitles its holder to compel servient owner to refrain from doing something that otherwise but for
the negative easement would be permissible
 historically and today only permitted in these settings (LASS)
o (L) Light
 right to compel neighbor from building atop her structure that would impede my
access to light
o (A) Air
 right to compel neighbor to refrain from building to interrupt my right to
unobstructed airflow
o (S) Support
 right to compel neighbor to refrain from excavating in a way that would
detriment my parcel’s subjacent support
o (S) Stream Water from an artificial flow
 right to compel neighbor to refrain from doing anything that would impede my
parcel’s access to a flow of stream water from an artificial source
o minority of states there is a fifth category (S) Scenic View
 right to compel neighbor to refrain from building that would impede my access
to unfettered scenic vista
 Negative easement can only be created expressly
o no implicit or intrinsic right
o you have to barter and reduce understanding to signed writing
o either appurtenant to land or held in gross
 appurtenant when it benefits its holder of easement in his physical use and enjoyment of his own property
 two parcels must be involved
o dominant tenement derives benefit of easement
o servient tenement suffers the burden of easement
 ex: A grants B a right of way across A’s land so that B can more easily reach his land
o note two parcels are involved
o A’s land is serving B’s easement (servient tenement)
o B’s land is deriving a benefit b/c easement (dominant tenement)
o B has an easement appurtenant to B’s dominant tenement
 allows B to derive a benefit in B’s use and enjoyment of B’s own land
 appurtenant means relevant to, pertaining to, B’s use and enjoyment of B’s own land
 in gross: confers upon its holder only a personal or financial commercial benefit, not linked to easement’s
holder’s use or enjoyment of any of his own land
 only takes one parcel
 possible holder of easement in gross doesn’t even have land of his own
 ex: B acquires right to place billboard on your lawn.
 ex: right to swim in another’s pond
 ex: right to lay power lines on another’s land
 commonality in those three examples?
o servient land is burdened but there is no dominant tenement
o only one parcel involved
o easement appurtenant passes automatically with the dominant tenement
 regardless of whether mentioned in document of transfer
o burden of easement appurtenant passes with servient land
 unless the new owner is a bona fide purchaser without notice
o Easements in gross are not transferable unless for commercial purposes
  A has the right to swim in B’s pond.
 personal easement in gross
 not transferable
 considered personal, unique to their holder
 Co. has right to fish for bait in B’s lake.
 commercial easement in gross
 transferable, assignable
 Scope of easement
o set by terms or conditions that created it
 can’t be any unilateral expansion of an easement to benefit a non-dominant parcel
 you acquire E by express grant to use A’s driveway to get to your parcel BA. BA is the dominant
tenement, A’s driveway is the servient tenement. You the holder of the easement cannot expand it.
o how to create affirmative easement?
 4 ways PING
 (P) Prescription
o may be acquired by analogy to elements of adverse possession (COAH)
 (C) continuous use for statutory period
 (O) open and notorious (visible)
 (A) actual entry that need not be exclusive
 (H) hostile use- without servient owner’s consent
o everyday I cut across your lawn to get to my parcel. I have no right to that- trespasser!
but if I make continuous habit for statutory period, open and notoriously, actual-doesn’t
have to be exclusive for acquiring affirmative easement, hostile- no permission from
owner.
 over time, could transform into rightful holder of affirmative easement by
prescription
 (I) Implication
o easement implied from prior use
 A owns two lots. Lot 1 is hooked up to sewer drain on Lot 2. Then A sells lot 1
to B with no mention of B’s right to continue to use and enjoy that sewer drain
on Lot 2. Will an easement be implied on B’s behalf?
 Yes. court will imply an easement if
o the previous use was apparent and
o easement’s continuation is reasonably necessary to the
dominant land’s use and enjoyment.
 (N) Necessity
o court will imply easement of necessity whenever grantor conveys part of his land with no
way out except over some part of grantor’s remaining land
 I own 100 acres. I convey 2 acres to you, but in the middle of the 98-landlocked.
court will not abide landlocked situation.
 (G) Grant
o easement to endure for more than one year must be in writing that complies with formal
elements of a deed
 most easements are meant to endure that long
 deed of easement
o writing requirement linked to statute of frauds
 License
o Freely revocable, mere privilege to enter another’s land for a narrow purpose
 newspaper carrier, ticket holder, parking garage patron, etc.
o Not subject to statute of frauds
 no writing necessary, oral agreement sufficient
o Licenses freely revocable unless estoppel applies
 tickets included
 revocation barred when licensee has invested substantial money or labor or both in reasonable reliance on
the license’s continuation
o license: privilege to enter another’s land for some delineated purpose
o not subject to statute of frauds
 o don’t need writing to create, can be created orally
o but because informal, they are freely revocable at the will of the licensor unless estoppel applies to bar revocation
 estoppel applies to bar revocation only when licensee has invested substantial money or labor in
reasonable reliance on license’s continuation
o two classic license scenarios
 ticket cases
 tickets create freely revocable licenses
 you purchase tickets to show, but all other ticket holders are afforded entry except you. they can
do that.
 neighbors talking by the fence
 A is talking by fence to neighbor B. A says, B you can have right of way across my property. that
seemingly oral easement violates statute of frauds. creates a revocable license and A can have a
change of heart.
 Profit
o Entitled holder to enter servient tenement and take some resource
o can be appurtenant or held in gross
o profit gives its holder the right to enter servient land and take from it the soil or some natural resource
 E acquires right to go to top of mountain and extract minerals.
o shares all the rules of easements
 Covenant
o Covenant is a promise to do or not do something related to land
o Difference from easement: not the grant of a property interest
 covenant starts out as a contractual limitation or promise regarding land
 becomes a real covenant when it is capable of running with the land at law (meaning it can bind the
successors to the originally contracting or covenanting parties)
o Can be negative-Restrictive Covenants
 promise to refrain from doing something
o Can be affirmative
 promise to do something related to land
o When do covenants run with the land
 when capable of binding successors
 Running of the Burden (does burden of A’s promise to B run from A to A1)
 Writing: original promise between A and B in writing
 Intent: original parties must have intended promise would bind successors
 Touch and Concern: must t&c the land (affect parties’ legal relations as landowners
 Horizontal and vertical privity both required:
o vertical: non-hostile relationship between A and A1 (contract, blood relation, devise)
only time not there is interest acquired through AP
o horizontal: A and B at time of promise were in succession of estate-that A and B were in
grantor-grantee, L-T, Mortgagor-mortgagee, or shared some other servitude in common
 Notice: A1 must have notice
o actual (he actually knows), record (is it in the deed), inquiry (would the information at
time prompt a reasonable person to investigate)
 Running of the Benefit: does A’s promise to B run from B to B1?
 Writing
 Intent
 Touch and Concern
 Vertical Privity (horizontal not required)
o starts off as a contract regarding land.
o can be restrictive, meaning negative, or affirmative
o mostly restrictive covenants
 promise to refrain from doing something related to land
 I promise not to build for commercial purposes on my land
 I promise not to paint my shutters brown
o negative easement was so narrow as to what could be restricted, a new device came about
 beginnings in contract law-covenant
o affirmative covenant
  promise to do something related to land
 I promise to maintain our common fence
o lots of factual overlap with equitable servitude
 essential difference:
 look for relief P is seeking
o if P wants money damages to be made whole, construe the promise at law as a covenant
o if P wants an injunction, construe in equity as an equitable servitude
o covenant runs with land at law when it is capable of binding successors
 A promises B that A won’t build for commercial purposes on A’s land. A and B are original
promising/covenanting parties. A’s parcel is burdened by promise, B’s is benefited. A then sells burdened
parcel to A1. B sells his benefited parcel to B1. A1 now commencing commercial purposes. B1 wants to
proceed against A1 for money damages for promise that A made to B. Will B1 succeed?
 depends! on whether facts support conclusion that burden of original promise runs from A to A1
and if benefit of promise runs from B to B1.
o start with burden- for it to run with land at law several elements needed (WITHN)
 (W) writing- original promise in writing
 (I) intent- A and B intended that the burden would run
 (T) touch and concern- promise affects parties as land owners
 relevant to parties as land owners not just citizens at large
 (H) horizontal and vertical privity
 horizontal A-B (original covenanting parties) they be in succession of
estate (likely absent)
o at time A made promise to B, they were in a grantor/grantee
relationship (did A purchase from B? or vice versa?)
o or A and B in landlord-tenant relationship
o or A and B in debtor-creditor relationship
 vertical A-A1 and B-B1 (easier to establish)
o non-hostile nexus (contract or a deed or familial relationship)
o only absent if A1 acquired interest through AP
 (N) notice- A1 must have had notice of the promise when he took
 if all WITHN elements met, the promises binds the successors.
o analyzing benefit is slightly different analysis than burden analysis
 (WITV)
 writing
 intent
 touch and concern
 vertical privity
 Equitable Servitude
o Accompanied by injunctive relief
o An obligation or encumbrance on land, enforceable in equity, that takes the form of a burden or restriction on the
landowner. 
o to create, capable of binding successors, you need: (WITNES)
 (W) writing
 (I) parties intended promise would bind successors
 (T) touch and concern- affects parties as land owners
 (N) notice of promise when the successors took
 (E) (S) reminds us equitable servitude
 PRIVITY NOT REQUIRED to bind successors
 designed to alleviate harshness of covenant requirements
o implied equitable servitude
 courts allow it sometimes
 context of subdivider
 ex: A has lots of lots, sells 50 restricting to residential purposes
o then sells more with no restriction included
o B buys one of the later lots
o B builds convenience store
o Can B be enjoined?
 you must answer in equity!
Yes, if two elements apply:
 reciprocal negative servitude
o 1) when sales began, A had a general scheme of residential
development that included B’s lot
o 2) B had notice of restriction contained in prior deeds
 AIR
 actual notice
 inquiry notice-if neighborhood appears to conform to
common restriction
 record notice-publicly recorded docs
 doctrine of changed conditions
 someone subject to terms of ES argues- release me b/c neighborhood is so changed the restriction
doesn’t make sense anymore.
o to satisfy:
 show change is so pervasive the area’s character is forever altered
 mere pockets of limited change not enough
Adjusted Syllabus Topics

