Table of Contents

WHERE DOES PROPERTY COME FROM? WHAT DOES IT DO?..................................................................................................................... 2

- THE SYSTEM............................................................................................................................................................................................. 2
- HISTORICAL ORIGINS OF US LAND OWNERSHIP...............................................................................................................................................2
- JOHNSON V. M’INTOSH...............................................................................................................................................................................3
WHAT IS PROPERTY?................................................................................................................................................................................ 3
- RIGHTS OF PROPERTY OWNERS.................................................................................................................................................................... 3
- RIGHT TO USE/POSSESS............................................................................................................................................................................... 3
o Capture Creates Title........................................................................................................................................................................4
o Possession without Capture  Presumption of Title........................................................................................................................6
o Relativity of Title.............................................................................................................................................................................. 6
- RIGHT TO EXCLUDE.................................................................................................................................................................................... 7
HOW MAY LAND BE DIVIDED AND SHARED?........................................................................................................................................... 11
- CONCURRENT ESTATES.............................................................................................................................................................................. 11
- FUTURE ESTATES...................................................................................................................................................................................... 14
- RULE AGAINST PERPETUITIES (RULE FUTURE INTERESTS THAT CREATE UNCERTAINTY)...........................................................................................18
RELATIONS AMONGST NEIGHBORS'........................................................................................................................................................ 22
- NUISANCE.............................................................................................................................................................................................. 23
- OTHER CONFLICTING USES........................................................................................................................................................................ 26
o Light and Air................................................................................................................................................................................... 26
o Water Rights.................................................................................................................................................................................. 28
o Support Rights................................................................................................................................................................................ 29
- ADVERSE POSSESSION............................................................................................................................................................................... 31
 Where does Property Come From? What Does it Do?
- The System
o Policies of property
 Economic development and productivity (maximizing social wealth)
 Market-based rationale: exchanging goods through contracts
- Historical Origins of US Land Ownership
o Competing justifications
 First possession or occupancy
 Purpose: prevent disputes about title, encourage people to find and claim useful land
 Labor and Investment
 Should get property right for working and investing in the land
 Efficiency and Maximization of social welfare
 Property rights should be protected so owners can enjoy fruits of labor
o Could use this to argue for taking land from rich and giving to poor
o Marshal M’Intosh: to leave land with the Indians is to leave it in wilderness
 Two tenets for efficiency-based arguments
o Property rights should be protected to “assure to the cultivator the fruits of his industry’
and encourage productive labor”
o Property should be freely alienable because “every alienation imports advantage by
transferring property from one who values it less to one who values it more”
 Distributive justice
 Transferring property rights for purpose of avoiding gross inequality and ensure distribution to
those in need
o 1862 Homestead Act
o 1934 Social Security act
 Sovereign Authority or might makes right?
 Marshall’s central point in M’Intosh
 The discovery doctrine is the law because the government in charge said so, and the government
has to have the power to say who can acquire property rights and how
 Property rights are created by and favor people in power
o Slaves, married women, immigrants could not own property
- What did the Government do with the Indian Land?
o US government sold or gave away millions of acres to veterans, settlers, squatters, railroads, etc. –
o Homestead Act of 1862 granted most heads of families the right to “enter one quarter section or less quantity of
unappropriated public lands” after five years of settlement.
o Squatters: individuals and groups often asserted property rights inconsistent with the law and most of the time,
government recognized those assertions by granting formal rights.
- Johnson v. M’Intosh
o Facts: Johnson and Graham (p) inherited land bought from Indians but M’Intosh (d) claimed the same land
under a grant from the US government
o Rule: The Doctrine of Discovery gives the US government the exclusive right to acquire title to land (by
purchase or conquest) and Indian inhabitants retain only the right of occupancy
 Rationale: 3 lines of reasoning
1. Principle of Discovery: took a concept deciding which European nations got the land and
applying it here
2. Law made us do it
 3. Normally the conquered maintain property rights (public opinion) but not here because the
Indians are fierce, independent, and do not use the land productively
a. Efficiency Development Argument

What is Property?
- Rights of Property Owners
o Property is a set of rules to resolve issues around scarce and valued resources
o Ownership of property gives you the right to . . .
 use/possess
 exclude
 transfer
 destroy
- Right to use/possess
o Introduction to Possession
 To possess does not mean to own but it can be enough sometimes to make you the owner
 Certainty v. Context: 2 perspectives to solving issues on possession:
o Formalism  What is the rule?
 Steps:
1) define the category of the problem
2) find the rule
a. scholars, precedent, history
3) apply it to the case
 Goal:
 There is an answer to be found
 Pros:
 Certainty and Predictability
 Cons:
 lacks context, leaves out considerations that create narrow blinders to
get to a decision
o Pragmatism  What are we trying to accomplish?
 Steps:
1) what does the law do?
2) do we like the results?
a. Look to customs, norms, laws, persuasion, policy, fairness
-- should be asking people who have an ordinary sense of
the area in question
 Goal:
 to get the rule to accomplish the result in this context and arrive at a
normative decision
 Pros
 Context
 Cons
 Lacks certainty
 Raises issues for how to resolve problems in the future
 Differing values
o Possession is pragmatic
 depends on what we are talking about  what is the social purpose and what
are the characteristics of the thing?
  Possession is not ownership
 You can be in possession of something you are forbidden to own
 Though possession is a path to ownership and can grant you relativity of ownership over others
 The norms and realities of an industry/property type will often inform how one acquires property in that field
 Physical characteristics of the property
o If stationary and something you can wrap your hands around, then establishing
possession is just about bringing it into your control
o If mobile, possession will likely be granted given sufficient “certainty” of control
o Capture Creates Title
 Wild Animals  possession once “certain control”
 Pierson v. Post (doctrine of “certain control”)
o Facts: Post is chasing a fox using its hounds when Pierson kills it and carries it off
o Rule: Thompkins  Formalism
 To convert from no one’s to yours you must kill, wound, or capture so as to
deprive them of their natural liberty
 Doctrine of “certain control”
o Dissent: Livingston  Pragmatism
 The rule must be compatible with how we want to encourage people to use
resources
 Mobile v. Immobile Animals
o Rule: You can take possession of something that does not move but not something that
does move unless you change the relationship (create productivity) and limit movement
 Spray Painting a Deer vs. Harvesting Oysters
 Deer: NO POSSESSION
o (1) has not entered a new or productive relationship with the
deer and (2) creating gratuitous instances of conflict and
uncertainty
 Oysters: POSSESSION
o (1) a productive relationship and (2) cannot move  putting
them somewhere is equivalent to penning them
 Baseballs  possession with complete control
 Basics
o MLB has a rule that when a ball is hit it is considered abandoned property
o Consider the interests of the parties (weighs on judges’ decision)
 Financial v. Identity
 Vazquez v. Piazza (Financial v. Identity Interest)
o Facts: Vazquez caught Piazza’s ball, but Piazza claimed it was
his
o Rationale: MLB player v. 6-year-old consider if it was MLB
vs. 30 year-old
 Popov v. Hayashi (unequivocal dominion)
o Facts: P and D at a baseball game, Bond hits record beating ball, P glove stopped
trajectory and control was uncertain until he was tackled to the ground and hurt, D
found the ball while also getting tackled
o Rule: Requires unequivocal dominion (baseball customs) after incidental contact
 Formalism (didn’t work)  Pragmatism
 Pragmatism looks to custom
 o the custom in baseball is to catch it and hold it with full control
 Land at the Thompkins rule: certain control
 Court adopts rule for fundamental fairness: When a person who undertakes
significant steps to achieve possession of abandoned property and others
unlawfully interrupt the effort, that person has a legally cognizable pre-
possessory interest
 Solution:  equitable relief (both have equal claim to the ball “as against the
world”
 Why are they comfortable with this?
o This situation cannot be created or manipulated
o No one can game the system to create this scenario
o Isolated opportunity and the larger rule still remains
o Possession without Capture  Presumption of Title
 Willcox v. Stroup (possession trumps uncertainty)
 Facts: Wilcox had documents from SC Admin in Civil War, Wilcox tried to sell, SC gov tried to
prevent the sale
 Rule: Possession is sufficient legal evidence of ownership unless proven otherwise – burden of
proof rests on the non-possessor
o Rationale
 Law makes the presumption that possession is a legally cognizable proxy to
ownership
o Policy
 Stability
 Status quo vs. upsets
 Avoids opportunistic litigation
 Encourages people to take care of what they have
 Avoids conflict
o Relativity of Title
 Intro
 Property rights are relative
 Relativity of the parties in the conflict
 Possessor v. Others
o Armory v. Delamirie (finder’s right)
 Facts: chimney sweeper found jewel, took it to pawn shop, apprentice took
jewel and kept it
 Rule: A finder gains “such a property as will enable him to keep it against all
but the rightful owner”
 Justification
 would be destabilizing and create a lot of conflict to say anyone has
claims to something that someone has found
 would also incentivize secrecy and make it less likely the object will
ever surface again.
 Finder is being encouraged to put it on the market and back in the
official visible world of property (marginally increase the chance the
true owner will find it).
 Owner v. Possessor
o Was the property lost, mislaid, or abandoned?
 Lost: owner accidentally misplaced it
  Mislaid: owner intentionally left it somewhere and then forgets where they put
it
 Abandoned: owner forms an intent to relinquish all rights in the property
o Rule: Finders will lose against original owners of lost or mislaid property; but will win
against original owners of abandoned property
- Right to Exclude
o Introduction
 Trespass: unprivileged intentional intrusion on property possessed by another (Prima Facie)
 Intent: satisfied if the D engaged in a voluntary act such as walking onto the property
 Intrusion: occurs the moment the non-owner enters the property
 2 Faces of Trespass
 Dominant Face: Jacque
o Rigid rule – Ellickson
 Less Dominant: Shack
o Contextual rule – Hale
 Privileged trespass
1) The entry is done with the consent of the owner
2) The entry is justified by necessity
3) The entry is encouraged by public policy
 Competing Interests
 Financial v. Identity
 Principal Argument
 The owner sets the agenda
 Ellickson Argument: solving problems  Formalism:
 Jacque would be right – trespass action does is clearly and consistently is to protect the
prerogative of the owners to protect the property and to exclude everyone else unless the owner
has explicitly agreed
o Importance: someone must decide what is done on any piece of land – why should it be
the owner?
 Most of what happens on a piece of land is relatively localized in its effect to
the owner
 Less conflictual and time-consuming to let the owner make the decision
 Encourages people to do things with their property that others will value to
maintain market value and pass it on
 But this does not work if the boundaries of the land are porous which is why the
heart of the argument is
 Integrity of the legal system depends on strongly protecting the
legal rights that they have so they can rely on them and not resort
to self help
 Hale Argument: by solving these problems you create other problems  Pragmatic
 Property law fundamentally serves to allocate control over wealth and power over other people
in the social system
o How you solve the problems creates this other set of issues regarding inequality and
(Shack, Magadini view of the world – recognition that you need to not only know
whether it was a trespass but about the context)  property law on its own can unjustly
solve the problem
 Property law creates and maintains inequality
  Is the domination or the relative power of some people over others in the context before the
court justified?
o Trespass Remedies
 Intro
 Types of Remedies
o Typically remedy is clarification and expulsion
o Sometimes party asks for compensation (3 option)
 (1) Value of the damages/lost property
 (2) Value of the diminution in value of property due to the damage/trespass
 (3) Restoration Damages
 Restoration Damages
 Glavin v. Eckman (restoration damages)
o Key Takeaways
 Affirming restoration damages as a remedy if other remedies are inadequate to
compensate lost value of D’s violated property rights
 Highly contextual
o Facts: P and D owned adjoining lots, D ordered a third party to cut down P aged oak
trees to better their view; statute triples the damages  P gets 90k from trial ct
o Rule: Focus on deterrence and giving special weight to identity interest
 Rationale: What would it take to put back the 12 mature oak trees
 P favored over D – why?
o Identity interest: trying to create a wetlands
o Owner sets the agenda
o P plans to keep his land
o Operationalizes sentiment
o Deterrence
 Punitive Damages
 Purpose
o Deters from efficient trespass
 Relevant cases
o Glavin: trebling the damages
o Jacque v. Steenberg Homes, Inc. (right to exclude- formalism)
 Key Takeaways
 Trespass to property exists even without actual harm
 Affirms importance of right to exclude in and of itself, including the
appropriateness of punitive damages to deter trespass (although creates
uncertainty here)
 Formalist – not very contextual
 Facts: Steenberg building houses, want to go through P yard to get to property,
P refuses, Steenberg does it anyway bc 8 ft of snow and won’t harm land, P
sues and awarded $1 nominal and $100k punitive BUT Courts usually can’t
award punitive damages if there is no harm
 Rule: Ct changes the rule here and allows for punitive damages – shows the
emphasis placed on the property rights of owners and that the owners sets the
agenda
 Rationale: strict and powerful enforcement of owners’ rights at the
boundary of the property (Ellickson Argument)
  Purdy: Vicious circularity in this decision: “the law is the law and any
violation is a harm,” but at the same time, the court is changing the law of
damages in its jurisdiction. There’s a good reason for the Steenbergs to think
the precedent would be applied.
 Property law is designed to avoid and minimize what happened in
Jacque. Jacque defines and enforces a strong exclusion right, with the
goal of making these conflicts as rare as possible.
o Exceptions (Privileged Trespass)
 Consent – owner has given consent
 Public Policy – Fundamental rights in conflict
 State v. Shack
o Key Takeaways
 Property rights serve human values and are limited by them – Pragmatic
 Example of public policy justifying trespass
o Facts: workers on a farm and social workers are trying to come on to talk to the workers
about medical care and legal questions; but the farmer exercises exclusion right
o Rule: Ownership rights are always qualified in such a way that they cannot be used to
harm others BUT this might be different in a different context.
o Rationale
 Anti-formalist approach
 For a trespass to happen: you must know whether the owner’s assertion of their
exclusion power in these circumstances burdens legally relevant others to a
degree that the court believes it violates the principle to use what’s yours so that
you don’t harm others (Hale Argument)
 Court cares about the relative values at stake (context)
 Property owner (privacy, security, economic interest) v. workers
(public service, information, social life)
 But the pragmatism makes it uncertain going forward
 Necessity
 Elements
o (1) Clear and Imminent Danger
o (2) Reasonable prospect that your action will avert the danger
o (3) No viable legal alternative
o (4) Legislature hasn’t precluded this necessity defense by a clear and deliberate
choice
 No viable legal alternatives
o Commonwealth v. Magadini (necessity defense)
 Facts: Magadini trespassed on three properties when it was freezing outside, he
had gone to a shelter and been kicked out and had no other place to go.
 Rule: In considering the 4 elements of the necessity defense, the 3rd (no legal
alternative) does not require exhausting all legal alternatives. The person just
needs to have tried to find alternatives. The timeline should be restricted to the
moment of the judgment.
 Purdy: This is atypical – it can kick in under some circumstances but the real
scenario is much more Ploof v. Putnam
 The court typically looks down upon recurrent endangerment
 But here Not freezing > property right
o Jacque: you can always abandon economic pursuits
 How may land be divided and shared?
- Concurrent Estates
o Introduction
 Concurrent Estates require high trust and cooperation
 T-I-C both retain full possessory power
o If one person lives on the property and the other doesn’t  don’t owe rent BUT
carrying costs: i.e. bills, utilities, necessary improvements up until the rental cost and
A past that, the cost is shared
 BUT if cooperation ends
B o Ouster: classic case is changing the locks and NOW they must pay rent
o Constructive ouster: impractical or impossible for all to have equal opportunity to
possess
o Partition: physical division or splitting proceeds from forced sale

Tenancy in Joint Tenancy Tenancy by the Entirety

Common
Create - Default - Explicitly Created w/ 4 unities (1) at the same time (2) same - Explicitly
title (3) interest (equal shares) (4) possession - Requires marriage