I. Acquisition of Property by Find, Adverse Possession, and Gift

II. Estates in Land
III. Future Interests
IV. Co-Ownership and Marital Interests
a. including: tragedy of the commons, mortgages
V. Leaseholds- Landlord and Tenant
a. including: racial/discrimination
VI. Law of Nuisance
VII. Law of Servitudes

Acquisition of Property by Find, Adverse Possession, and Gift

 Policy Objectives in Finder’s Law

o restore property to true owner
o reward honest finders
o deliver reasonable expectations of landowners
o discourage trespassers/wrongdoers
o encourage productive use of found property

 Abandoned Property
o true owner has voluntarily given up claim of ownership
o intent to relinquish ownership critical
o mere elapse of time not enough
o law presumes against this
 presumably, people want to keep what they own
 therefore, evidence of unequivocal intent to relinquish ownership necessary to establish
o if established, finder acquires title
 unless trespasser- unlikely to be rewarded for fruits of wrongful behavior
 owners of land- have strong/reasonable expectations of ownership

 Lost and mislaid property

o Finders
 have relative title
 good against the whole world except true owner, prior finders, and sometimes owner of land where it is
found
o Mislaid distinction
 property TO placed somewhere with intention of picking back up but accidentally left behind
o Rationales for protecting prior possession
  encourage finders to make productive use of finds and not hide them
 provide cheap, easy means of establishing presumptive title
o Finders v Landowners
 owner of where property was found (locus in quo)
 no conflict is L also owns the object
 general rule: trespassers lose as against L
 employee finder
 master-servant law: employee is agent of employer and has no independent authority to “find”
things for herself when on the job
 but if reporting find causes loss to finder, will they report?
o Invitee finders
 L invite others for specific/limited purpose
 invitee must surrender property if found while doing what invited to do to the L
o Public places
 lost property goes to finder, mislaid to L