Survivorship? - No - Yes: if any joint tenant dies  goes to other joint tenant - Yes
o Survivorship outweighs wills
Severance? - Yes - Yes - No – only upon death and divorce
o 2 people: goes back to tenancy in common
 A and B as joint tenants
 B severs joint tenancy
 A and B are tenants in common
o 3 people:
 A, B, and C are joint tenants
 C sells to Z
 Z is tenant in common with A and B
 A and B are joint tenants
Encumbrance? Carr v. Deking Tenhet v. Boswell (lease) Sawada v. Endo
- Yes and do not - Yes but the lease expires upon death of lessor No and Yes
need - In most states, joint tenants can encumber their interests - Neither spouse can encumber unilaterally –
permission of during their lives so long as the property is not sold, the need permission from the spouse
co-tenant
encumbrances do not usually survive the death of the - categorical so a unilateral lease would not
encumbering co-tenant be any more valid than the debt

o Types of Concurrent Estates

 Tenancy in Common
 Default
 Transferrable
o Each co-tenant can transfer or encumber the interests unilaterally and devise it or have
it inherited
 Carr v. Deking (conflicts in unilateral transfers) (partition)
 Facts: father and son own a piece of property as tenants-in-common,
yearly agreement with Deking to farm the land but son decides he
wants to renegotiate contract, dad goes ahead and signs deal with
Deking anyway without talking to son
 Rule: each tenant-in-common has the freedom to transfer their entire
possessory right unilaterally
 Rationale:
 o Two undivided possessory interests – was father and son and
after the transfer it is son and DeKing
o Son has two choices: (1) accept the contract and take the
money or (2) partition (here a physical partition would make
sense
 Unity of possession
o Co-equal right to possession, enjoyment, and use of the property regardless of the
percentage of ownership
 Partition
o Co-tenants may file to terminate co-tenancy and divide the property or proceeds
 Joint Tenancy
 Right of Survivorship
o When a tenant dies their share is divided and given to joint tenants
 4 unities
o (1) interest was created at the same moment in time
o (2) all the joint tenants must acquire title by the same title
o (3) Must possess equal fractional undivided interests and property lasts the same
amount of time
o (4) rights to possess the entire parcel
 Severance
o Joint tenancy is destroyed upon severance  tenancy in common between the selling
owner and the remaining owners
o A lease with an option to buy is not a severance (Tenhet)
 Tenhet v. Boswell (Joint Tenancy Severance)
 Facts: Johnson and Tenhet owned a piece of land as joint tenants;
Johnson leased the property to Boswell for 10 years with an “option to
purchase;” Johnson died, and Tenhet trying to establish sole right to
possession under survivorship
 Rule: Leases entered into by one joint tenant expire when the joint
tenant dies and ordinarily do not sever the joint tenancy the way a sale
does
o Though some courts see leasing as a means of severing joint
tenancy
 Rationale
o Shows us how far the 4 unities can stretch
o Presume stability of a joint tenancy unless intention to sever is
clear
o Interest terminated upon the debtor’s death
 Tenancy by the Entirety
 Only married couples
 Right of Survivorship
 Severance only on death or divorce
o While awaiting severance and partition  ouster
 Olivas v. Olivas (ouster)
 Facts: husband and wife got a divorce, husband moved out to live with
gf, husband brought suit against wife saying he was ousted and she
must pay rent
 
Rule: If the hostility flows only from the co-tenant that is out of
possession then there is no constructive ouster
 Rationale
o Here there is evidence that he left on his own accord to live
with gf
 No unilateral encumbrance
o Sawada v. Endo (No unilateral encumbrance in Tenancy by Entirety)
 Facts: Car accident in which Endo injures the Sawadas; Endo and spouse
convey their property held by tenancy by entirety to their son to escape
creditors getting the property upon damages; the transfer is fraudulent ONLY
IF those assets could have been reached for the liability
 Rule: Creditors cannot attach the property held by tenancy by entirety to satisfy
debts of only one of the individuals
 Rationale:
 Tenancy by entirety is rooted in security and unity of marital property
 No one owns any fractional interests and unilateral transfer or
alienation is impossible unless divorce or death
 Each spouse should be assured that they won’t wake up and have
nothing because the spouse attached it as collateral

- Future Estates
o Intro
 Important definitions
 Testator or testatrix: one who dies leaving a valid will
A B  Intestator: one who dies without a will
 Grantor: may create a future interest by establishing a trust
 Heirs: entitled to inherit property if the owner dies intestate (without a will)
 Devisees: those entitled to real property under a will

o 5 Types

Present Fee Simple Fee Simple Fee Simple subject to Fee Simple Subject Life Estate
Possessory Absolute Determinable a condition to executory
Interest (Automatic to Grantor) subsequent limitation
(Choice of Grantor) (Automatic to 3rd Party)

Future Interest Possibility of Reverter Right of Entry Executory interest Remainder: 3rd Party
(transfer to grantor (grantor can retake upon (transfer to a third-party Reversion: Grantor
None
automatically upon violation if she so upon violation)
violation) chooses)
Words of Duration Words of condition Words of duration or condition “for life”
Language
“to A” - “as long as” - “provided that” - “until (or unless) . . ., then
“to A and her heirs” - “during” - “on condition” to . . .”
- - “but if . . ., then to. . .”
“O to A in fee simple” “until” - “but if”
- “while”

 Fee Simple Estates

 Fee Simple Absolute: possessory and future interests all held by one person – owner has title outright
 o Future Interest: None
o O to A
o Shelley’s Rule: O to A, then to A’s heirs is read O to A
 Defeasible fees: present interests that terminate at the happening of a specified event OTHER than death of a current owner
o Fee Simple Determinable
 Future Interest: Possibility of Reverter
 O to A so long as used for residential purposes
o Fee Simple Subject To a Condition Subsequent
 Future Interest: Right of Entry
 O to A on condition that the property is used for residential purposes; in the
event it is not so used, O shall have a right to entry
o Fee Simple Subject to Executory Limitation (*RAP)
 Future Interest: Executory Interest
 O to A so long as used for residential purposes, then to B
 Life Estate:
 Future Interest
o Reversion  to the grantor
 O to A for life
o Remainder  to third-party
 O to A for life, then to B
 You can transfer a life estate to another for the remainder of your own life: “life estate for the
life of another” (PPI) and the future interest would be a remainder or reversion
 Remainders (2 types)
o Contingent (*RAP)
 If one or both conditions are met
 Remainder takes effect only upon an event that is not certain to happen
(i.e. grandchild graduating from law school)
 If the remainder will go to a person who cannot be ascertained at the
time of initial conveyance
o O to A for life, then to children of B: contingent if B has no
kids
 ALWAYS an implied reversion
o Vested (*RAP)
 Absolutely vested (will always satisfy RAP)
 Not subject to change
 O to A for life (or for a certain amount of years), then to B
 Vested remainder subject to open (*RAP)
 Arises in class gifts
 Already some in the group but group can potentially grow
o O to A for life, then to the children of B: vested subject to open
if B has a living child
 Vested Remainders Subject to Divestment (will always satisfy RAP)
 Vested remainder that may be lost due to an event that occurs after the
original conveyance
 O to A for life, then to B, but if B marries a lawyer, then the property
shall revert to O
 Policy behind Life Estate
 o In the case of mistrust, grantor wants to benefit grantee but reasons they don’t want the
grantee to decide where the land goes (Edwards v. Bradley)
o Presumptions and Policy
 Presumption: Fee Simple v. Defeasible Presumption
 Wood v. Board of County Commissioners (presumption of fee simple absolute)
o Facts: Woods “conveyed land for the purpose” of a hospital but then is used otherwise
and the Wood’s want the court to rule that it was a fee simple determinable or fee
simple subject to a condition subsequent
o Rule: ambiguous transfers create a full simple absolute
o Rationale: want for the new owner to have the autonomy to transfer property and be
motivated to increase the market value
 Formalism: certainty and reliability
 Presumption: exception if clear intent to limit subsequent owners rights ( AKA not wanting fee simple)
 Fee Simple: can leave it to whomever but if it is defeasible then it could be undone
 Life Estate: no matter what, A does not get to decide where the property goes
 Edwards v. Bradley (intent of the grantor)
o Facts: Viva gave her property to her daughter (Margaret) on the condition that she not
sell it and if she does then the ownership would go to her granddaughters; Margaret got
her daughters to sign off their rights in order to sell EXCEPT for Daughter A; Margaret
died and ordered property to be sold and proceeds split between all kids besides A; A
said this was a life estate not a fee simple because she was still dealt in
o Rule: The intention of the original landowner must be upheld when it can be reasonably
construed to show the intent
o Here – very clear that it was a life estate rather than a fee simple: O to A UNLESS
 Why do we allow previous owners to retain control?
 Interest in letting people set the agenda for their property’s use in the future
 Encourages people to give land charitably and accepting a diminution in market value because
people using the land have no incentives to increase the property value
 Courts view: if people want power over future generations they would just sell it but if
charitable or sincere reason to do it then let them and they will eat the cost
o Practice Problems
 O to A and her heirs
 Present Possessory Interest: Fee simple absolute: default form  Shelley’s Rule
 No future interest created (heirs is meaningless)
 O to A for life, then to A’s children
 Present Possessory Interest: Life Estate in A
 Future interest: vested remainder subject to open in A’s children
o Vested  you can identify the person it is going to and nothing further is required than
the end of A’s life
o Subject to open  A could have more children
o Note: if A had no children then it would be contingent remainder and if A dies before
having any there would be an implied inversion
 O to A for life
 Present possessory interest: Life Estate in A
 Future Interest: Reversion
 O to A so long as the property is used as a school
 Present possessory interest in A: Fee simple determinable (automatic)
  Future interest: possibility of reverter
 O grants A for “use as a railroad, but if the property ever ceases to be used for a railroad, O may terminate
the grant”
 Present possessory interest in A: Fee simple subject to a condition subsequent (option)
 Future interest: right of entry
 O to A for life then to B if B graduates law school
 Present possessory interest in A: Life Estate
 Future interest: contingent remainder in B
o If A dies and B has not graduated: the remainder is still valid and the property will
revert back to O until the condition is met
o If A dies and B dies never graduating: implied reversion
o If A is alive and B graduates  B then has an indefeasibly vested interest and gets the
property as a fee simple absolute once A dies
 O to A as a farm until 2043, then otherwise to B (if violated it goes to B)
 Present Possessory Interest in A: Fee Simple Subject to Executory Limitation
 Future interest: executory interest (vests automatically upon violation)
- Rule Against Perpetuities (Rule Future Interests that Create Uncertainty)
o Basics
 General Rule
 Future interests are invalid UNLESS they are certain to vest or fail within the lifetime of
someone who is alive at the creation of the interest or no later than 21 years after a life in being
 Life in being: life relevant to how the future interest will play out – people who must exist or
not exist that are alive at the time of conveyance
 Note: it matters whether the will is inter vivos (between living people) or a devise (upon
passing)
 EXTREMELY FORMALIST
 Purpose
 Invalidates future interests that may vest too far in the future
 Protects against dead hand control by limiting the time within which the identity of who will
own the property in the future may become certain
 Promotes alienability (transfer of ownership or property right) and productive use of land by
requiring that the identity of who will own the property be fixed within a certain period of time
o Steps
1) Identify the future interests created by the grant
 Immune from Rule
o All future interests in the grantor are exempt
 Includes reversions (following life estates and leases) and possibilities of
reverter and rights of entry (following defeasible fees)
o Absolutely vested remainders
o Vested remainder subject to divestment
 Subject to Rule
o Executory Interests
o Contingent Remainders
o Vested remainders subject to open
o Option Agreements
 Symphony Space v. Pergola Properties (option contracts subject to RAP)
  Facts: Broadwest sold a building to Symphony (nonprofit) for the
below-market price of 10k and leased back the income-producing
commercial property for $1 per year- Symphony granted Broadwest an
option to repurchase the building at various intervals up to 24 years
after creation at a favorable price
 Rule: The option agreement is subject to RAP and the provision
violates RAP because it can potentially be exercised after 21 years
(when dealing with corporations it is imply 21 years because no life in
being)
2) Identify what has to happen for the interest to fully vest?
 Fully vest means that all future holders are certain and any contingencies for their ownership are
removed
o Know who is going to get the interest, that they are going to get it, and what fraction of
the interest they get – any conditions have occurred and no recipients can be added
o No uncertainty left – all classes are closed and contingencies resolved
 Example: O to A for life, and then to A’s children
o To vest in anybody – A must have kids
o In order for this to fully vest – A must die after she has children
3) Identify all the lives in being at the creation of the interest?
 Life in being: a person alive or in utero at the creation of the interest who may have something
to do with vesting
o Includes those mentioned and those not mentioned who are alive and may affect vesting
4) Is there anyway, however unlikely or in defiance of biology, in which the future will vest more than 21 years
after death of all lives in being?
 If yes – RAP is violated – Strike the Clause
o Hints
 Imagine everyone dies tomorrow
 The question is whether the interest might only fully vest outside the
perpetuities period
o It is about uncertainty lasting not about time itself
 Ex: O to A for 1,000 years then to B is okay because it is vested in B at the time
of the grant
o Remedy
 Eliminate/strike out the offending language until the sentence makes grammatical sense or invalidate the
entire grant
o Common issues
 Attaching conditions on use that can be triggered by anybody will often violate RAP
 Ex: O to A, but if land is ever developed, then to B
o Fix by attaching the condition to a specific named person or for a specific period of
time
 Remainders to potentially after-born children conditioned on their completing an action
 Ex: graduating from law school
 Two generations removed will not work
 In situations like O to A for life, then to A’s grandchildren it does not work
 But one generation can work
 O to A for life, then to O grandchildren because when O dies all of their children are alive, their
children are lives in being and by the time they are dead- you will know if they have kids
o Practice Questions
 O to A but if land is ever developed then to B (INVALID)
 PPI: A: fee simple subject to executory limit
 FI: B: executory interest
 RAP issue: YES
o Lives in being: O, A and B
o Possible that after death of all + 21 years, someone might develop the land
 For it to fully vest – the land must be developed by ANYONE: (no personalized
condition)
 Strike Out Result: Fee Simple
 O to A but if A seeks to develop land then to B (VALID)
 PPI: A: Fee simple subject to executory limit
 FI: B: executory interest
 NO RAP issue: For the interest to vest in B, A must develop the land – this can only happen
during the life of A (a life in being)
 O to A for life then to B when she reaches 25 (VALID)
 PPI: A: Life Estate
 FI: Contingent remainder (vests once 25)
 NO RAP issue: At the end of B life, we will know if she reached the age of 25
 Note: if A dies before B turns 25, the property reverts in the meantime to O (or heirs) with the
contingent remainder still in B
 O to A for life then to A’s children who reach 25. (INVALID)
 PPI: Life Estate
 FI: Contingent Remainder subject to open (vests once 25)
 RAP Issue: A could always have after-born children, and those children could conceivably
reach 25 more than 21 years after the death of the lives in being
 Note: it does not matter if A already has children at the time of the grant that are less than or
older than 25 because the issue is that it is a group that is subject to open
 Strike Out Result: simple life estate
 O to A for life then to A’s grandkids (INVALID)
 PPI: A: life estate
 FI: grandkids: contingent/vested remainder (depending on if any are born yet) subject to open
 RAP Issue: always assume A can have more after-born children: all the lives in being could die
for 21 years before these after-born children have any grandchildren
 Strike Out Result: Simple Life Estate
 O to A for life then to O’s Grandchildren (Devise) (VALID)
 PPI: A: Life Estate
 FI: Contingent/vested remainder subject to open
 NO RAP issue: ONLY because this is a devise so O is already dead and can have no afterborn
children – so at the time the grant is made all of O’s children are alive and by the time they are
dead the class of grandchildren will be fully vested
 O to A for life then to A’s first child to pass the Bar exam (INVALID)
 PPI: Life estate in A
 FI: contingent remainder
 RAP Issue: A could have a kid, then die so all lives in being are gone – then the kid is not
guaranteed to have taken the Bar within 21 years of that death.
 Strike Out Result: simple life estate
 O to A for life then to A’s widow for life then to A’s kids then living (INVALID)
  PPI: A: life estate
 FI: contingent remainder
 RAP Issue: issue is because A’s kids must be living (making it contingent)
o we don’t know who the widow is – it could be anyone so they are a class NOT a life in
being
o After O and A are dead for 21 years, A’s widow and some children might still be alive
and we are still wondering whether the children will outlive the widow
 Strike Out Result: Life estate in A’s widow then implied reversion back to O’s heirs
 O to A for life then to A’s widow for life then to A’s kids (VALID)
 PPI: A: life estate
 FI: contingent remainder
 NO RAP issue: because once A dies, all A’s kids are alive and the future interest vests
immediately once the kids are born
 O to A for life, then to B (wife of A), then to A’s children who are then living (VALID)
 PPI: A: life estate
 FI: vested remainder  contingent remainder
 NO RAP issue: because B is a life in being and we will know at the death of B whether any of
A’s children are still living
 O to A for 1000 years then to D (VALID)
 PPI: Fee simple subject to executory limitation based on time – odd
 FI: vested remainder in D
 No RAP issue: because the passage of time is not an issue – nothing has to happen except for
the passage of time for D to get his FI

Relations Amongst Neighbors'

Conflict Type of Law Notes

Doctrinal: All things considered standard

Nuisance
of reasonableness
Light & Air/Lateral Doctrinal: Specific rules
Support/Surface Water/
Contracts: Arise from agreements for Created to avoid nuisance
neighbors' jointly interested in the Justifications for Contracts of Easement/Covenant
burdened land - Contracting owners know better than anyone their own interest
- Must be a mutual agreement/free choice with knowledge of the
interest
Easements/Covenants
Condos
- Covenant and contract model gets expanded in scale and force of
normative justification (free choice) in context of condos
- Social contract: agree to be governed by one another in exchange for
certainty, order, safety, and structure
Zoning Statutory
- Competing Interests
o Policy Arguments
 Rights (Use v. Security)
 These arguments appeal to fairness or justice in social relationships. Although landowners are
free to use their property as they wish, they do ‘not have an absolute right to use the land in a
way that injures the rights of others”
o Pro-Use: “Freedom of Action”
 Landowners claim the right to use their property within limits of ordinances,
statues, and restrictions of record to serve their needs
o Pro-Security
 Property owners have right to have one’s property protected from harm,
including interference from a neighbor’s property use.
 Social Utility (Competition v. Secure Investment)
 These arguments are about how legal rules may incentivize particular kinds of land use and
discourage or prohibit others in order to achieve a socially desirable outcome
o Promoting competition
 Some argue that social welfare is maximized when government deregulates
economic activity, allowing property use and development as owners see fit.
Shielding property holders from liability related to their development
encourages investment in socially beneficial economic activities
o Protecting security of investment
 No one will invest to develop property if the investment is not secure
 Must provide security for justified expectations
 General Chess moves
 D: No one will develop if liable.
 P: But no one will develop if they know it can be ruined.

- Nuisance
o General
 A nuisance is a substantial and unreasonable interference with the use or enjoyment of land
 Opposite of RAP: highly contextual standard – looks to context, narrative, and details
 Comes from the power to use  you have the power to use but through the lens of sic utere and
up to the point in which you are substantially and unreasonably harming your neighbor
 Case facts
 Dobbs v. Wiggins  Nuisance
o Facts: Dobbs lived on property and Wiggins ran a dog training program that created a
ton of barking and noise- substantiated by neighbors, claim they cannot spend time
outside and do not sleep well
 Boomer v. Atlantic Cement Co.  Nuisance
o Facts: D operates a cement plant that injures neighbors' homes through smoke and
vibration
Substantiality (Normative) Unreasonableness

- Focuses on (p) interest in autonomy and
security.
o how much trouble is the activity
causing? How bad it it? (contextual-
depends on lots of things)
- Focuses on (d) interest of autonomy and initiative
o Does it make sense to stop D? Is it more of a hassle for P than they can deal
with?
o Is it a burden that cannot be justified
- Reasonableness (3 Factors)
- Objective: the conduct’s effect on a 1) Usefulness of the activity
reasonable person - Is D engaged in a useful enterprise?
o one that offends someone who is not - What is the extent of the harm?
unduly sensitive. - Does the nuisance generate money?
- Must be physically offensive to the senses to 2) Character of neighborhood
the extent that it makes life uncomfortable.
o Noise, smoke, vibration, dust, fumes,
- Is the area well suited to the offensive activity?
and odors produced on the D’s land - Can play into justified expectations: in the countryside dogs are common
3) Timing
Wiggins - Justified expectations: which came first: P or D’s nuisance?
- Impact on gardening, open windows, outdoor - Refers to the sequence of activity and not ownership
parties cannot sleep through the night
Boomer
- If Neighbor begins activity that bothers you after you move there, you have
a stronger nuisance claim
- Substantiality is unquestionable
Wiggins
1) He is making money selling these dogs
2) The neighborhood is fit for this – farmland
3) But the Dobbs came first
Boomer
1) TONS of money, HUGELY useful, harm is LARGE – larger societal interest of D cannot
be shut down but cannot shut down P right to enjoyment so this must be settled in
remedies

o Remedies
 Basics
 Remedies are a way to balance cost and burdens across parties – split the difference
 If there is a nuisance  the court decides injunction v. damages by considering
o Economic value of both side’s interests
o Qualitative nature of interests
o factors above
o And Availability of mitigating measures
 Can the offensive thing be reduced?
 Is modification of the facility practical?
 Injunctions
 When is it appropriate?
o Clear imbalance between value of P and D interests
 D interest can go away and it does not matter
o Substantial information to make a reasonable judgment about how to resolve the
interests
 Wiggins:
 Takeaway: Remedies can strive to find the point of balance
 The court needs to strive to drive Wiggins dog activity down to the
level of Dobbs justified expectation.
 Find the point where they can go outside and sleep while Wiggins can
still make money.
 Damages
 When is it appropriate?
o Harm done to P is high but the production and high value of the activity requires D to
keep doing what they are doing
 Boomer
 Takeaway: Cost-benefit analysis for whether to issue injunction
 Set a price for the value of use and enjoyment P is losing and make D
pay for it
 
Damages instead of injunction because third-party impact but cannot
ratchet down cement plant and make it nice to live next to – cannot
give P what they want but give them $
o Law or asymmetric information on injunction
 The court does not want to invite unintended outcomes because they didn’t
have enough information
 Consider Coase Theorem
o Normatively: the maximum economic value is identical with maximizing value overall.
o Know how to design remedies to induce bargaining
 Ex: Fontainebleu: the addition will add 50k to Fontaine and harm Eden Roc
$30k – the added value for Fontaine is higher so the court does nothing
 But if the Court enjoins: enough value that Fontaine will pay Eden Roc
up to the cost of social value that they are gaining
o Pay them off and still have something for themselves
o Injunction as a (choice of entitlement) would create the best
potential to bargain but the Court didn’t do that.
 Takeaway: if everyone is fully economically rational, then the use that
adds more value is going to happen one way or the other
 Ex: Boomer
 Injunction: Boomer would impede it but it is hard to bargain with 60
homeowners – so the court does it for them
 Takeaway: when bargaining would be hard, give a remedy that gives
entitlement to the highest value user.
o Boomer is the highest value user
o But the people and their homes are worth something

Plaintiff Defendant

Property Rule Injunction No nuisance

Absolute right in P to stop the activity. D can go on doing what they are doing
(Wiggins)
Liability Rule Damages Purchased injunction
Ct sets a price for D to continue doing what they are If D has been there longer and P showed up – they can
doing – high value D with very clear substantial pay the price to shut down D activity
interference.
(Boomer)

- Other Conflicting Uses

o Light and Air
 General: Formal Realizability or Administrability (Rules v. Standards)
 Rules: provide predictability and control arbitrary judicial discretion, but can be over- or under-
inclusive, leading to unfair results under given circumstances
 Standards: (good faith, reasonableness, fairness) better obtain justice in the individual case but
offer less predictability to citizens and guidance for triers of facts
o Judicial Role and Institutional Competence
 What is the property role of courts
 Scalia: judges are good at applying rules but bad at discerning contexts
 Majority Bright-Line Rule:
 There is no legal right to the free flow of light and air – NOT covered by nuisance
 o Where a structure serves a useful and beneficial purpose, it does not give rise to a cause
of cation, either for damages or for an injunction under the maxim sic utero (use your
property in such a way that does not injure others), even though it causes injury to
another by cutting off the light and air and interfering with the view, regardless of the
fact that the structure may have been erected partly for spite.
 Fontainebleau (no right to light)
o Facts: Fontaine is going to build up on their resort which will block the air and light on
the neighboring resort
o Rule: Courts rule that a landowner must use his property to not injure the lawful rights
of others, but free flow of light and air is not a legal right
 True even when the structure was erected “partly for spite”
 Minority Standard:
 Where a D is blocking of sunlight unreasonably interferes with the plaintiff’s use and enjoyment
of his land, the court CAN intervene
o Still making considerations under pluralist themes (autonomy, aesthetics, pro-
development)
 Prah (maybe right to light)
o Facts: D built a building that blocked P ‘s solar panels even though D complied with
zoning laws
o Rule: Reasonable use doctrine of nuisance law will govern questions of access to
sunlight
 Times have changed – loss of sunlight was previously an annoyance but now it
is a source of energy
 No one’s land ownership rights are absolute – neighbors'’ use must not
unreasonably impair the uses or enjoyment of the other
o Note: Shifting a law in the judiciary
 Legislatures might act for bad reasons
 Dominant interest groups provide funding
 Minority interests ignored
 Innovation may be blocked in legislature because the minority won’t agree
which hinders society
 Economic future does not look like economic past
 Policy Arguments AGAINST Right to Sunlight (Rule)
 Rights of landowners to use their property as they wish, as long as they did not cause physical
damage to their neighbor is carefully guarded by common law.
 Sunlight was valued only for aesthetic enjoyment.
 Society had a significant interest in not restricting or impeding land development.
 Policy Arguments For Right to Sunlight (Standard)
 Society has increasingly regulated the use of land by the owner to protect general welfare.
 Access to sunlight has taken on new significance in recent years (renewable energy + aesthetic
value)
 Policy of favoring unhindered private development in an expanding economy is no longer as
harmful to society.
o Water Rights
 Dealing with getting rid of surface water on your land
 3 options as walked through in Armstrong (Brennan)
1) Common Enemy Rule: A possessor of land has unlimited and unrestricted legal privilege to deal with
surface water on his land as he pleases
  Protected: owner’s absolute right to free use
 Encourages: people to develop property because they know they aren’t liable for throwing water
off it.
 Rule: clear, certain, and rational decisions can be made based off it
2) Civil Law Rule (Natural Flow Rule): A person who interferes with the natural flow of surface waters so
as to cause an invasion of another’s interests in the use and enjoyment of his land Is subject to liability to
the other.
 Protected: neighbor’s absolute right to security
 Encourages: people to develop property because they know their neighbors' won’t flood it and
ruin it later
 Rule: clear, certain, and rational decisions can be based off it
3) Reasonable Use Rule (Reasonableness Doctrine): Each possessor is legally privileged to make a
reasonable use of his land, even though the flow of surface waters is altered and causes some harm to
others but incurs liability when his harmful interference is unreasonable.
 Same generic principle that nuisance law directly applies
o You have a right to use your land but not in such a way that it imposes a substantial and
unreasonable interference with others’ use
 Protected: rights are relative (relative rights NOT absolute) to something in particular =
economic value of activity at issue – depends on effect your action has on someone else
 Reasonableness determined by these factors:
o Amount of harm caused
o The foreseeability of the harm which results
o The purpose or motive with which the possessor acted
o Other relevant circumstances
 Can only one party avoid the problem in an inexpensive way?
 Did any party make a good faith effort to deal with the issue?
 Standard: allows for flexibility but less certain and more litigation
 Cases
 Armstrong v. Francis Corp.
o Facts: Corp. owned a large tract of land and used a pipe to drain water into a stream but
the stream bank eroded and flowed onto the P land
o The Court applies the Reasonable-use theory
 With all the qualifiers and limitations that come out of the Common-enemy rule
and the Civil-law rule they become reasonableness standards anyway

When land uses are interdependent: 3 Rights Argument: Free Action v. Security Utility Emphasis (Social Benefit/Economic)
Free Action/Use Security Rule Theories
Common Enemy Free Action Rule (pro-development) - Social wealth requires initiative
- Possessors of land are absolutely - Tells surface owner with water that - People will not increase value if they are not
100% 0% privileged to remove surface law protects their action to remove protected in basics of free action
waters regardless of harm to the water (autonomy) - Must be free of liability
others
Civil Law Security Rule (development limiting) - People won’t develop property
- Possessor of land who interferes - Prioritizes a right to be free of - Social wealth requires security because it could be
with the natural flow of surface disturbance and should be free from ruined by the neighbor
water is strictly liable for intrusion - Not all new measures are value enhancing – might
0% 100% resulting harm harm the neighbor more than you are benefitted.
Reasonableness Contextual Balancing Test - Both of the above rights are true but their relative
weight varies with context

~50% ~50%
o Support Rights
 Lateral Support
 A landowner is entitled by natural law to lateral support in the adjacent land for his soil – strict
liability
o Strict liability is limited to land in its natural state
 Modern rule: the landowner may recover for loss of lateral support on strict
liability theory if your land would have naturally supported the structure
 How do you know natural condition of the land?
 Whatever has been there for a while has strong argument that it is in
line with natural condition of the land (security rule)
o Negligence for land not in its natural state
 There is no obligation to support the added weight of buildings or other
structures that land cannot naturally support
 If as a result of the additional weight of a building or other structure, so
much strain is placed upon existing natural or artificial lateral support
that the support will no longer hold, then in the absence of negligence,
there is no liability
 If weight of P’s house placed so much pressure on the soil that the
house itself caused the subsidence, and the land would not have
subsided without the weight of the house, then the P cannot recover.
 While an adjoining landowner has no obligation to support the buildings and
other structures on his neighbor’s land, nonetheless, if artificial structures are
taken away- the neighbor must withdraw them in non-negligent way.
 What is negligent  malicious, failure to let a neighbor know, digging
a hole and leaving it for a year (timeliness)
 Noone v. Price (Security Rule: liability protection to first to build)
o Facts: Noones bought a house that was built on the side of a hill, Price lived below,
before Noones’ house was built, a concrete retaining wall was built along the Price’s
property; Wall was deteriorating and Noone’s house began slipping
o General Rule:
 The first to build is generally protected by strict liability because it is presumed
that their structure is in line with the natural condition of the land
 Issue arises with retaining walls/substitute support  rule of lateral
support is personal to you and runs to the land (future owners inherit
responsibility)
o Duty to maintain the retaining wall runs with the land, but only
to the degree that compensates for any natural support removed
– no need to provide more support than would naturally exist
o If land on one piece of property is able to support the structure
only by virtue of additional stability created by artificial
support, then the neighbor who removes that artificial support
is liable only for the consequences of NEGLIGENT removal.
 And the new neighbor who builds and adds weight to the natural land must
prove negligence in order to recover for a lapse in lateral support
 P must show that D’s failure to maintain the wall would inevitably have
led to a soil collapse AND (2) the couple’s house didn’t cause the soil
collapse
 o Policy
 protects autonomy, initiative, and security of the first builder – protects from
liability for added structures
 Incentivizes people who come next to be cautious and thoughtful
 Subjacent Support
 Free Action Rule: No absolute right to subjacent support
 Friendswood Development Co. v. Smith-Southwest Industries
o Facts: D pumped subterranean waters from its property despite engineering reports
showing it would subsidence the nearby land; P’s land sank
o Rule: For all FUTURE cases after this one, negligent removal of water that harms the
land level of neighbors' can be held liable.
o Is this a groundwater case or a land support case?
 Majority: groundwater
 Groundwater rule is a free action rule – no liability water removal
UNLESS done negligently (added by this case)
 Groundwater should be free from liability because you cannot observe
the activity, water is not useful until it is obtained, no economic use
without extraction
 Purdy note: consider Rule of Capture but Rule of Capture does not
account for harm done to neighboring land
 Dissent: land support case
 Land support is a security rule- guarantees against land slippage and
undercut support
 Just because we are dealing with groundwater does not mean
groundwater rights only apply
 Integrity of surface land is foundational
Strict Liability (Security) Reasonableness Free Use Rules (Absolute Rights)
Certainty; protects what has already been Flexibility: good to apply to individual facts of cases; courts weigh Certainty: protects the right to build; freedom of action;
built; time, expectations, security, stability factors; could favor either right to innovate and improve land
Surface Water  Natural flow doctrine Nuisance Surface Water  Common Enemy Rule
Land  lateral support Surface Water  Reasonable Use Doctrine Light and Air
Land  lateral support beyond natural state (negligence) Groundwater  free use