 Bailors, Bailees, Third Parties

o bailee has better claim than TP and is entitled to damages from any third party who wrongfully injures the
property, but must turn over damage proceeds to bailor
o Bailors of voluntary bailment can recover from third party for injury to property if third party has not already paid
bailee
 Winkfield doctrine
o involuntary bailment: bailor can recover from a TP who has already paid bailee
 b/c bailor didn’t select bailee and ought not to be bound by the settlement attained by that bailee

Acquisition by Adverse Possession

 if TO of land fail to start legal proceedings to remove a person who AP land within period of SOL, TO is forever barred
from removing AP because AP has taken title to land and acquire whatever title the TO had

 Rationales
o sleeping theory: punish slothful owners
 plus adjudicating stale claims difficult (witnesses die, forget, documents lost)
o earning theory: people using land productively should be rewarded
 plus AP develops expectations of continued possession
o stability theory: enables disputes or doubts to be cleared by delivering title to who has occupied as if owner
 gives stability and breeds confidence in ownership

 Elements
o actually enter and take exclusive possession
o open and notorious
o adverse (hostile) to TO’s interest and under claim of right
o continuous for limitations period
o sometimes, must prove paid property taxes during limitation period

 First element: actual and exclusive possession

o actual entry: possessor actually, physically takes possession of land
 cause of action for ejectment accrues at that moment, clock on SOL starts to run at that moment
o Exclusive possession: possessor has excluded the public and owner
 not that just one AP can occupy-a group could acquire shared title
o sometimes, if. you enter without color of title, must show you substantially enclosed property or usually cultivated
or improved property

 Second element: Open and Notorious Possession

o must be readily visible to any inspector of property
o must constitute notice to owner that rights are being violated
o not about actual notice, just if AP’s acts are sufficient that an owner would know if acting as a prudent owner
 o counts if it is the type of occupation a TO would make
o boundary dispute? encroachment-
 if small and not clear and self-evident, doesn’t count as open and notorious unless owner has actual
knowledge of encroachment

 Third element: Adverse

o without consent of owner
o intention to remain
o hostile- but doesn’t mean malice or ill will, just no permission and claims right to stay
o subjective good faith occupation test:
 good faith belief AP owns property
 some JDs will not allow an AP who knows it isn’t theirs to ever acquire title by AP
o subjective aggressive trespass test:
 AP knows property is not his own, but intends to claim anyway (Maine doctrine)
 not adhered to because only awards very deliberate trespassers
o objective state of mind irrelevant test:
 majority view
 state of mind not relevant
 just focus on
 lack of permission
 claims of ownership
 Connecticut doctrine
o if AP disclaims ownership to persuade owner not to sue, adversity is destroyed, SOL clock stops
 can’t lull owner into loss of rights
o boundary disputes- if one L mistakenly occupies neighbor’s land, objective test applied
 if encroaching actions appear as those of TO, she occupies adversely

 Color of title v Claim of right

o claim of right: describes element of hostile/adverse
o color of title: one who has a defective deed that purports to deliver title and possessor does not know it to be
invalid
 satisfies adversity element (proof of presence under claim of right)
 some states require this to satisfy element

 Fourth element: Continuous

o AP must occupy continuously without interruption during limitations period
o occupy as continually as would a reasonable TO
o if abandons, continuity destroyed
o if intended to return, absence is like a sojourn
o short of full AP, intermittent use could satisfy a prescriptive easement (right to use property for limited purpose)

 Tacking
o can AP add possession of prior possessor to his own
 yes, if privity of estate exists (voluntary transfer of either an estate or actual possession of it)
o automatically follows on owner’s side once SOL starts to run

 Ouster
o a TO or TP can oust an AP and stop clock
 requiring SOL to start again if AP reenters
o if AP ousted by TP, TP cannot tack because privity is lacking (transfer not voluntary)
o if ousted possessor returns
 limitations period starts anew (harsh, not popular in America)
 does not interrupt running (considers TP a trespasser)
 possessor ousted by TP can tack new possession onto old possession but can’t take credit for TP
possession

 Extent of property acquired

 o depends on with or without color of title
o without
 acquire only land they actually physically possessed
o with
 possess all land described in defective deed if they occupied significant portion (constructive possession of
what wasn’t occupied)

 Disabled TO
o SOL provide for tolling (suspension) if owner disabled at time the cause of action accrues
 insanity, imprisonment, minor

 Lienholders/future interest owners

o some people not entitled to file suit so SOL doesn’t apply to them
o lienholders have claim on property but no right unless default/foreclosure
 claims not destroyed by SOL
o future interests (right to possession at some future time)
 AP doesn’t cut off their future claim
 when they become entitled to possession, limitations period starts running

 AP by tenants and co-owners

o increased evidentiary showing as presence doesn’t alert owners that occupying owner is making run for AP
o tenants not usually capable against L because entry was permissive
 would have to repudiate the leasehold so clearly yet stay in possession
 extraordinarily explicit and clear action
o coowners- usually can’t adversely possess b/c each co-owner has equal right to possession
 must oust the other co-owner and claim sole ownership while excluding co-owner from possession

 Adverse Possession of Personal Property

o usually shorter SOL
o hard because not usually open and notorious
o SOL should start:
 when loss occurs (except where fraud or concealment) OR
 when owner first discovers, or through reasonable effort should have discovered, the cause of action
(including identify of possessor)
 shifts focus onto owners conduct rather than possessor’s conduct
 encourages owners to report losses and undertake reasonable investigation

 Title Acquired by Adverse Possessor

o they acquire a new title
o former owner doesn’t transfer his title
 law strips him of title and creates a new one in the AP
o but new title can’t be better or greater in scope than former owner’s titl
 only what the old owner had
o can’t record AP new title b/c no written record
 AP can bring suit against former owner to quiet title, then judgment can be recorded