- Adverse Possession
o Basics
 A legal process through which a non-owner who uses the property for enough years becomes the owner of
the property and defeats all rights of the true, title owner. Must satisfy EVERY prong of the conjunctive test
 overarching question: Did the adverse possessor behave like an owner?
 Can be a quiet title OR a defense to trespass and ejectment claims
 Rationale
 Purdy
o Arose due to issues with shifting property lines based on custom – elevates the
expectation of the people on the ground over the records
o True owner must be doing something that amounts to constructive abandonment or
sustained neglect.
 Cooter and Ulen
o Prevents valuable resources from being left idle for long periods
 Holmes
 o The deprivation of this property on the adverse possessor would be wrenching – a
person loses attachment to property that he regards as no longer his own so the
restoration would only give him partial pleasure
Merrill
o Reliance interests that the possessor may have developed through longstanding
possession of the property
 Adverse Possession v. Nuisance
 Nuisance: took a messy set of facts over a number of years and break them out into a series of
different categorical lists
o Each element is a different category.
o All things considered approach.
 AP: not a cost-benefit analysis but an on/off switch – determined by ALL elements being met
o Each element is a different lens through which to view the same set of facts
o NOT an all things considered approach – merely considers the same question in
different ways: Did the adverse possessor act like an owner such that the true owner
should have known and done something about it?
o Elements
 Nonpermissive/Hostile
 Without permission
 If all the elements of adverse possession are met, the adverse prong can be presumed unless the
true owner produces evidence to show that the use was permissive
 Continuous
 Degree of frequency that fits practice of owners in the area
 Arguments by title holder to defeat this element
o Too light on the ground/little impact
o Knowing this is through average land owner in the area  not enough presence
 Exclusive
 Act as someone whose permission is needed
 Not necessarily excluding all others – but acting like the person that has the sole power to
exclude
 Arguments by title holder to defeat this element
o Asking someone else for permission
o Using the land EXACTLY as others do
 Nome: Southern Portion
o Permission shared with the true owner
 Open and Notorious
 Contextual: what would an ordinary landowner do?
o Must be sufficiently visible and obvious to put the owner on notice
 Use must be visible enough to give notice to a reasonable owner
o Fence or wall is often sufficient (Brown v. Gobble)
o Others include building a structure, clearing the land, laying down a driveway, storage,
garbage removal, and planting crops.
 Arguments by title holder to defeat this element
o Only coming to the land at dark and leaving before sunrise
o Secretive activity
 Actual Possession
 Must physically occupy the land and not just look at it
 o “Ordinary use to which the land is capable and such as an owner would make it.”
(Nome)
 For the statutory period
 Typically 10 years but varies depending on state
 Adverse possessors may tack together succeeding periods of possession by different non-
owners, only if they are in privity with one another (original adverse possessor purported to
transfer title of the property to the successor)
o Brown v. Gobble (tacking doctrine)
 Facts: Tract of land was enclosed (in 1937 by prior owners) and appeared to be part of D property; D was
told their land included the tract; P knew that the property was theirs when purchased adjoining land but
never said anything until 5 years later in 1990s
 Rule: Successive adverse possessors’ tenure can be “tacked” together to satisfy the statutory period.
o Nome 2000 v. Fagerstrom (elements of adverse possession)
 Facts: Fagerstrom started using land as a kid, 15 years later Charles got married and staked out an area on the
north part of the land – parked a camper and stayed on the weekends, built an outhouse, a fish rack, and a
reindeer shelter; on the land most weekends and would use the south area for picnics, berry gathering, and to
catch fish; Nome sued for summary ejectment
 Rule: Adverse Possession requires: adverse (nonpermissive), continuous, exclusive, open and notorious use
for the statutory period (Note: leaves out actual but it makes no difference)
 Holding: The court ruled that even though the Fagerstroms were only on the land a few weekends each year
(continuous element in question), they used the land similar to that of a reasonable owner on similar property
(seasonal use)
o Alternative Branch: Color of Title
 When a written conveyance appears to pass title but does not do so, either from want of title in the person
making it, or the defective mode of conveyance (an inaccurately phrased future estate).
 What makes the title void or defective?
o The person who conveys the land does not actually own it
Adverse Possession
o Defective mode of conveyance
o The document lacks a signature
No color of title Color of title
o Contains mistaken or ambiguous descriptions of the land
Nonpermissive o Procured through a faulty procedure
/Hostile
 How does the doctrine shift?
Continuous
o Substitutes for nonpermissive/hostile
o Evidentiary standard for other elements (exclusivity, continuity, open & notorious) are
Exclusive lower/looser
o Sometimes courts may drop the statutory period
Open and Notorious  Romero v. Garcia (color of title)
o Facts: adverse possessor (p) was the intended recipient of the property in a paper trail
Actual
transaction that filed because the wife’s signature was missing
o Rule: the deed and the extrinsic evidence (actions of the properties: referencing fence
line, pipe, and pile of rocks) need only be sufficient to determine the location of the
boundaries of the land conveyed in the defective title
 Note: an indefinite and uncertain description may be clarified by subsequent
acts of the parties”

Attempts to Avoid Conflicts Between Neighbors

- Servitude
o Basics
 Two types
 Easements (affirmative servitude)  contracts between tracts of land: rights of access
 Covenants (negative servitude)  contracts that prevent or restrict certain actions on a person’s
piece of land
 Contract between neighbors' jointly interested in the burdened land
 Contracting owners know their own interests better than anyone
 Must be a mutual agreement
 Created to avoid nuisance
 Homes (contract) v. Condos (social contract)
 Agree to be governed by one another in exchange for certainty, order, safety, and structure
 Covenant gets expanded in scale and force of normative justification in context of condos (you
are agreeing to have less free choice because of where you are living)
 Agree to be governed by one another
 “Little Democratic sub-communities”
o Easements
 Basics
 Easement is a nonpossessory right to use another’s land for a limited purpose or profit – access
rights to another piece of land that can be created at any time
 Involved Estates
o Burdened/servient estate: land subject to the burden of a servitude
 All easements (appurtenant and in gross) are attached to a servient estate
o Benefited/dominant estate: land with the right to benefit and automatically passes to
the owners of a particular parcel; land held by the beneficiary
 There is no dominant estate for an in gross easement
 Categories of Easements
1. Appurtenant easement: benefit is held by and runs with the dominant land
 Ex: “heirs and assigns forever”
 Divisible
 But once multiplied, it cannot be an unreasonable imposition.
 You can write this out: “this must stay limited to the effective scope of
one family.”
 Transferable when the land is sold.
2. In gross: benefit is held by an individual/entity – doesn’t run with dominant because
there isn’t one
 General
 Technically runs with the servient land
 Protects grantor from strangers using it
 Stays with grantee for life, even if grantors sell
 2 kinds
 Personal (friendship; recreational activities)  not transferable
 Commercial (economic activity; profit)  transferable
o Exclusive  Apportionable (can deal in new party)
o Nonexclusive  Non-apportionable
  Easements in gross run with the burdened land, which is how they differ from
mere license (ex: your friend wants you to be able to swim in their pond even
after they die or move)
Express Easements
 Creation of Express Easements
 Can be created at any point in time (during sale, or deed conveying easement by itself)
 Key Question: Does it run with the land? (Must have ALL elements)
o (1) be in writing (Statute of Frauds)
 The statute of frauds requires. Easements to be in writing, signed by the
grantor, and sufficiently describe the easement and grantee
 Failure to do so creates a revocable license rather than an easement
o (2) There must be notice to the servient estate holder at time of purchase
 Actual notice  subjective awareness
 Inquiry notice  visible signs of use by non-owners so as to compel a
reasonable buyer to do further investigation about an easement’s existence
 Constructive/Record Notice  if deed conveying easement is recorded in the
proper registry of deeds in the proper place than assume notice
o (3) Original grantor must have intended the easement to run with the land
 All easements run with the servient estate.
 But to run with the appurtenant estate intent must be clearly stated or inferred
from circumstances
 Presumption for an appurtenant easement (Green v. Lupo)
 Compare with leases and licenses
 Leases: are possessory; easements are nonpossessory
 Licenses: permissive use to come onto land, for limited time and revocable by grantor.
Permission is attached to a person and is an exercise
o Was the right supposed to be temporary  license
o Was the right supposed to be permanent  easement
 Appurtenant Interpretative rules: (Encourage Specificity)
1. A grant will be presumed to be appurtenant unless there is clear evidence it was intended to
be in gross. (Greene)
o Expansive property right regardless of intent – construes grant as generous
 Why?
 Limits the number of persons with easements over the land to the
neighboring parcels
 Easements in gross create more uncertainty about land use rights than
appurtenant easements – easy to check if neighbors' have appurtenant
easement but random people can have in gross easement
o Green v. Lupo
 Facts: Greens sold part of their tract to the Lupos who requested a deed release
for part of the property and in exchange Greens got an easement cross the
Lupo’s tract for entry and exit. But the Greens created a mobile home park and
occupants used the easement as a runway for their motorcycles
 Purdy note: to make in gross  “For ingress and egress for the
Greens” OR “for ingress and egress for a single family”
 Rule: If the contract does not specifically say the easement is in gross then it is
presumed to be appurtenant unless weighty countervailing parol evidence says
otherwise.
2. Divisibility: Appurtenant easements can be multiplied by division or sale – benefits move to
each portion of the dominant parcel upon its subdivision (Greene)(Cox)
o Unless grant says otherwise
o Rationale from Green
 Pro-development and marketability considerations
 Easier to transfer and use for all purposes
 Owners with rights of access can share and develop
 But another conflict between security (Lupos) and free action (Greens)
 Note: opposite rationale from Wood v. Freemont County
 Letting it be a fee simple in order to NOT burden the land
o Cox v. Glenbrook: the easement could be divided because it did not say it was restricted
to a “single family possession.”
3. Limit on the scope to modify: divisibility is limited by a general principle of reasonableness.
o All-things-considered nuisance-style balancing between security interest (extent of
burden on) servient estate and free use interest of the dominant estate.
o Cox v. Glenbrook Co.
 Facts: unpaved single-car road (with an easement to be used by Quill’s
property) between a resort and a property formerly owned by Quill who died
and was sold to the D; D wanted to subdivide Quill’s property into 40-60
parcels and repave and expand the road.
 Rule: The D get to use the scope of the easement within the scope of what it
allows so long as it does not create an unreasonable burden
 Leveling and maintenance: within the scope
 Widening the road: outside the scope
o Purdy: the reasonableness principle prevents a single user of
the easement from blowing up the grant of access to 60 users
unilaterally.
 Scope  To determine whether the easement owner is going beyond the scope
of activities contemplated by the grantor look to
 Whether the use is of the kind contemplated by the grantor
o Should an easement be interpreted broadly or narrowly?
- What result is more likely to effectuate the intent of the
parties? What result is more likely to promote the
alienability of property?
- Can consider changes over time to take advantage of
developments in technology
 Whether the use would pose an unreasonable burden on servient estate
not contemplated by the grantor
o Possible to be engaged in an acceptable kind of activity, but the
degree or intensity creates unreasonable burden
o Balancing test when ambiguous: interest of the easement owner
in freedom to develop his property against the interests of the
servient estate owner in security from having his property more
burdened than he should have anticipated.
 Whether easement can be subdivided
o Can be so long as it is not forbidden
 o Purdy note: in the end, the result will be that some number of
houses that Cox can develop up to and let use the road (like
Wiggins)
 In gross interpretative rule
 In gross easement + exclusivity = apportionable (deal in a 3rd party)
o Henley v. Continental Cablevision of St. Louis County, Inc.
 Facts: predecessors to P granted access to construct and maintain electric,
telephone, and telegraphic services on the rear five feet of lots in a subdivision;
easement given to Southwestern and Union  60 years later: companies
extended a license to Continental to erect cables for TV
 Rule: Easements in gross (commercial) that are exclusive (homeowner has no
interest in participating) can be apportioned by the easement holder to license
or authorize third persons to use the easement for purposes not inconsistent
with the principal use granted so long as it does not create an
undue/unreasonable burden.
 Rationale
 Coase Theorem: scope in some ways is being expanded but upon
balancing the burden and benefits  the burden is small
o Injunction: tons of owners, impossible to communicate with
them all, and large transaction costs
 Limitation on scope
o like appurtenant easements above: owners of the easement cannot cause undue burden
on the servient estate
Implied Easements
 Creation of Implied Easements
 Rationale
o Pro-Access and Pro-Use
 If the title owner doesn’t give permission but someone uses it over time 
prescriptive easement
 If title owner does give permission and the licensee builds up reliance, Court
may take away the power to exclude  easement by estoppel
 So, whenever there is a course of interaction that creates expectation of access,
court is more likely to find a way to preserve the access right then eliminate it
(and thereby eliminate/reduce value)
 4 types
o Prescriptive easement (adverse possession for easements)
o Easement by estoppel (reasonable reliance and substantial injustice)
o Easement implied from prior use (part of land used for benefit of another, then land is
divided)
o Easements by necessity (estate is severed and one part becomes landlocked)
 Prescriptive Easements (adverse possession for easements)
o Basics
 Elements
 (1) Adverse/Nonpermissive (presumed)
o can only be overcome by showing permission was actually
given BUT THEN you run the risk of easement by estoppel
 (2) Continuous
o Tacking can apply
  (3) Open and Notorious
o Must give true owner the chance to observe and object
 (4) For the statutory period
 Note: NO exclusivity  unnecessary
 Rationale: similar to adverse possession: you acted like you had an easement
without the owner’s permission and if you do so for long enough, you gain the
right to access
o Community Feed Store, Inc. v. Northeastern
 Facts: P operates a wholesale animal feed store and D owns adjacent lot but
they both own part of gravel lot; P uses the entire gravel lot to turn around
semi-trucks; D bought land in 1956 but didn’t know they owned part of gravel
lot until 1984 when they put up a barrier
 Open and Notorious: used by customers and suppliers
 Continuous for statutory period: uninterrupted for 60 years by
“tacking” through chain of title
 Adverse/Nonpermissive: presumption of adversity
o Why?
- Without it, the adverse possessor would not have the
ability to bring the claim
- Only way to make prescriptive easement widely
available is by this presumption
o Does this presumption discourage sharing?
- All the true owner has to do is be explicit about
permission or non-permission to be protected
- Only makes true owner vulnerable if they allow severe
ambiguity for a long time.
 Easements by Estoppel
o General
 Elements (from Lobato v. Taylor)
 (1) Owner permitted use
 (2) and could reasonably foresee user would substantially change
position in reliance on the permission
o Risk: no permission  prescriptive easement but permission
 easement by estoppel
 (3) User substantially changed position in reasonable reliance
 (4) and injustice can be avoided only by the establishment of an
easement
o impact/weight of the withdraw
o dimension of time – how long they have relied
 Rationale
 More about honoring expectations of parties relying on permission and
less about holding permission-owner to their word
 Flexibility: prior dealings that create unfairness if they are ripped away
 Found in 3 situations
 Noncompliance with the statute of frauds
o Similar to color of title: intent to create an easement but failed
to comply with some aspect of formalities
  Reasonable reliance on continuation of consent
o Use it for a long time with reason to believe it will continue
 Fraud or misrepresentation
o Some courts hold that letting a user substantially invest in
reliance is tantamount to fraud
o Lobato v. Taylor (Easement by Estoppel)
 Facts: After Mexican-American War, Beaubien owned a huge tract of land and
recruits farm families to settle; used a settlement system where non-cultivated
land is available for common use (grazing, recreation, source of timber,
firewood, fish, and game); but a century later a new guy tries to exclude the
common people
 Said: “all inhabitants will have enjoyment of benefits of pastures,
water, firewood, and timber” but this document did not comply with
SoF formalities.
 Holding: Easement by Estoppel is present
 (1) Original owner permitted use – notice was given to this owner
 (2) Goal in permitting use was for them to change position and move to
the land to settle
 (3) Landowners substantially changed their position in reliance by
moving to the land and establishing farms
 (4) Rights exercised for over 100 years and necessary for their very
existence.
 Note: There could also be arguments for prescriptive easement and prior use
 Dissent: for some reason, the court limited the scope of rights to reasonable use
of pasture, firewood, and timber – excludes hunting, fishing, and recreation
 Easements implied by prior use
o General
 Elements
 When a previously united parcel is
o (1) divided
o (2) prior to severance the estate was interdependent (one
part of the estate used the other part of the estate for a benefit)
o (3) the use was continuous and not merely temporary, and
o (4) Apparent or obvious
o (5) Reasonably necessary to the enjoyment of the estate
- Where prior use and physical adaptation of premises to
use is apparent, there is a more flexible necessity
requirement – “reasonable necessity” (Granite) –
necessary ≠ necessity
- Lose a major benefit by not being able to use the
property.
o (6) so long as no contrary intention is clearly expressed.
- Intention to ALLOW the use is inferred from proof of
D’s prior use
- So must be evidence to the contrary that they agreed
this would be PROHIBITED
 Rationale
 Easements by implication
  Arises as an inference of the intention of the parties to a conveyance of
land
 Arguments for prior use easement
o Pro-economic use: the court does not want to destroy value that
arises from integrated use of the land
- Significant deviation from usual power to exclude
(Jacque)
o Pro-access: like express easements, those who want to restrict
access need to state it very clearly.
o Fairness/Efficiency argument: unfair to hold them to extent of
their transactions
 Arguments against prior use easement
o People who are selling are in the position of power and
knowledge
o Owners know you transfer all the rights unless explicitly stated
o Doctrine protects inattentive parties from surprises
o Fairness argument is weak because it allows the seller to
implicitly retain access right without having to negotiate it.
o Granite Properties Limited Partnership v. Manns
 Facts: P owned all the property upon which they used two driveways: one
provides entrance and exit from an apt complex and the other provides entry
and exit from the shopping center; sold land to D on which the driveways were
located
 Holding: Easement implied by Prior Use
 (1): satisfied on sale
 (2): used to turn around semis and deliveries
 (3) one was gravel and one was paved – notice that it was being used
 (4) needed for continued operations
 (5) no intention for this use to end when selling
 Easement by Necessity
o Rule
 If a division of land created a landlocked property, the owner of the landlocked
property has a dormant action for easement against the parcel which created the
landlock (Finn)
 Party eligible for necessity must be UNABLE to get off the property
without using the road
o Elements
 (1) Dominant and servient estates were formerly one parcel; and
 (2) at the time of severance, the dominant estate became landlocked
 Note: This does NOT mean that any landlocked owner has access to a
public road always – it just means the burden falls to grantors who are
responsible for landlock they created
o Hypo: if public road moves after the land is severed, there is no
easement by necessity because the land became landlocked
after severance (missing element 2)
o Obligations on competing sides
 Landlocked parcel
  A splits  and gives landlock to B  divides into B, C, and D  B, C,
and D all have an easement by necessity to get out of the land through
A’s access road
 Dominant parcel
 Rewind: If A  B but then A transfers portion of their parcel with the
road access to E
o B’s suit for easement by necessity would be against E because
when A transferred the land to E it transferred access and
susceptibility to cases.
o Finn v. Williams
 Facts: Williams owned a large parcel and sold 40 acres to Bacon; Bacon sold to
Finn and Zilphia inherited the remaining acres from Williams; Zilphia would
not let Finn use her path and the two other third-party roads were closed off to
him after a while
 Rule: If a division of land creates landlocked property, the owner of the
landlocked property has a dormant action for easement against the parcel which
created the landlock.
 Note: the two third-party roads being closed off were necessary to
bring the necessity claim because the party must be UNABLE to get off
the property without using the road.
Easements Covenants
Affirmative Servitude Negative Servitude
- Creation: can be created at anytime - Cannot be created at anytime
- Purpose: right to access - Purpose: right to restrict another’s land use