 Alternatives to AP in Boundary Disputes

o 1) Agreed boundaries
 agree, reduce agreement to writing, record conveyance
 if neighbors orally agree when there is genuine uncertainty, it is binding
o 2) Acquiescence
 if owner acquiesces in known encroachment for indefinite but long time, this is evidence of agreed
boundary
o 3) Equitable Estoppel
 if one neighbor does/says things that cause other neighbor to substantially rely to his detriment, the first
neighbor is estopped from denying his statements or actions
Acquisition by Gift

 voluntary transfer of property for no consideration

 donor must
o have authority to give and intend to give
o must be delivered (wrench of delivery)
o donee must accept

 inter vivos (during life)

o irrevocable

 causa mortis (in contemplation of impending death

o revocable if donor recovers and changes mind
o b/c presumed he made gift only because of impending death

 Intent
o donor must intend to transfer title
o not just transfer possession

 Delivery
o must be delivered: actually, physically
o if impracticable, symbolic or constructive delivery allowed
 deed, letter, keys
o makes abstraction of giving a reality
o objective evidence of intent and acceptance
o to agents: if proper, complete.

 Acceptance
o delivery triggers presumption of completed gift

Estates in Land

 Feudal System Origins

o William in the Conqueror in 1066 claimed ownership of all of England
o He handed out possession of separate parcels to henchman
 with seisin: each possessor a tenant of the King and continued possession was called tenure and depended
on his performance of services for the king
 he was seised of the land- he held possession from the King and owed services to him, his Lord
o first tenant (holding directly from the King) = tenant in chief
 he could transfer all or some of his possession rights to a lesser chief = tenant in demesne
o led to a feudal pecking order- lords above, below, all leading upward back to the King
 subinfeudation
o holders of Nonfreehold were not seised- no feudal duties to lord (b/c seen as low and untrustworthy)
o losing your estate
 escheat: if you died without heirs, returned to next lord up the ladder
 forfeiture: committed treason, violated obligations to lord, returned to next lord up the ladder
 wardship/marriage: died leaving a minor heir, next lor up entitled to profits until heir reached adulthood
and entitled to arrange minor’s marriage and receive payment from family of prospective spouse for the
marriage

 Fee Simple Absolute

o duration is perpetual
o “heirs” don’t exist until the person dies. meaning the estate is capable of being passed to the future heirs but hasn’t
been until owner of fee simple dies
 meaning heirs have no interest in the land
 if owner dies intestate (no will) state have intestate succession statutes for real property to pass
o inheritable, alienable, devisable
  alienable: convey entire estate to another or partially
 devise: transferred by will
 inheritable: intestacy, without a will, will still transfer to his issue, if none, to collateral kin, and if
absolutely none, it escheats to the state
o created at CL by “to A and his heirs”
 modernly, “and his heirs” not necessary to create
 usually, a grantor conveys entire estate unless grant is to the contrary

 Fee Tail
o virtually extinct, largely abolished by statute
 if created, usually resulted in fee simple absolute or something else
o “and the heirs of his body”
 only conveyed if by blood (lineal descendants)

 Life Estates
o possessory estate that expires upon death of specified person
o always followed by a future interest:
 either a reversion in grantor or remainder in TP
o pur autre vie: measured by life of person other than life estate holder
o can be defeasible
o holder of LE can sell, devise, give during life, not after death
o must consider remainderman- sales are rarely ordered unless it benefits life estate holder and remainderman or to
avoid waste
o life estate holders must not commit affirmative, ameliorative, or permissive waste
 Affirmative: acts affirmatively to damage land (burns barn, cuts down all timber, etc)
 Ameliorative: changes principal use of land to increase value of land (changes farm to movie theater)
 Permissive: fails to act reasonably to prevent deterioration (fails to fix chronic leaking rook, fails to pay
property taxes)

 Defeasible Fees
o Estate can be defeasible (subject to termination) upon happening of some future event
o fee absolute: no future event can terminate
o defeasible fee simple: subject to termination or divestment upon occurrence of future event
o 3 types: fee simple determinable, fee simple subject to condition subsequent, fee simple subject to an executory
limitation
 FSD: terminates automatically
 FSSCS: terminates only when proper action taken

 Fee Simple Determinable

o created when grantor intends to grant fee simple only until specified future event happens
o intent and words must be clear
 “for only so long a time as” “so long as” “until” “during” “while”
 “for the purpose of” does NOT count
o less than a fee simple absolute, so the grantor retains an interest called possibility of reverter (NOT a reverter
because if the event never happens, grantor won’t get estate back)
o transferable

 Fee Simple Subject to Condition Subsequent

o grantor intends to convey fee simple absolute but with string attached if a specified future event happens, the
grantor can take the fee simple absolute back
o “if BA should ever be used” “may enter and retake” “provided” “however” “but if” “on condition that”
o right to retake is the right of entry or power of termination
o not like a reverter, which automatically becomes possessory if event happens, requires the holder actually exercise
power to terminate
o transferable
o consider issues with restraints on alienation
 usually too onerous if the use restriction materially affects marketability adversely
 Fee Simple Subject to Executory Limitation
o divested or shifted from one transferee to another upon occurrence of future event
o the reverter not in the grantor but in a TP
o considered automatic if event happens
o restraints to prevent alienation considered void if total
 some partial are allowed-must be reasonable purpose and limited in duration

Future Interests

 Intro
o FI are legal interests not possessory but capable of becoming possessory
o 5 types:
 reversion
 possibility of reverter
 right of entry/power of termination
 remainder
 executory interest

 Reversion
o grantor conveys lessor estate than he originally owned
o alienable during life and may be devised or inherited
o created automatically by operation of law
o no necessarily certain- what if grantor dies before who he gave life estate to
o always vested because created in person who owned entire estate at moment of creation and grantor has not parted
with all he owned

 Possibility of Reverter
o grantor conveys same quantity of estate he had but with determinable limitation and the right to future possession if
and when event occurs
o alienable, transferable

 Remainder
o future interest created in grantee that will become possessory if preceding estate expires
o remainders are vested or contingent
o vested:
 created in a known person AND possession not subject to condition subsequent
 must become possessory whenever prior possessory estate expires
 natural expiration (ending of life estate upon death) is not a condition precedent
o indefeasibly vested remainders
 certain to become and remain possessory
o vested remainders subject to divestment
 created in a known person, no condition precedent, but it is subject to condition subsequent that if occurs
will divest remainderman of interest
 open or partial
 open if left open for entry of new members
o contingent:
 created in unknown person OR has condition precedent to possession

 Executory Interest
o in a TP, not the grantor
o springing: creates FI in grantee that divests the grantor
o shifting: FI in grantee that divests another grantee (cuts short preceding estate prior to natural expiration)

Co-Ownership and Marital Interests (including tragedy of the commons, mortgages)

 Principal Forms of Concurrent Ownership

 o Tenancy in common
 modern default
 own separate, but undivided interests in whole of property
 anyone can demand partition
o Joint tenancy
 each has undivided interest in whole unit
 right of survivorship (when one dies, his interest dies with him and remaining JTs own it all)
 avoids probate
 anyone can demand partition
o Tenancy by the Entirety
 limited to married couples
 survivorship indestructible (can’t be destroyed unilaterally)
 cannot demand partition (divorce would be the method here)
 The Restatement (Third) of Property made several changes to simplify these rules.

o 1. It eliminated the historical division of future interests into five types (reversions, possibilities of reverter, rights of
entry, remainders, and executory interests), and simply classifies all future interests as “future interests.”

o 2. It provides that all future interests are alienable, devisable, and descendible if the owner’s death does not cause the
interest’s termination (provided the interest is not subject to a valid restraint on alienation).

o 3. “It eliminates the traditional categories of future interests as indefeasibly vested, vested subject to complete
defeasance, vested subject to open, and contingent, and replaces them with only one distinction—vested or contingent.”

 Marital Property
o Community
 treats all property acquired during marriage (except gifts/inheritances) as owned by marital community
meaning each partner has equal interest in property
 includes earnings of either spouse and property acquired from earning during marriage
 excludes property acquired before marriage or during by gift, devise, or inheritance
o Separate
 recognized by CL
 property acquired during marriage owned by partner who acquired it
 tempered at divorce by equitable distribution laws
 courts ignore title to achieve equity in property division
 at death, tempered by spousal elective share statutes
 permit spouse of deceased spouse to taken some portion of deceased property, even if will is to
the contrary
o Commingling of separate and community property
 if impossible to trace, presumed to be community
 if community property transmuted into separate property, rules of community operate as default
o Upon divorce
 each spouse entitled to half of community property and all their separate property
o Upon death
 one-half interest of decedent spouse in community disposed according to decedent’s will. if no will,
descends by intestate succession
o Creditors’ rights
 debts incurred during marriage presumed to be community and community assets liable for satisfaction
 debts incurred prior to are separate obligation and only spouse’s separate property exposed to the creditor
o unmarried cohabitants can share property but cannot acquire status benefits of marriage
 common law marriage: not widely recognized but if it is, they share primary residence and other
characteristics of a married couple and property can be divided under marital property principles
 unmarried cohabitants can create express contracts to govern their property on death or termination of
relationship similar to law to married couples- generally enforceable
 extends to implied contracts from parties’ conduct
 Obergefell- right to marry to same sex couples
 Partition
o in-kind: physical
 supposed to be default unless impracticable or not in best interest of all co-owners
o by sale:
 division of sale proceeds among co-tenants

 Co-owner Possession
o each entitled to possession of the whole
o if one actually possesses, courts disagree over whether he must pay fair rent to those not in possession
 usually courts hold that unless ouster, no duty to pay rent
 ouster: refusing co-owner’s demand to share possession or denying he is really an owner
 some say that CO in sole possession has obligation to pay rent to others regardless of ouster
o must account to each other for rents from third parties
o liable to each other for proportionate share of costs of ownership, not for improvements
 improvements can be recovered only upon partition or sale
o creditor’s claims remain attached and are not destroyed or enlarged by death of a CT

 Tenancy in Common
o separate but undivided interests in same property
o can be alienated, devised, or inherited separately from other TIC interests
o no survivorship rights conveyance of property to two or more people not married is presumed to be TIC
 rebuttable by evidence
o property that passes intestate succession to two or more heirs is TIC
each entitled to possess entire property
o can own unequal shares or different estates
 rebuttable presumption of equal shares

 Joint Tenancy
o JTs own undivided share in the same interest in property
o presumptive form at common law (pur my et per tout)
 today, disfavored and must be created expressly
 some JDs have even abolished it
 will become a TIC or joint life estate with contingent remainder in the survivor
o severance converts interest into TIC w/o right of survivorship
o right or survivorship
 upon death of one, share held by remaining JTs increases proportionately
o when JT dies, interest dies with him
 avoids probate
o per my et per tout (by the half and the whole)
 multiple people own equal interest in entirety of property
o creditors have to seize JT’s interest during life b/c it disappears at death
o 4 unities must be equal
 same time
 receive at same moment in time
 same instrument
 deed, will, decree- the same
 same interests
 identical interests- same share of undivided whole and same durational estate
 same right to possession
 right to possess the whole
 can agree among themselves to divide on use-based agreement
o Severance
 a JT can destroy at anytime, usually by conveyance, resulting in TIC
 as to that interest
o unilateral severance
 conveyance to self
 CL this was void, would need a straw man
 o mortgage
 JDs differ if JT severed if one JT mortgages his interest
 lien theory
o the lender just has a lien, there is no alteration to title
o upon death, do surviving JT have interest unencumbered by mortgage?
 prevailing: JT takes free and clear
 title theory
o mortgage is transfer of legal title, thereby would sever
o Lease
 CL: if one leased, tenancy was severed
 today, most JDs to not see this as severance
 question is just if lease survives death of leasing joint
 most JDs say no
o severance by agreement
 yes, if intention clearly manifested
o Bank accounts
 depositor makes gift
 survivorship aspect as a will- payable on death
 convenience- permit other to manage money (POA like)
 lots of different intentions, courts seek to ascertain and don’t automatically honor survivorship rights