o Covenants
 Basics
 Negative servitude which creates restrictions on use of servient estate enforceable by one who
does not own the land
o Usually limited to
 Rights to lateral support of one’s building
 Rights to free flow of light and air
 Rights to water from an artificial stream
 Appurtenant v. In Gross
o Almost all covenants are appurtenant
 The covenant benefits the current owner, not the prior possessor
o In gross covenant is not normal and is an exception
 If held by the government or a nonprofit (ex: conservation easement)
 In Sum: A covenant must be
o (1) writing
o (2) intent to run with the land
o (3) Vertical and Horizontal Privity  Real (Damages or Injunction)
 OR
o (3) Notice  Equitable Servitude (Injunction)
o (4) Touch and Concern
 2 kinds (Differ on Element 3: privity v. notice)
 Real Covenants (Damages or Injunction  you pick)
o (1) In writing (SoF)
  Note: exception  implied covenant
o (2) Intent to run with the land
 Presumed if appurtenant
o (3) Privity (purpose is notice)
 Horizontal: party created covenant was grantor to grantee (for a moment they
both have simultaneous ownership)
 Vertical: right kind of subsequent estate (sale, gift, foreclosure but NOT
adverse possession)
o (4) Touch and concern the land
 Equitable Servitude (injunctive Relief)
o (1) In writing (SoF)
o (2) Intent to run with the land
o (3) Actual, inquiry, or constructive notice to owner of the servient land
 Actual: told about it and made aware
 Inquiry: condition of the premise would make a reasonable purchaser inquire
about a covenant
 Purdy Note: You should have asked based on appearance – if you
didn’t then knowledge is imputed (ostrich effect)
 Constructive: if the restriction was recorded within the registry of deeds and
you could have searched then you should have
o (4) Touch and Concern
 Element (4): Touch and Concern
o Focus on the burdens that involve the use of the land itself, not just the personal
conduct and activity of the owner (absolute threshold)
 Burden perspective: obligation touches and concerns the burdened estate
when it affects the use and enjoyment of that land
 Benefit perspective: obligation touches and concerns dominant estate if it
improves enjoyment of that land or increases its market value
o Purpose: avoid imposing arbitrary and pointless burden limit on land use
 Tries to avoid the imposition of arbitrary, idiosyncratic and pointless
burdensome limits on the use and enjoyment of land by making it more
likely that agreements that become part of the property rights will be ones
that increase the joint value of neighboring pieces of property by limiting
the use of one in familiar/unsurprising ways.
 Traditional refusal to enforce covenants that are held in gross is an
application of the touch and concern test
o Examples
 “No dogs allowed in a development” (likely okay)
 Burden: no dogs
 Benefit: no barking, no waste
 “No cats” (close call as the examples move to indoor uses, it gets more
and more attenuated)
 Burden: no cats
 Benefit: ??
 Neponsit  normally obligations to pay fees are contract law and not T&C
 But here it is T&C
o Money is kept for community use, to coordinate collective
upkeep, and required by all
  Requirement that owners of a historic house keep a portrait of owners in
entrance hall
 Burden: involves the use of the house
 Benefit: hard to see how the benefit touches and concerns land of
neighbors' who might be in a position to enforce it – need a link to
value and enjoyment of the neighboring properties
 Element (3): Privity
o Neponsit Owners Assoc. v. Emigrant Bank (Flexibility for Vertical Privity)
 Facts: Neponsit sold a piece of property to the Dyers but they foreclosed on
Neponsit Dyers (foreclosure)
the house and Emigrant bank took ownership; Neponsit assigned its rights
to the Neponsit Property Owners’ Assoc.; they are trying to enforce the
NPOA Emigrant right against Emigrant
 Issue: NPOA is not the owner of the dominant land but merely trying to act
as a representative to enforce the covenant
 Rule: Entities that act as agents of homeowners (including homeowners’
associations) are treated as being in vertical privity, even though it has no
title ownership to any dominant property because they continue to enforce
the benefit/purpose of the covenant
 Rationale
 General Rule: In gross covenant (enforcer is not owner of dominant
parcel) is unenforceable because it takes the covenant out of
context
o Rationale: an in gross covenant, the party trying to enforce
the covenant has no benefit
 But here: Association is a representative for all the homeowners
NOT an in gross enforcer
o Enforcing the general rule would make the policy less
effective
o Association serves a purpose because once all the land is
sold off – Neponsit is the in gross enforcer
 Common issue in developments
o Neponsit owns the whole parcel
- NA
- NB (B can enforce against A)
- NC (C can enforce against A and B) etc
- NZ technically no one can enforce against it
 Implied reciprocal negative servitude  Residential Subdivisions, Condos, & Developments
 Basics:
o Definition: implies that when an owner sells a number of parcels with evidence of
intent to create a common plan of development then it is implied that
 (1) Covenants made by the seller benefit all parcels within the plan
 Fixes the privity issue seen in the above image
 (2) All parcels within the plan are bound by the covenants
 Held up by 2 pillars of rationale
o (1) Equitable  It would be unfair to permit developer to leave a covenant out given
the reliance/expectation of buyers? (estoppel)
 Intent implied by the courts construction of the development
  Where you purchase a covenanted property in a uniform schemed development
-- you have an interest and expected others to be similarly covenanted
o (2) Formal Terms  covenant is mirrored (reciprocal)
 Term-by-Term  most formalistic
 Implied: because it is not in the language of the transfer
 Reciprocal: what you burden on another, you burden on yourself
o From this assumption – everyone who later purchases from O
is successor to enforce or be enforced because they step into
the developer’s shoes
 Negative: limit on the land
 Remaining Issues
o What is sufficient evidence of intent to create a common plan?
 Presence in all or most deeds to property in the area
 Sanborn v. McLean (difficult to defeat implied reciprocal negative easement unless deed
explicitly states so – presumption of fairness via buyer’s reliance )
o Facts: D owned land on which her and her husband wanted to
build a gas station in a “high grade neighborhood;” all the lots
on that potion of the road had once been owned by single
owner who imposed covenant on 53 of 91 lots; D had no
restrictions on her chain of title.
o Rule: the court infers an intent to create a common plan when a
majority of the lots are restricted
o Purdy Note: maybe it wasn’t the developer’s original intent,
but it should have been – buyers expected everyone would be
restricted and must consider fairness – the court assumes that
parties (intent) didn’t want to destroy joint value unless they
were explicit about it
 A recorded plat (map) showing the restrictions
 Presence of restrictions in the last deed
 Observance by owners of similar land and conformity to the written restrictions
 Recording of a declaration stating that the covenants are intended to be
mutually enforceable
o What land comes within the plan?
 Evans v. Pollock (selective implied reciprocal negative servitude)
 Facts: The Hornsbys and McCormicks platted a subdivision around a
lake; the plat doesn’t contain land-use restrictions. All blocks are
lakefront except Block F. All deeds contain restrictive covenants: (1)
prohibit business or commercial use; (2) residential use with 1 dwelling
per lot; (3) ¾ of lakefront property owners can vote to change restricts;
Hornsbys died and devisees wanted to sell Block F and the peninsula to
build marina, private club, and condos
 Rule: The general plan or scheme may be that the restrictions only
apply to certain well-defined similarly situated lots for the doctrine of
implied reciprocal negative easements to apply as to such lots.
 Question: Did the developer create enough expectation that purchaser
relied on the common scheme  those who can chose the rule are
those who live under them (lakefront)
o What about unrestricted lots? (NOTE: still need notice)
  Does not apply to substantially different lots (Evans)
 Most courts hold that buyers of unrestricted lots are on constructive notice of
covenants in other deeds in the vicinity sold by the same grantor – some say
buyers are on inquiry notice if there is enough uniformity in the development
(Sanborn)
 Sanborn Rule: When you purchase in a common plan you have
constructive notice of restrictions in the deeds of neighboring
properties of that uniform residential character AND at a minimum you
have inquiry notice
 But there are limitations when the rationale is absent: (1) formal and (2)
equitable
 Riley v. Bear Creek Planning Committee
o Facts: Riley was A, Riley purchased the first lot upon the
representation of the seller that the properties would be subject
to recorded restrictions but those were not recorded until after
purchase and never added to deed; lots bought after were
subject to them

Substantive Limits on Covenants

- General
o Exceptions to enforcement include (1) reasonableness and public policy violations and (2) restraints on
alienation
o Hierarchy of power to produce restrictive covenants
 Condo associations (highest)
 Condo rules
 Ordinary covenants (most vulnerable)
o Hierarchy of uses
 Power of alienation (highest – cannot give up outright) (Serio)
 Commercial uses (courts are willing to see significant interest that pushes against covenant)
 Personal uses (bottom of the court’s hierarchy, even when it is religious worship)
o Modifying or terminating a covenant
 Changed Conditions
Case Holding Source Standard Topic
Nahrstedt Upheld Declaration “Reasonableness” Cats
O’Buck Upheld Rule Reasonableness TV
Neuman Upheld Rule Reasonableness Religious Services
Serio Unenforceable Covenant Common Law $: Alienation
Woodside Upheld Rule – Dec. Amend. $: Alienation: Rental
El Di Unenforceable Covenant Reasonableness – Changed Conditions $: Liquor
Blakeley Upheld for damages Covenant MA Statute – Changed Conditions $ hotel/air and light