 Tenancy by the Entirety

o husband and wife
o 4 unities from JT required, plus marriage as the fifth
o CL: married couples one legal person (the husband)
 husband had right to exclusive possession and survivorship rights, which could be alienated by H inter
vivos and so could be seized by his creditors
 wife had only survivorship right, couldn’t be alienated without H’s consent (thus could not be seized by
her creditors)
o can’t be severed unilaterally thus no partition acting alone
o right of survivorship indestructible as long as marriage intact
o CL: conveyance to H&W created TBYE
 not observed today
o modernly: spouses as equals
 Married Woman Property Act
 eliminated disabilities on married woman
 restored her to separate legal identify
 equalized interests of H&W
o 1) W acquired equal rights with man to alienate possession and survivorship rights
o 2) neither spouse permitted to alienate their possession and survivorship rights
 prevents creditors of either spouse for seizure of TBTE

 Mortgages
o payments consist of principal and interest
 interest: each T obligated to pay proportionate share
 if CT pays more, can force other CTs to reimburse
 principal: each CO obligated to pay proportionate share
 if CT pays more he can enforce subrogation, including foreclosure sale

 Taxes:
o each CT obligated to pay proportionate share
 paying more CT can recover

 Repairs:
o no obligation to repair
o if he does, can recover upon partition or accounting for rents
 Improvements
o no duty to improve
 can recover upon partition

 Adverse Possession
o absolutely clear and unequivocal notice. nothing less will do

 Implied fiduciaries
o general, CTs have no fiduciary duties as consequence of co-tenancy
o can voluntarily assume
o implied if one acts to gain advantage of title over other CTs

 Marital Interests
o Obergefell v Hodges established that same-sex couples not excluded from benefits of marriage per due
process/14th amendment
o Pure common law doesn’t exist now, lots of changes
 single woman (feme sole) had power to use, dispose, and possess her own property
 married woman (feme covert) did not have these rights
 H&W were one and H was the One
 marriage bestowed jure uxoris on husband:
o right to use, possess, or convey wife’s property (exception of paraphernalia-clothes,
jewelry). even her earning were his.
 wife had no legal control of property
 wife did have right of support from husband (if divorce, alimony)
o on death of husband, right of dower: life estate in one-third of each and every possessory
freehold estate at any point during the marriage capable of inheritance by children born of
the marriage
 not life estates, leasehold, personal property, future interests
 today, instead of dower, replaced by Spousal Elective Share:
 entitles surviving spouse to take a specified portion of decedent’s
probate estate even if decedent left a lesser share by will
o Modern (mostly statutory) System
 rights on divorce
 almost all JDs have a form of equitable distribution
o to produced equitable (usually equal) division of marital property
o differences in what “property” is subject to equitable distribution
 sometimes all property owned by either spouse whenever and however acquired
 others limit to property acquired during marriage but no matter how
 some limit to property acquired by earnings of marital partners
 professional skills/degree:
 1) not property, but personal accomplishments that may or may not
produce property and thus not subject to equitable distribution
o so if one spouse forgoes opportunities in order to work to
support other in getting degree (“invests” in her spouse getting
a degree) w expectation she will get an ROI later in marriage
and if marriage terminated before then, she is not entitled to
payment for value of degree of estimated future earnings
o courts don’t see it has something transferable or inheritable
 2) property subject to equitable distribution.
o spouse who “invest” in other spouse’s degree or made
contributions of financial support for career advancement can
demand ROI and expenditures for support
 3) considering contributions to enhanced earnings capacity to avoid
unjust enrichment. doesn’t consider it marital property the value of a
spouses’ enhanced earning capacity but will consider direct or indirect
contributions made for the enhanced earning capacity by the other
spouse.
  4) restitution: some hold the degree is marital property and require
degree-enhanced spoused to reimburse supporting spouse for financial
support
 Rights on Death
 elective share (see above in CL section)
 Contracts
 prenuptials: generally not enforceable at common law. JDs split today
o can be enforceable if assets and earning power fully revealed to each other and the
substantive terms are not unconscionable
 spousal contracts
o some states: a contract by which one spouse agrees to care for another in return for
property at death is not enforceable for want of consideration- marriage means spouses
obliged to care for each other
o Community Property
 each spouse is an equal partner and thus has equal claim to material possessions derived from either
spouse during marriage
 marital property: property acquired during marriage except through gift, devise, or inheritance.
 community property: earning during marriage of either spouse and all property acquired from such
earnings
 excludes property acquired before or during by gift devise or inheritance (separate)
o character (separate or community) cant be changed unless both spouses agree
 at divorce: spouse entitled to half community property and all their separate property
 at death: ½ interest of decedent spouse in community property is according to will. in absence of will, by
intestate succession.
 creditor’s rights: debts incurred during marriage presumed to be community.
 debts incurred prior are separate and only that separate property is exposed to the creditor
o Common law marriage
 not widely recognized
 but if allowed, property divided under marital property principles
o Unmarried cohabitants
 can create express contracts or implied contracts (from parties’ conduct)

o CL: single woman had power to use her own property, not once married
 did have right of support from her husband and alimony in divorce
 right of dower on death
o Spousal elective share
 entitles surviving spouse to specified portion of decedent’s probate estate even if contrary to will
o Rights on divorce
 most JDs have equitable distribution statutes
 to produce equitable division of marital property
 some include all property owned by either, some property acquired during marriage, some to
property acquired by earning of partners
 personal property often exempted
 professional skills and credentials:
o subject to equitable distribution? when one spouse supports another while they get a
degree that would enhance earning power?
 1) some courts hold they are not property but personal accomplishments that
may or may not produce property. also not transferable, terminate on death- not
like a typical property interest.
 so if one spouse forgoes opportunities to work in support of other
(invests in spouse getting degree) with expectation she will get a return
later in marriage, if marriage terminates before, not entitled to payment
for value of degree or estimated future earnings (In re marriage of
graham)
 2) some courts treat degrees as subject to equitable distribution
 a spouse who invests in other or made financial support can demand
return on those investments and expenditures
  3) some courts say they are subject to equitable distribution but then said iss isn’t
as to value of spouse’s enhanced earnings capacity.
 consider direct or indirect contributions during marriage to provide a
basis for equitable division to avoid unjust enrichment
 4) some states don’t call it property but require degree-enhanced spouse to
reimburse for financial support -Mahoney v Mahoney