- Condos
o General
 Condo regulations must be reasonable and in line with public policy and core values  this means
nothing (anything goes)
 Not typical covenants under common law – legislation within the condo community creates the
restrictions so don’t need CL covenants
 Condos are created by state statute and then legislate within their own little democratic unit
 Condo Assoc. v. Actual Gov
  Condo is not limited by constitution – can limit public gatherings
 Condo Agreement v. Regular Contract
 Condo Agreement takes a regular contract and turns it into a social contract: you agree to be
governed by one another
o “Little democratic sub-communities” (Hidden Harbor)
o Cases
 Nahrstedt v. Lakeside Village Condo Assoc. (presumed validity) (rule in declaration when purchased)
 Facts: Nahrstedt bought a condo and signed a declaration that contained a restriction prohibiting
cats and dogs – association discovered that she had 3 indoor cats and told them they needed to
be removed – she argued the restriction is unnecessary because they make no noise and are in
no common areas
 Rule: Restriction in declaration is presumed to be reasonable and will be uniformly enforced
unless the restriction is arbitrary, imposes burdens that substantially outweigh the benefits, or
violate fundamental public policy to the ENTIRE COMMUNITY
o Court says: it is arbitrary to her cats BUT condo restriction means not reasonably
enforced in ANY situation (categorically arbitrary)  extreme deference
 Policy: Presumption of validity promotes stability and predictability by allowing condo buyers
to rely on promises and protecting owners from higher fees for legal defenses
 O’Buck v. Cottonwood (Post-Declaration Rule reasonable)
 O’Bucks bought a unit in a condominium with a pre-wired antenna; antenna was a deal breaker
for the O’Bucks; 3 years after purchasing there was roof leakage w/ 155k of repairs and the
antennas had to be removed; Board of Directors of the Condo Village prohibited the mounting
of antennas on the building before they could be replaced; Board made Multivisions cable
system available as an alternative – the Board paid 14$ for the hook up fee for Multivisions and
the value of the old antenna; but now the O’Bucks can only use 1 of their 4 TVs because they
refuse to pay $10/month for each of the other TVs.
o Purpose: protect the roof and enhance aestheticsj
 Rule: The Condo Association can create binding rules after the Declaration so long as they are
reasonable – balancing test: importance of the rule against the interest infringed upon
 Neuman v. Grandview at Emerald Hill, Inc. (Condo Assoc. ≠ Government ≠ No constitutional rights)
 Grandview adopted a rule that the auditorium at their condo could be used for meetings if at
least 80% of members were Grandview residents; a small group started using it for religious
services but the other neighbors' complained and 70% voted that the auditorium should not be
used for religious services; Board banned religious services in the auditorium
 Rule: Condos are created by statute and governed by a declaration of condominium so
individual rights in the Constitution are not binding and the Board can enact rules so long as
they are reasonable
 Holding: The rule is reasonable in light of the concern of conflict between the owners – Condo
is a “little democratic subsociety”
- Power to Alienate
o Condos: Renting
 Woodside Village Condo Assoc. v. Jahren (Power to Alienate v. Condo Assoc. Power to Regulate)
 Jahren bought condo units in Woodwide as investment property; Board amends Declaration (w/
2/3 approval of owners) in 1997 and limited leasing units to no more than 9 months out of 12
month period AND prohibited owners from leasing their units during the first 12 months of
ownership (Assoc. claimed that non-owner occupiers decreased life and market value of units)
  Rule: Restrictions within a Declaration of Condos should be clothed with a strong presumption
of validity when challenged (and verty strong presumption if they are in Declaration at time of
purchase)
 Rationale: Why does the power to regulate eat the Freedom to Alienation
o Condos are creatures of statue, so look to FL Condo Act and Decl. of Condo and the
statutes are a comprehensive and exhaustive source of law for condos
 Courts are much more hesitant to draw on CL
o Justified by interdependent life of the condo
o Presumption of validity both to Declaration and Amendments
o Government views their role as interpreting statutes and enforcing contracts: do not
bring in additional principals
 Concurrence: The legislature needs to create some limits for condos
o Home: Selling
 Northwest Real Estate Co. v. Serio
 Facts: A couple bought a plot of land in fee simple from D (developer) . Deed stated that the
land could not be rented or sold before 1/1/1932 (4 years after purchase) without D’s consent;
Couple then contracted to sell the lot to the P (Serios) but D declines consent
o D is antisemitic: Usually about stopping people from coming in – not trying to keep
people stuck
 Rule: A covenant that restricts alienation by requiring grantor’s consent, even if only for a
specific time period, is generally invalid because it is incompatible with the freedom of
alienation, which is characteristic of fee-simple title.
o Power to Sell
 Protection of owner to get out
 Able to reap benefits of improvement and land
 Protection of buyers to buy in and guarantees openness
- Modify/Terminate Covenant
o Methods
 Change in Character
 Changed Conditions Doctrine: when changed circumstances have rendered a covenant
immaterial to the dominant estate, no longer enforceable. Courts will either dissolve the
covenant altogether (El Di) or restrict the dominant estate holder to a damages remedy instead
of continuing to enforce (Blakely)
o Formalism (covenant) + Pragmatism (what was this restriction’s intended benefit)
 Cost/Benefit
 Relative hardship doctrine: when harm caused by enforcement (hardship to owner of servient
estate) is greater by a “considerable magnitude” than the benefit to the owner of the dominant
estate, covenant will not be enforced
 Actions
 Acquiescence, abandonment, or unclean hands: When dominant, complaining estate has
tolerated or failed to object to other violations of covenant, which may indicate an intent to
abandon the covenant and servient estate may reasonably rely on this failure to enforce to invest
in her property
o (1) Enforcing/complaining estate has violated the covenant himself (unclean hands)
o (2) Enforcing estate has tolerated previous violations of covenant by owner of servient
estate (acquiescence)
o (3) Enforcing estate has tolerated violations of the covenants by owners of others
restricted parcels in the neighborhood covered by the same covenant (abandonment)
  Estoppel: If dominant estate owner ORALLY represents to owner of servient estate that she
will not enforce the covenant, she may be estopped form enforcing covenant in the future if the
owner of the servient estate changes position in reliance on the oral statement
 Laches: If covenant has been ignored or breached for substantial period of time (but less than
necessary to establish prescriptive rights) Court may find the unexcused delay in enforcing the
covenant prompted investment in reliance on the lack of enforcement and thus was
unconscionable
 Other ways to terminate
o Language in instrument (stated number of years unless renewed)
o Merger: if burdened and benefited estates come under ownership of same person –
covenant will terminate – same with easements
o Release: all parties (both burdened and benefited) can release the covenant when they
all agree in writing to terminate the covenant or release the property from it
o Prescription: open and notorious violation of the covenant without permission for the
statutory period may terminate the covenant
o Changed Conditions Doctrine
 El Di, Inc. v. Town of Bethany Beach
 El Di operates a restaurant in Bethany Beach under a restrictive covenant prohibiting sale of
alcoholic beverages and commercial construction – over time commercial constructions have
been allowed; covenants put into place in the 1900 when Bethany Beach Improvement
Company purchased the land to create a church-affiliated residential community; over time –
the town has become a tourist summer resort and now people brown bag (which is tolerated by
the town) their alcohol to restaurants in Bethany Beach
o El Di got a alcohol license from the State and the town filed to enjoin the sale of alcohol
under the license.
o Conflict between regulatory decision and covenant – if the covenant is valid it can stop
a state regulatory action WITH EXCEPTION below
 Rule: the covenant is not enforceable if changes in the locale have changed so significantly that
enforcing the covenant no longer achieves the benefit for anyone
 Rationale: Vague Doctrine: conditions changed v. conditions unchanged  at what point does
the change become “enough”
o How the benefit is construed matters:
 What was the covenant trying to achieve initially
 Public safety with alcohol v. sale of alcohol
o Public safety: weaker bc allow brown bag
o Sale of alcohol: stronger bc no place sells alcohol in the town
 Cts says: the towns argument is weak because they already allow commercial
purpose – collapses the two benefits of the covenant (not necessarily accurate)
 Blakeley v. Gorin (codified version of Changed Conditions)
 Facts: Some states have enacted statutes that allow covenants to be removed when they are no
longer of “actual and substantial benefit” to those enforcing the restriction; P owns two parcels
of land separated by an alley and want to construct a hotel apartment building on the vacant lot
and connect with the Ritz-Carlton in the other lot w/ a 12-story bridge over the alley  this is
an issue because there is a covenant that the common alley must be kept open since half the
apartments in the D’s building received natural alight and air from windows facing the alley
o MA statute: Even if the restriction is of such benefit, it won’t be enforced except by
monetary damages if (1) character has changed, (2) continued restriction would impede
 reasonable use of land, (3) enforcement is inequitable or not in the public interest
(Social Utility Argument)
 Here: restriction was put into place when this was a neighborhood of single family residences -
 now they are high rises BUT there is still a valid benefit of light and air to the apartment
o In light of growth in Boston, it is no longer as reasonable to protect restrictions on light
and air in the area – even though D’s apartment benefits
o The 12 story hotel portion of the new building is only feasible if connected to the hotel
o Pro-public interest because it would allow use of a previously vacant lot and increase
tax revenue
 Middle ground: Liability remedy  money damages are granted to D to account for loss of air
and light
o Recall: liability remedy (damages) v. property remedy (injunctive)
- City Zoning
o Origins, Authority, and process
 Statutory approach rather than doctrinal
 Seeks to avoid disputes by sorting a landscape by uses
 Compare democratic character of zoning v. condos
o Zoning: more inclusive because the people are creating the government but the power
of municipal zoning is responsive to concentrated interests (like developers) – more
subject to political capture
o Condos: less disproportionate based on concentrated interest because there is a
distribution of attention
 Policy Considerations
 Zoning: no one signs up for it
o Done by the government
o Unlike condos- does not feel like “you signed up for this”
 Result  release valves and loopholes
 Police power
 State governments hold police power
o Town does not have the power until they are assigned it by a zoning enabling act
o Governing body of the city council or county board of commissioners have the power to
create zoning ordinances  comprehensive plans: plan for jx as a whole created by a
planning commission
o Zoning enabling act also authorizes municipalities to delegate power to an admin
agency like the zoning board or board of adjustment to evaluate requests of relief from
zoning requirements
 Mechanics of zoning
 Use zoning: divides municipalities into districts and regulates the kinds of uses allowed within
each district – usually cumulative
 Area zoning: regulates the size of the lots, height of the buildings, and requirements to set back
structures certain distance from the border
o Village of Euclid v. Ambler (Zoning = appropriate use of police power) (Municipals are to zoning as judges are to nuisance)
 Ambler sued Village of Euclid after he lost value for the cost of his property because his land cannot be
used for industries, theaters, banks, or shops now (10k  2.5k); Ambler tries to make an argument like
Blakely: compensate me for the value I am losing
 Ambler argues: right to dominant development
 Court responds: contextual and interdependent
  Rule: Municipality gets to decide what uses fit the land the weigh the costs and benefits – this is a
constitutional exercise of power (similar to the courts role in nuisance doctrine)
 Power to legislate zoning based on concepts of nuisance
o Release Valves
 Prior non-conforming use
 Town of Belleville v. Parillo’s (Prior Non-Conforming Use must stay substantially the same)
o Facts: Parillos opened before the zoning ordinances and was a restaurant so it qualified
as a prior non-conforming use once a zoning ordinance put it in a residential zone, but
since then, it has turned into a dance hall  now has fewer seats, only open 1 day and
three nights, psychedelic lighting, and minimal food options
o Rule: Any prior non-conforming use has a vested right but it must stay substantially the
same kind of use (can repair and renovate so long as it conforms to prior use)
o Problem of Vagueness: at some point the change happened but what creates the
ultimate change is the impact on the neighborhood (noise and crowds)
o Rationale: As a dance hall and a restaurant they offered the same things: food, dancing,
and drinking  but the proportions changed
 And although it is not facially obvious that it is a totally different use – it is
within the same family of prior non-conforming uses
 But the deal-breaker is the neighbors' – this is based on nuisance doctrine and
the neighbors' expect that these disturbances will be screened out by zoning
 Vested Rights
 Stone v. City of Wilton (When zoning ordinance constitutes a taking under 14A)
o Facts: Stones purchased 6 acres of land to build low income housing; at the time the
land was bought ¼ was for single-family homes and others were zoned for multi-family
residences; P paid for an architect, engineering fees, and an FHA loan for construction;
but the zoning commission rezoned the entire plot to single-family use  filed suit for
either injunction to prohibit the zoning ordinance or if it is passed then $570k in
compensation
o Rule: In determining where a zoning regulation ends and a taking of property begins,
the test is essentially one of reasonableness – “depends on the type of the project, its
location, ultimate cost, and principally the amount accomplished under conformity”
(Paaske)
o Problem of Vagueness: At what point have you done enough to have a reliance interest
that you could do this thing upon your reliance on the initial zoning ordinance?
 When you buy it  No vested right
 Increased care and identifiable plan  no vested right
 Court looks to the financial expended AND the amount accomplished
 Potentially: buy materials AND lay foundation  require
compensation
 But anything before that – nothing: even w/ decrease in value
 Variances (Administration Flexibility)
 2 varying reasons for allowing variances
o Constitutional safeguard
 Land cannot be put to “any” reasonable use
o Tool for flexibility
 Property owner wants to put the land to a reasonable use that is prohibited
under the ordinance
 Krummenacher v. Minnetonka (tool for flexibility v. constitutional constraint)
 o Facts: Liebeler was given a grant of variance to expand her nonconforming garage by
the city of Minnetonka; Krummenacher (her neighbor) challenged the decision;
Liebeler has a lot with a home, garage, and detached garage; detached garage is a
nonconforming use and wants to add a yoga studio and craft room along with
improving the appearance and leakage issues
o Rule: 4 requirements for variance:
 (1) undue hardship
 Trial court: “Reasonable manner” standard: the property owner
would like to use the property in a reasonable manner that is prohibited
by the ordinance
 Supreme Court: Plain meaning argument: the property cannot be put
to any reasonable use under the ordinance
 (2) unique circumstance,
 The existing nonconforming setback is a circumstance that is not
common to every similarly zoned property
 (3) intent of the ordinance, and
 Improvements do not increase the footprint of the garage – would
comply with maximum heights and size requirements
 (4) neighborhood character
 Does it alter the character of the neighborhood?