 Tragedy of the commons

o overexploitation of commons resources
o individuals have self interest in exploiting resources to fullest extent
o often statutes, government try to limit exploitation
o tragedy of the anticommons
 so many people have rights to veto exploitation that coordination becomes impossible and resource goes
under-consumed or underutilized
o externalities
 negative; one uses property, reaps all reward, no responsibility to internalize negative consequences
 positive: one uses property but use actually brings profits to another

Leaseholds- Landlord and Tenant including racial discrimination history

 Three types of leaseholds

o term of years
 single fixed period of time
 could even be set according to a future event (end of the war)
 long as or as short as (although some states have statutes)
 can be subject to early termination, just like how a fee simple can be defeasible
 “to the tenant for 10 years so long as he pays rent the 1st of each month”
 usually created by written lease (to satisfy statute of frauds)
 automatically ends on last day of term
 absent this, must give notice and be by mutual agreement
o periodic tenancy
 fixed period of time that automatically renews for same period unless adequate advance notice of
termination
 expressly created: rental agreement
 writing (as by statute of frauds) required only if period long enough to come within it
 implication created
 person possesses with owner’s consent and pays regular rent, periodic tenancy arises
o even with invalid leases or holdovers
 terminated by one period in advance
o tenancy at will
 can be terminated whenever by either party
 created expressly or by implication
 terminated by notice
 usually nowadays statutorily based
 CL didn’t require advance notice
o (4) Tenancy at sufferance
 tenant holds over after his term ends without L’s permission
 technically trespassing- but law characterizes him as T to prevent SOL from beginning to run for an AP
claim
o leases like a hybrid of possessory estate and contract

 Nonfreehold estate because tenant has right to possess but not title
o L carves estates out of his title and conveys to tenant
o L has a reversion in property, T has present possessor estate in property
 plus contractual rights and obligations for both

 Term of years
 o single, fixed term of any length
o can be defeasible (determinable or STCS)

 Periodic Tenancy
o recurring period of time
 month to month, year to year
o L or T can terminate but must be notice equal to period of time
 unless longer than a year, then 6 months advance notice

 Tenancy at Will
o no fixed time or period
o lasts as long as BOTH parties desire (bilateral termination-either can terminate)
o L terminates by giving notice
o T terminates by giving notice or abandoning property

 Holdovers
o T who remains in possession after right to do so has expired
 creates tenancy at sufferance
 lasts until L
o 1) evicts and recovers for damages
o 2) binds tenant to new term

 Licensees
o people permitted to enter lands for limited purposes
 delivering, storing, making repairs, visiting, attending performance
o revocable, nonpossessory

 Sublease
o T and sublessor create new tenancy with. reversion in master lease
o sublessor remains in privity of estate and privity of contract with landlord while subtenant is in privity of estate and
contract with sublessor
o common for leases to restrict ability to sublease or assign, but some commercial leases rule that L cannot
unreasonably withhold consent
o anything less than lessee’s entire interest (retains reversion)

 Obligations
o Delivery
 L must deliver legal right to possession to T
 some states require legal and actual physical possession be given (American v English rule)
 English is majority view- must deliver actual possession
o failure, tenant can:
 terminate lease, recover damages
 adhere to lease, withhold rent
 recover damages
o do not interfere with T’s quiet enjoyment
 typically residential
 L promises T won’t be evicted by someone with better title
o residential: maintain habitable condition
o many statutes forbid discrimination

 Assignment
o T and assignee intend and transfer entire leasehold to another
o assignor remains in privity of contract with L but not in privity of estate
o assignee in privity of estate with L but not privity of contract
o lessee transfers all interest in leasehold

 Requirements
 o Statute of Frauds
 requires all leases more than a year be in writing
 oral lease for longer void and unenforceable
 Lessee rights
o rights of a possessor
o can sue for invasion (ejectment to oust wrongful possessor)
 for trespass (recover damages for physical invasion)
 for nuisance (recover damages or injunction)

 Tenant Obligations
o pay rent
o avoid waste
o duty to repair
 ordinary wear and tear excepted
 no obligation for extraordinary or substantial repairs
o avoid damage
o not commit nuisance

 Discrimination History
o 1866: Civil Rights Acts
 all citizens have same rights as white citizens to inherit, purchase, sell, etc. real and personal property
 13th amendment: private and state behavior can be regulated
 42 USC 1982: prohibits private discrimination on basis or race with respect to sales or rental
o Fair Housing Act
 forbids discrimination
 exceptions
o sale or lease by owner of single-family dwelling
o owner occupied rental housing of 4 units or less
o 1982 and FHA
 presumptive case of discrimination if L’s or Seller’s practices produce discriminatory effect or disparate
impact
o 42 USC 1982: 1866 Civil rights act
 all citizens have the same right as white citizens to inherit purchase sell hold convey real and personal
property- now codified.
 supposed to place newly emancipated black citizens on same footing with respect to property rights.
 it now applies to private as well as state action because congress has power under section two of the 13th
amendment to regulate private behavior so discrimination on race or ethnicity as to real property
prohibited
 liable for damages/injunction
o Fair housing act 42 USC 3601-3619
 originally prohibited private discrimination of sale or rental or residential housing race color religion
origin
 now includes handicaps, children, sex.
 unless single family dwelling- just can’t advertise
 unless owner occupied rental with four unites or less
 worried about free association rights
 can’t reveal discriminatory intent
 injunction compensatory punitive damages
o FHA -residential housing with exemptions
o 1982 – all types but only racial or ethnic
 no exemptions
 can prove discriminatory effect or disparate impact.