Buying and Selling Real Estate

Structure, Roles, and Responsibilities

- The pressures
o Social Reality
 Big money obligation
 Money: This transaction is likely the biggest transaction most will enter into in their lifetime
(biggest asset)
 Identity: Where you are going to be = who you are going to be
 Market volatilities
 May feel it is unfair to have to go through with a contract if the house loses its value due to the
market
 May motivate a desire to get out of the contract
o Legal Structure
 Assigns risks and responsibilities around certain predictable kinds of problems
 Provides guidance in moments of crisis so the deal does not fall through
- The process
o Purchase option:
 The buyer and seller reach agreement and sign a purchase option – establishes the basic terms and bars
seller from bailing or selling to someone else
 The offer stabilizes things while the information-rich and complex transaction moves forward
 Who can bail?
 Up-Market
o After signing offer to purchase but before executing the Purchase and Sale Agreement,
the seller receives a much higher offer for the property and would like to accept it
 Offer to purchase gives buyer a right to purchase the house at the price accepted
and Buyer can enforce that right
  The buyer has essentially purchased a contractual limit on the freedom of the
seller to find other buyers, and an option to buy the house at a certain price
(purchased a hold on the movement of the market)
 Seller cannot make the buyer renegotiate the price (Hickey)
 If seller executes sale at the higher price then following remedies available:
 Specific performance
 Damages: take the difference in money: their offer v. higher offer
 Down-Market
o The buyer can bail, but the seller keeps the deposit (the deposit binds the seller, as
above)
o Purchase and Sale Agreement:
 Seller agrees to convey title at a date in the future when the closing takes place – buyer makes a deposit
 the seller remains the owner but they are in a holding period until the transfer
 In the absence of paperwork (can apply both here and to Purchase Option)
 Formalism: Statute of Frauds
o Purpose: prevent scam and ambiguity
o Burns v. McCormick
 Facts: Halsey was an old man and he asked P to sell their home and come take
care of him in exchange for his house, furniture, and equipment upon his death;
they did all this and cared for him for 5 months before he died; but in his will
he left nothing for the P
 Rule: What is done must itself supply the key to what is promised: If you
cannot make sense of the conduct without the assumption that they were
promised the property then the Court may enforce the oral agreement
 Acts that suggest purchase may entitle one to equitable relief even
without written conveyance, but there is a logical alternative
explanation for P’s behavior: they were hired as caretakers.
 Rationale: if you rule in favor of the caretakers, it gives people ability to
deliberately manipulate the situation: opens the door to bad actors and gives
them a plan
 Pragmatic SoF Exception: Estoppel
o Pragmatic revision without undercutting the formalist goals
o Hickey v. Green
 Green advertised a lot for sale; Hickey gave Green a deposit check w/ address
and description but leaves the name open on request; Green holds check and
never endorses it; Hickeys sell their home
 Rule: A contract for transfer in land may be specifically enforced
notwithstanding lack of compliance with SoF if it is established that the party
seeking enforcement, “in reasonable reliance on the contract . . . has so changed
his position that injustice can be avoided only by specific performance.
 Rationale: This does not give actors a plan – less room for scamming
 Selling your home creates a considerable disadvantage to yourself
o Executory Period: (Removal of Contingencies)
 Buyer’s obligations contingent on
 Home Remaining in Condition at time of purchase Damage: EX: Fire
o The seller’s property is damaged in an electrical fire a week before the scheduled
closing. Does it matter whether the seller had property damage?
 o Usually the Purchase and Sale Agreement obliges the seller to deliver the property in
the condition that it was in at the time of the agreement
 Possession and Condition of Premise: agree at closing to give property in the
condition it is in now
 Extension to Perfect Title or Make Premises Conform: (1) void or (2) seller
can make property whole within time (Seller can uphold) – burden is on the
seller, for a reasonable amount of time, before the buyer has the option to
dissolve the contract
 Buyer’s Election to Accept Title: the buyer can still enforce the deal
 Buyer gets insurance payout and if that can’t happen then the seller
must discount property (Buyer can uphold)
 If no insurance then Insurance Clause is violated  breach of contract
and buyer can get out (Buyer can bail if no insurance)
o If there was no explicit provision, then the risk of loss would fall on the buyer, because
of the doctrine of equitable conversion, which treats the buyer as though the transaction
had already been completed – even though the seller retains the right to possess the
property until the closing
 The seller’s ability to convey marketable title: Ex: Unclean Title
o The buyer, in examining the state of the property’s title, discovers a judgment lien
against the property, arising from a tort suit
 Seller promised to deliver clean title
 Title Deed: seller agreed to perfect title so in this case, they are failing
to deliver what they promised
 But Seller has a chance to fix this
 Extension to Perfect Title or Make Premises Conform: Seller has a
period of time to fix the title
 If they don’t, then the Buyer can bail
 Failure to Perfect Title or Make Premises Conform: But if he fails
to do so then the Buyer can bail
 But if the seller does not have the money to fix it and the Buyer wants to bail,
the Seller can keep the buyer in by using money from sale to clear title
 Use of Money to Clear Title: money from the purchased used to clean
title after the deed is delivered
 Buyer’s ability to get adequate financing
o The buyer loses her job after Sales & Purchase and cannot get financing
 Contingency Clause: the buyer can walk so long as they make a good faith
effort to obtain financing
 Sellers obligations contingent on the buyer paying
o Breaches
 Seller Gave A Fraudulent Misrepresentation and Nondisclosure
 Fraud
o (1) False statement concerning a material fact
o (2) Maker of statement knows it is false
o (3) Made with intent to induce reliance, and
o (4) Consequent injury to party relying on the statement
 Nondisclosure (2 approaches)
o (1) Nonfeasance does not call for recovery (only misfeasance) because the buyer must
investigate (called caveat emptor)
  Incentivizes the buyer to investigate
 AKA NO duty to disclose
o (2) Nonfeasance is a misfeasance and the seller has a duty to disclose where the seller
of the home (1) knows of facts materially affecting the value of the property (2) which
are not readily observable and (3) not known to the buyer
 Equitable doctrine of fairness – constitutes fraudulent concealment that will
entitle the buyer to a remedy
 Creates more uncertainty and less incentive for buyers to investigate
 Seller is in the best position to know what is wrong with the property – note
that is not always true: banks, rental properties, owners look away from issues.
 Case
o Johnson v. Davis (misrepresentation and nondisclosure)
 Facts: Davis bought a house from Johnsons for $310k: deposit of 5k and 26k
due 5 days before closing; paid 5k but then after they saw that the window
plaster was peeling and inquired about the issue; Mr. Johnson said there had
been minor issues but it was fixed; Davises then paid; several days later – water
gushing in, major roof damage requiring $15k in repairs
 5k: Nondisclosure
 26k: Misrepresentation
 Rule: The Davis get $31k because nonfeasance is a misfeasance when the seller
is aware of latent defects and fails to disclose the issue
 Seller’s Failure to Provide Marketable Title
 Buyer’s failure to make good faith efforts to obtain financing
o Closing
 Lender will fund the loan, buyer will pay the price, and seller will convey the property through a deed
 Once the deed is transferred – all obligations cease
 The seller agrees to remove an old building from the property but says he needs another 2
weeks after closing to complete the project
o Must be put in the deed as a covenant for further assurances or in a separate contract so
it doesn’t merge
o Merger Clause: all obligations cease once the deed is transferred – the only obligations
that survive the transfer of deed are ones that are written in the deec because the
agreements of the Purchase and Sale Agreement merge into the Deed
 Rationale: concern that people will blow up the agreement after closing which
would create uncertainty and confusion
Recording Act
- General
o Recording acts address an unusual dispute where one owner decides to sell a property multiple times to different
buyers
o Policy: The aim of the recording system is to consolidate information about ownership and lower search costs
for buyers who want to find out if the seller has marketable title. If you search through record according to your
recording act and then record your own purchase, you are protected against the seller making any further tricky
sales. Thus, the recording act problems always start when a purchaser fails to record the purchase.
o Purpose: the intent of the Recording Act is to protect bona fide purchasers: an interest holder who purchases in
good faith without notice a conflicting interest
 If you find an unbroken chain back and find a clear record coming forward then you as a purchaser can
rely on that
 If you rely on and feed the system then you are protected
  Input: do your homework and know that the records here are an exhaustive list you can rely on
 Output: if you record quickly and accurately, nothing will come along to interfere
- How to conduct a title search
o (1) Search grantee index backwards in time, until you have gone far enough back to assure yourself the title is
good
 Start with the seller to make sure he was once a grantee  then verify that his grantor was once a
grantee  and so on
 most places specify how far back you go or until you reach a sovereign
 Marketable Title Index: describe time period beyond which interests are lost if not re-recorded (often
50-60 years)
o (2) Switch to grantor index and go forward in time – see if any of the grantors sold to another party outside of
the chain you just traced that might supersede the counterpart in YOUR presumed chain of title
 You only need to look between the date the first grantor obtained his deed and the date a deed out from
that grantor was recorded
 Note: records of sale are listed in the recording system in the order recorded NOT in the order of the
sale/execution that is being recorded

Grantee Index Grantor Index

Present Owner C Purchased from B Present Owner C

B Purchased from A B

Looking to see if A sold to

A Given by Sovereign A anyone besides B

- Types of Recording Acts

o Types of Recording Acts
 Race Statutes: the person who records first prevails (NC) (LA)
 Prioritize hurrying
 Notice Statutes: a subsequent purchaser always prevails over an earlier purchaser so long as the
subsequent purchaser DID NOT have notice of the earlier conveyance (not important who records first)
(23 states)
 Prioritize a good faith purchaser
 Notice can be actual or constructive
 Race-Notice: Subsequent purchaser prevails over prior unrecorded interests only if she (1) has no notice
of the prior conveyance at the time she acquired her interest and (2) records first (25 States and DC)
 Ask 1) Can you enter the race? (good faith)
o If yes  2) Did you record first?
o Types of Notice
 Record notice: relevant info in the grantor and grantee indexes
 Actual Notice: where a party subjectively knows about an earlier conveyance
 Constructive notice: exists when the grantee, by conducting a reasonable title search, would have
discovered the earlier conveyance
  Holds true even if the grantee didn’t actually search the record
 Inquiry notice: a type of constructive notice – notice will be imputed if the subsequent
purchaser would have discovered the conveyance had he acted reasonably to investigate facts at
his disposal.
- Nuances
o Estoppel by deed:
 If a grantor purports to convey a property interest she does not own to a grantee, and the grantor
subsequently comes to own the property interest by receiving the deed, ownership is automatically
vested in the grantee.
 E.g. if O to A but O doesn’t actually own the property, A gets nothing. But if O later obtains title to the
property, the deed vests immediately in A.
 O cannot assert ownership rights against A BUT if O gives to B and B records before A then B
might have ownership rights over A
o Wild Deeds:
 Deeds recorded outside the chain of title. This may be because the deed was recorded too early to
appear in the chain of title in a search (before the “original” grantor obtained title to the property) or too
late to be discovered in a search (after a deed from that grantor to another party was recorded)
 The later purchaser will always prevail over the earlier
o Shelter Doctrine:
 Shelter doctrine allows a bona fide purchaser (i.e. an innocent later buyer) to convey property to a third
party even if the third party had actual notice of an earlier conveyance – ensures that innocent buyers
have unrestricted ability to transfer the property.
- Cases
o Sabo v. Horvath
 Facts: Lowery occupied a piece of land but did not yet have official title from US gov.
 Lowery conveys land to Horvaths  Horvaths recorded
 Lowery then received the official land patent  Horvaths did not rerecord
 Lowery then sold again, this time to Sabos  Sabos recorded
 Rule: the Horvaths first recording has no meaning for race or notice because it was outside the chain of
title and considered a wild deed.
 Rationale: The Sabos are looking up until US because that is where the receipt of property to Lowery is
recorded
 The doctrine cannot do anything to punish Lowery and merely rewards the party that fully
complied with formalities
- Purdy Rules
o 2 Buyers – 1 Seller
 Where you have contests between 2 purchasers from one seller: look to race, notice, race-notice
rd
o 3 Party Buyer
 Where you have a third-party purchaser: look to wild deed and shelter doctrine
 Wild Deed: All three weigh in favor of 3rd party
o Hypos
 O to A (A does not record), O to B (B has notice of the earlier conveyance to A) B records. A records. B
sues A for title
 Race JX: B prevails because B recorded first
 Notice JX: A prevails because B knows
 Race-Notice JX: A prevails because B knows
o Note: If B did not have notice then would prevail in all 3
  O to A (A does not record), O to B (B has no actual notice of the earlier conveyance to A) B records. A
records. B sues A for title
 Race JX: B prevails - recorded first
 Notice JX: B prevails - purchased most recently and had no notice
 Race-Notice: B prevails - had no prior knowledge and recorded first
 O to A (A does not record), O to B (B has no actual notice of the earlier conveyance to A) A records. B
records
 Race JX: A prevails
 Notice JX: B prevails
 Race-Notice: A prevails
 O to A (A does not record) A to B (B records – but it gives no notice to Z because it is out of the chain
of title); O to Z (Z has no actual notice of the deed from O to A); Z records. B records deed from O to
A. B sues Z
 Race JX: Z prevails
o B had to record A to B sale and O to A sale – race is not the first to record but the first
to record in the chain of title (the first recording was a wild deed)
 Notice: Z prevails
 Race-Notice: Z prevails
 O to A (A does not record) O to X (X has notice of conveyance from O to A) X records. A records. X
conveys to Z (Z has no actual notice of deed from O to A) Z records. A sues X and Z for title
 Race JX: Z prevails (X recorded before A)
 Notice: Z prevails
o No constructive notice because Z looks and sees that X got the land from O then come
forward until they reach X and stop -- not obliged to keep going to see O to A –
inconsistent sale to A does not show up to Z
 Race-Notice: Z prevails
 O to A (A does not record). O to X (X has notice of conveyance from O to A) A records. X records. X
to Z (Z has no notice)
 Race JX: A prevails
 Notice: A prevails
o Constructive notice: because A began the chain of title so Z can go back and see
 Race-Notice: A prevails
 O to A (A does not record) O to X (X has no actual notice from O to A) X records. A records. X
conveys to C (C has notice of O to A) A sues C for title.
 Race JX: C prevails
 Notice: C prevails
o Shelter Doctrine: the bona fide purchaser who is now selling should get the benefit of
his innocence even if the 3rd party knows
 Race-Notice: C prevails