Law of Nuisance

 Definition
 o Intentional use of one’s property that is unreasonable and substantially interferes with another’s use and enjoyment
of her property
o or unintentional use that is negligent, reckless, inherently dangerous that substantially interferes with another
person’s use and enjoyment of her property
o necessarily involves weighing utility of two competing uses. four possible outcomes:
 1) no nuisance, no remedy
 2) nuisance enjoined
 3) nuisance permitted to continue upon payment of compensation to affected for past and future damages
 4) No nuisance, but activity is enjoined upon payment of compensation to enjoined user for costs of
relocation
o can be public or private
 public: imposes harms on entire public

 Tests to see if use unreasonable

o if harm inflicted exceeds minimal threshold of discomfort no one should be expected to endure
o if gravity of harm inflicted outweighs social utility
o if harm inflicted is serious and actor could compensate for this without ceasing activity

 General principle
o sic utere tuo ut alienum non laedas: one must use one’s property so as not to injure another’s property

 Private nuisances
o substantial interference with private rights to use and enjoy land
o balancing harm and social utility
 courts consider
 extent of harm
 character of harm
 social value of use
 suitability of use to location
 burden of avoiding harm
 social value of conduct
 suitability to location
 practical difficulty of preventing harm

 Public nuisances
o affects rights held in common by everybody
o usually suit brought by public officials
o private citizens can if specially injured

 Trespass
o physical invasion of person’s land- interference with possession
o contrasted with nuisance- interference with right to use/enjoy
o possibility for overlap- sludge from hog farm crosses into land could be both

Law of Servitudes

 Types:
o Easements
o Covenants
o Equitable servitude

 Easement: right to use another’s land

o nonpossessory interest that gives holder right to use another’s land for limited purpose or to control an aspect of its
use.
o servient estate: parcel of land subject to an easement
 owner of the land is the servient tenant
o dominant estate: parcel of land benefitted by an easement
  owner is the dominant tenant
o appurtenant when it benefits land, regardless of who owns it
o in gross: when it benefits a particular person
o profit: holder can remove a natural resource from servient estate
o created by:
 express grant
 writing signed by grantor
 reserved
 owner retains easement when he sells land
 equitable estoppel
 irrevocable license
o if grantee’s detrimental reliance, can estop the grantor from revoking
 implication from prior use
 prior use, quasi-easement
 necessity
 necessary for access
o implied when subdivision of land eliminates access to public road
o courts presume vendor and purchaser must have intended an access easement b/c land
unusable otherwise
o 1) same person owned the dominant and servient estates when subdivided
o 2) subdivision caused one or more lots to be landlocked
o 3) easement is necessary to provide access to public road for dominant estate
 if these three satisfied, then it is implied
o some courts require absolute or strict necessity for this, some only require reasonable
 some states have statutes that set the standard
o only lasts as long as necessity exists
 quasi-easement (implied by past use)
o four elements
 same person owned dominant and servient
 subdivision crated the need
 apparent and continuous use of easement before subdivision
 b/c assumption that parties knew of use and intended to permit, but
mistakenly failed to include it in the deed
 apparent by reasonable inspection.
 reasonable necessity for easement for use of dominant estate
 if not pre-existing continuity, no basis exists that it should continue after
 more than temporary or casual
 prescription
 like AP
o hostile (nonpermissive)
o exclusive, not necessary b/c easement is not an exclusive possessory interest. just needs
to prohibits interference with his use
o uninterrupted- only if prescriptive use is prevented
o continuous- regular, more than occasional
o no taxes necessary
o tacking can occur through transfers of dominant estate
 can a grantor reserve easement for TP?
 many courts say no, that grantor must reserve for himself and then transfer
o but depends on JD, some allow it
o affirmative v negative
 affirmative: permits a person to use servient estate
 permits DT to use SE for a particular purpose
 negative: right to prevent specified uses of servient estate, not a right to use
 DT can prevent the ST from using SE for otherwise valid purpose
 CL recognized: for light, air support, streams
 now: view, conservation, historic preservation
 o appurtenant or in gross
 appurtenant
 one that benefits another parcel of land owned by someone else
o benefits whoever is the owner of that parcel of land because they own that land
o benefited land=dominant estate/tenement
o burdened parcel=servient estate/tenement
 in gross
 designed to deliver personal benefit rather than benefit land or landowner
 not attached to or appurtenant to land

 Licenses
o permission to enter licensor’s land
o revocable right to use another’s land for a particular purpose
o oral or written
o revocable unless made otherwise expressly or by conduct
o usually not assignable
o become irrevocable
 equitable estoppel- relies on license to make substantial improvements
 duration: so long can’t be revoked without unjust

 Covenants: promises concerning the land

o real covenants: enforceable at law, a promise that “runs with the land”
 1) enforceable between covenantor and covenantee
 covenantor and covenantee intended that it run with the land
 covenant touches and concerns the land
 parties are in privity of estate
 think WITHVN for burden and WITV for benefit
o different from easements because they aren’t attached to the land
 easement is like property law, covenants are like contract law
o original promisee of the benefited land and successors can enforce it against original promisor and his successors
o easements can also run with the land
 covenants are more promissory language (I promise)
 easements are more conveyancing language (I grant)
o affirmative covenant: covenantor promises to perform act on her or covenantee’s land
 contrast: affirmative easement entitles DT to perform some act on SL, not compelling ST to act
o created only by express agreement
o can they be enforced against subsequent owners?
 is there privity of estate
 vertical privity between promisor and his assignee and promisee and his assignee must exist for it
to be enforceable against successors

 Equitable servitudes
o like real covenants but only injunction as remedy
o enforceable in equity
o can be created by implication
o privity not required, but promise must be intended to bind successors, successor must have notice, nature must
touch and concern use of burdened land, and must benefit neighboring land
 think WIT for benefit to transfer
 think WITN for burden to transfer