Fair Housing Market

- Basics
o Problem with the Housing Market
 Markets allocate resources by ability to pay which is sloppily distributed to middle-class
intergenerational real-estate
 Real estate markets were intended to build up the middle class but excluded blacks
 Property law is designed to make markets and give the power to sell
  Market and real estate are only legitimate if it guarantees certain kind of equality that does not exist
from bargaining  solution: FHA
 FHA seeks to make the market more neutral and more fair but does not fix inequality
 Real estate is connected to lifetime disadvantage based on location  fixes discrimination but
not segregation
o What makes a housing market fair?
 FHA is a party of micro generational legislation intended to push against racial castes  real estate
market is central to this issue
 FHA is extending protection to private transactions
 Classification is a primary means of subordination
 But what happens when classification is undone but subordination still remains
o Continued inequality
 Rates of home ownership differentials: 30% differential between white families under 35 and black
families
 White family median wealth is 8x more than black families
 Legacy of policies of wealth creation and building middle class for those who were built into it
– whites
 It matters so much where you are born in how your life urns out – real estate economy is so vital
- Fair Housing Act, Title VIII of Civil Rights Act of 1968
o The Fair Housing Act, Title VIII of the Civil Rights Act of 1968, prohibited discrimination on the basis of race,
color, national origin, and religion (later: sex, disability, and family status were added) in the sale/rental of
housing and in other housing contexts like residential finance and activities by real estate brokers and appraisers
 The FHA is very broad because Congress anticipates formalistic efforts to evade it and tries to throw
them off by throwing a lot of provisions out there are multiple chances to stop discrimination at varying
steps of the process
o Policy
 Someone who thinks they have been discriminated against can go into the court and the court can assign
a lawyer to represent them
 Creates a right and it creates a policy that certain statutes seek to advance a broad structural policy like
the desegregation of housing markets by offering public resources to advance the policy that are close to
the ground
o Provisions
 § 3602: defines dwelling broadly, including vacant land or an anticipated development
 § 3604 shows the prohibitions
 Refusing to sell, rent, negotiate, or otherwise make unavailable a dwelling to any person
because of race, color, religion, sex, familial status, or national origin
 Also dealing in any differentiated terms or conditions along the protected lines when selling or
renting a dwelling
 Making or publishing any marketing or notification materials that indicate a preference or
limitation
 Representing to a person that a dwelling is not available when it is in fact available because of
their protected characteristic.
 § 3603 Exception
 If you don’t own more than three houses, any single-family house rented or sold by the owner is
exempted.
 Or renting out rooms or units in dwellings containing living quarters occupied or intended to be
occupied by no more than four families living independently of each other, if the owner actually
maintains and occupies one of such living quarters as his residence
  BUT not if you use any manner or sales or rental services of a broker, agent, or you violate the
prohibitions on discriminatory marketing/notification (3604(c))
- Plaintiffs Burden
o P must prove either discriminatory intent or disparate impact on the basis of a protected category
 Disparate treatment: intent to treat members of a protected class differently from others and deny them
housing opportunities – even if it is merely a factor and not only factor
 If P has direct evidence of discrimination intent  like a statement  then you don’t need
Asbury 3-party test
 If P has circumstantial evidence  apply Asbury
 Evidence of discrimination before a civil rights law is passed, followed by “neutral” policy to
maintain the status quo can be sufficient to establish discriminatory intent (Labrie)
 Disparate impact: D’s Actions have a disproportionate, exclusionary effect on members of a protected
group that is not justified by legitimate government or business objectives
- Race Case
o Asbury v. Brougham (framework for proving FHA violation w/ circumstantial evidence)
 Asbury (black woman) tried to rent a place at Brougham. Based on her salary, she was qualified to rent,
but the manager told her there were no vacancies once she got there; manager referred her to an all-
black apartment; the day after Asbury’s S-I-L who is white went to ask and they offered her units
 (1) Plaintiff must provide prima facie proof of discrimination
o Asbury’s assertion: she was treated differently because she was black under 3
provisions in 3604 – told no available units because of race
 (d): to represent to any person because of race, color, religion, sex, handicap,
familial status, or national origin that any dwelling is not available when it is
 (b): to discriminate against any person in the privileges of sale or rental of a
dwelling
 (a): otherwise make unavailable (captures all) or deny a dwelling to any person
because of their race, color, religion, sex, familial status, or national origin
 (2) D shows legitimate, nondiscriminatory basis for refusal
o Brougham’s argument: to resist liability they argue there were other justifications and
non-discriminatory reasons
 If you live there and have children you must live in the townhomes
 (3) P shows that D’s reasons are pretextual (a false reason given to mask the real reason)
o Asbury’s response:
 Proof the complex provided exceptions to the children’s rule and townhomes
o Court found that they had a policy to tell callers that no vacancies existed so and
encouraged them to come look at the property so they could inspect the future tenant
- Familial Case
o Human Rights Commission v. LaBrie Inc. (facially neutral reform revealed as pretext)
 P’s bought mobile home in trailer park owned by LaBrie, which originally had a policy of prohibiting
people with minor children; After a VT fair-housing awl amendment prohibited this kind of
discrimination, the rule was changed to prohibit more than 2 occupants in each home in the park; no
minor children ever moved into the park; the Ps had a child and are told they have to vacate
 Liable under two theories at trial level
 Disparate treatment: D intentionally discriminated against members of a statutorily protected
category because of their membership in the group – Family status
 Disparate impact: D facially neutral policy has a disproportionate effect on a statutorily
protected category
  Rule: Evidence of a discriminatory practice prior to civil rights legislation, coupled with a post-
legislation pattern of maintaining the status quo, may be sufficient to establish the intent to continue the
discrimination through a “neutral policy”
 Purdy: all about inferring based on evidence: “We had to leave because we had a baby”
(unveiling the pretext)  P can establish liability by showing what policy is really there to do.
o Is the policy the only way to achieve a legitimate business purpose
- Advertisement/Roommate Case
o What does Congress mean by “dwelling”
 Goal of the FHA is to regulate the housing market  but to be in the market you must be renting or
buying a “dwelling”
 Housing and Urban Development have long held that advertising that expresses a preference to sex is
not a violation of the FHA as long as one is not advertising “a separate unit”
 Cannot discriminate based on race, national origin, disability, or family status
 The Roommate.com case went further saying it does not apply to roommate situations because
“dwelling” does not include these situations – can advertise beyond sex in roommate cases
 Interpreted dwelling as a full place to live – more than one bedroom
o Exemptions
 There is an exemption in 3603(b) for rooms or units containing living quarters intended to be occupied
by no more than four families living independently.
 But the exemption does not apply if
 (1) Owner is running an operation (three or more houses)
o Rationale: hope that a lot of people will not have to encounter the prohibition
 (1) The owner isn’t living there
o Rationale: only an abstract dislike which is not allowed
 (3) There is discriminatory advertising or other statements under § 3604(c)
o Rationale: if you are advertising, you are infusing that priority into the market
o Fair Housing Council of San Fernando Valley v. Roommate.com
 Roommate.com operates internet business which helps people find roommates; people can post
information about themselves including sex, religion, marital status, etc; Users create profile including
sex, sexual orientation, family status, and Roommate matches them based on answers; Fair housing
council sues on the basis of sorting and steering
 Rule: The Court decides that the anti-discrimination provisions of the Fair Housing Act do not apply to
the selection of roommates
 Issue is whether the term dwelling encompasses roommates – Court says the stopping point of
the term is at the door of the residence
 Rationale: the ability to enter into intimate and private relationships is crucial to constitutional liberty
rights
 To identify an “intimate relationship,” we look to the size, purpose, selectivity, and exclusivity
of a relationship
 A roommate relationship is very intimate, given shared access to a home, exposure to person
and vulnerable settings
 Government regulation of the ability to pick a roommate is thus an inappropriate intrusion into
the center of people’s private lives.
- Exclusionary Zoning
o Basics: (Does not fall under FHA: no rule on wealth class)
 Structural inequality
  Market is sorting people into places that can help them flourish or limit them by their ability to
pay/wealth (influenced by the racial wealth gap); individual decisions don’t change the shape of
the landscape. In the aggregate, family wealth persists.
 Exclusion based on the ability to pay
 But it perpetuates discrimination because class and race intersect
o Cases
 Southern Burlington County NAACP v. Township of Mount Laurel
 NJ municipalities are excluding lower income level residents by reserving lots of land for
industrial use (despite not needing to) and limiting residentially-zoned land to the kind of
housing density that is suited only to middle- ad upper-market; residents want to minimize the
number of school age children and maximize the property tax levels to achieve the best funded
public education system without paying too much
 Holding: Court invalidates the zoning regulation
o Land use regulation is part of state’s police power  because police power should
promote the general welfare, which at minimum includes adequate shelter for all
citizens: “No municipality may exclude or limit categories of housing” for the reason of
excluding people of a certain class
 Rationale: General welfare of NJ: (1) municipalities are interdependent so if they are not able to
live in Mt. Lauren then there is a burden on other cities and (2) human need for shelter
 But, this decision shows how bad the courts are at not making elaborate admin policy decisions
o Original remedy was allowing township to fix deficiencies itself – trying to give
deference
o But it fails – every municipal has an obligation to provide realistic opportunity for
decent housing for municipality’s “resident poor”
 Purdy: Fallacy of criticism toward affordable housing mandates is that they distort the market
by requiring construction of houses that would not otherwise be profitable. But actually a
deregulatory measure that moves housing market closer to lower-regulation baseline
o This is especially true with “builder’s remedy,”  allows a builder who wants to
include affordable housing into their development to knock out local restrictive
measures.

Public Trust Doctrine: Public Access to Private Property

- Basics
o General Rule: there is no general right to public access on private property
 Two exceptions: NJ (Princeton) and CA (malls)  right to be on certain kinds of privately owned
property
o Public trust doctrine: the public has a right to use tidal lands and water (beaches, fisheries, rivers) which extends
to dry sand for recreational uses
 Comes from common law/ancient principle that sovereign owned water and people have rights to that
water (Mundy)
 Modern: in order to exercise those rights, the public has a right of access over municipally owned dry
sand areas to get to the water (Avon)
 Similar to necessity doctrine in easements in that it is an intrinsic and inalienable right
 When state sold land to private parties, it came with an implied caveat that state holds some
rights for the public
 An owner can sell what they have but the state is unable to give away access since that belonged
to the public.
- Origins of Public Trust
 o Arnold v. Mundy: P owned a farm that had a river, on the river was an oyster bed staked out by a previous owner
 3 types of property
 (1) Private  private property
 (2) Public  this land can be heavily restricted
 (3) Common property  categories in this classification are defined by public access rights and
CANNOT be destroyed by the state
o Question
 Who owns this  Can I be here?
o What can the public do?
 Can use for fishing, navigation, and no one can stop you from fishing, gather,
and boating
o Why is this stuff in the common category?
 Fish and running water – they are both always moving and. You get the fish if
Avon Mundy
you catch it but then, it will be gone
o Matthews v. Bay Head Improvement Assoc. (New Jersey) (the right to dry sand)
 Facts: Nonprofit BHIA (D) owns beach and limits membership to Bay Head residents and certain other
paying guests and community members
 Rule: The Association’s membership and beach must be open to the public
 Rationale:
 (1) The beach is very unstable and cannot be built on
o The court will still apply Public Trust Doctrine to resources that are better for passing
through/using then development and building
o Public has the right to pass through the dry sand to enjoy the water but also the right to
enjoy the dry land for recreation purposes (Avon)
 (2) What if you need to pass private property to get to Public Trust Land?
o The common access to public trust land > right to exclude
o Hierarchy of intrusion to protect a privacy interest: (1) municipal access (2) quasi-
public (3) private but open to public more (hotels), (4) classic private property
 Here they can access through BHIA (quasi-public) but if that was not an option
then would use hotel
 Can still require payment
 Note: Abstract principle: Owner can’t give more than they have and cannot transfer rights they don’t
already own
 Originally, the state of NJ owned the tidal lands subject to the public trust doctrine  it sold to
BHIA, but it cannot eliminate the public beneficiary’s right by transferring the property, so it is
still subject to limitations of Public Trust Doctrine
 Right of access never goes away (whether owner is municipality, nonprofit, or private)
 This is how almost all beach access cases are resolved.
o State ex Rel. Thornton v. Hay (Oregon)
 Facts: Appellants were trying to construct a fence on the drysand area of their beachfront property in
Oregon
 Rule: Title to the oceanfront property includes the dry-sand but the general public has acquired a
prescriptive easement through custom use:
 Custom use has the following requirements: (1) The use must be ancient (2) without
interruption (3) peaceable and free from dispute, (4) reasonable, (5) certain, (6) obligatory, and
(7) not repugnant
o (1) so long as there has been a system of land in Oregon, the public has freely exercised
the right to use dry-sand
 o (2) public’s use and enjoyment has never been interrupted by private landowners
o (3) satisfied by second requirement
o (4) evidence that the public has always made use of the land in an appropriate and
mindful manner – if not municipal has stepped in
o (5) satisfied by the visible boundary of the dry0sand
o (6) treated as a public right for a very long time—and everyone has respected it as if it
were law
o (7) it is not outrageously in conflict with other property law: it runs right up to the right
to exclude
Commons: Open Access/Free Use Traditionally Classic Property
Purpose: to give access to infrastructure and gifts of nature Purpose: to answer the question: can I use that?
Protects: public access to non-rivalrous resources Protects: finite items (2 people cannot both use them or have them at the
same time) – resources that are rivalrous
Rationale Rationale
I. Infrastructure I. Benefit A: Conflict Avoidance
a. Things that connect people for basic and important purposes a. Internalization: person deciding how to use it deals with the
b. Network Effect: value increases based on the number of consequences
people using it (highway, phone, email) b. Owners as caretakers – Ellickson: most decisions the person
II. Free Gifts of Nature in the best position to make the decision about the land is
a. They are just there and you ought to universally participate the person living on the property (highway, phone, email)
in their benefit II. Benefit B: Keeping Property in Motion
a. How can I get the right to use that?
b. Property + Contract = Market
III. Benefit C: Autonomy (Glavin)

Adding to the World: Non-Rivalrous Resource of Knowledge

Basics to Creative Labor
- Knowledge as non-rivalrous but labor-intensive
o Knowledge is a non-rivalrous resource – multiple people can use it at the same time without creating scarcity
and the only loss is the cost of transmission
 Compare this to real property and the chart above: property enforces rights to solve scarcity problem,
delineate ownership, and make property alienable so that it can move within the system
o But if there is no way to place an ownership structure on knowledge, then people won’t both aggregating it
because they won’t get back a reward for producing it
 Ex: you have to work to gather information (like a fox or water) but need incentive for people to put in
that work
o Congress chooses to keep some things in the commons to keep these materials available for building while also
protecting other genuine inventions which add to the total world of culture and technology
 Over time it aids the system in the long term goal of not just preserving the commons but
enriching/populating it
 Solution: time-limited property rights over how the knowledge is used.
 Eventually the intellectual property will get into the domain
Copyright (original to you)
- Copyright Act of 1976 (17 U.S.C. § 101 et. Seq)
o “Original works of authorship fixed in any tangible medium of expression”
 To qualify for copyright protection:
 (1) Originality (Feist): Independent creation of author with some minimal degree of creativity
 o Facts, basic foundational blocks (e.g. the alphabet) are not copyrightable
o Exception: A compilation of facts can be if they are a work of originality (sine qua non)
 (2) Work of authorship (not included – ideas, methods, systems, etc.)
 (3) Fixation: work must be fixed in some kind of tangible medium
 Protection is automatic – exclusive right to use or authorize use of works and licensing of derivative
works for limited time
 Creator: 70 years + life of creator  then moves to public domain
 Company: 95 years or 120 years from date of creation  then moves to public domain
 Originality protects and rewards
 Protects: shields mere facts from ownership and keeps them available for public use
 Rewards: adding something new to the space
o 3 main goals
 The promotion of learning: giving authors a copyright for published works, their works would then
appear in the public sphere for the general populace to learn and read from.
 The protection of the public domain: by limiting the scope of copyrights, the law actually ensures that
works will eventually enter the public domain for the public’s right of access and use
 The granting of an exclusive right to the author: state common law protection gives author exclusive
rights until publication when the federal copyright law then provides protection for the duration of the
copyright.
o Prima Facie case for copyright violation
 (1) P owns a valid copyright and
 (2) that D copied the original elements of P’s work
 Only expressions are actionable, not ideas or facts
 At some point ideas turn into expression
 Consider substantiality of the use
- Fair Use Doctrine (defense to copyright violation)
o Basics
 Use of copyrighted works without owners consent is allowed for purposes like criticism, comment,
news reporting, teaching, scholarship, or research
 P claims copyright violation, D claims fair use, Ct assesses fair use factors
o To determine whether it is a fair use, consider:
 (1) Nature of the use
 a) is it transformative
 b) is it commercial or nonprofit
 (2) the nature of the copyrighted work
 Is it an original work or compilation?
 (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
 Parody comes into play here
 (4) effect of the use on the market value of the original, copyrighted work.
 Real issue  a) Does the new work occupy market space previously occupied by the
copyrighted work?
 Not an issue  b) Does the new work make the old work not worth reading?
o Note: negative commercial effects do not always weigh against D because there are
values of free speech: parody and criticism
- Copyright Cases
o INS v. Associated Press (1918)
 AP alleged that INS was pirating news that it gathered for its members; Facts cannot be copyrighted
  Holding: Court holds that a quasi-property right exists in published news such that appropriating the
published news gathered for another for commercial purposes constitutes unfair competition in trade.
 Note – the right to exclusion is only against competitors, not the public at large, and only for a
period of time
 Rationale: We need a legal regime that will balance between rewarding someone for generating the
news (in order to provide incentive to make effort) and making sure news is disseminated widely (which
serves the general public interest)
o Feist v. Rural Telephone (1991)
 Rural telephone is seeking copyright protection for its telephone book
 Holding: Court rules that Rural’s telephone book is not protected by copyright because there is nothing
original/creative about placing subscriber’s information in alphabetical order
 Facts cannot be copyrighted ever but some compilations of facts can be copyrighted if they
include originality
 Rule: Copyright does not reward effort but rather originality
 1. Work must be independently created
 2. Work must possess some minimal degree of creativity
o The bar for originality is not super high – if Feist had been more strategic and added
some original elements/organization, he would get full copyright protection – only need
to do something that is not completely obvious
o Suntrust Bank v. Houghton (2001) (fair use: the point is to make copyright in line with First Amendment: Avoid Censorship)
 Suntrust holds GWTW copyright; Randall writes TWDG which is a parody that uses several characters,
plots, and scenes from GWTW as a critique for the book’s whitewashed depiction of the racist South
 Holding: Court holds that TWDG is entitled to fair-use defense under Copyright Act § 107
 Rule and Application
 (1) Nature of the use
o transformative (+ Randall) but commercial (- Randall)
 (2) the nature of the copyrighted work
o Gone With the Wind -- original work
 (3) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole
o Substantial use (- Randall) but it is a parody (+ Randall)
 (4) effect of the use on the market value of the original, copyrighted work.
o The new work make the old work not worth reading because it shows that it is actually
really racist – but we don’t care about this because that would be censorship
o Has the same economic impact as replacing the old work but we don’t care because it
is a parody that makes a recognizable political point
 Note: The majority of these factors weigh against Randall but he still wins because it is a parody
Patent (original to all: novel)
- 35 USC § 101, Patent Act of 1952
o Issued to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition
of matter or any new and useful improvement thereof. (35 USC § 101, Patent Act of 1952)
o Protection requires registration and approval by PTO – Generally lasts 20 years
- Five Requirements
o (1) Subject matter must be patentable (a machine, method of manufacture, of composition of matter)
 You cannot patent parts of the natural world (Myriad)
o (2) Novel (and not just original, like copyright)
o (3) Non-obvious
o (4) Useful (Juicy Whip)
 o (5) Fully and particularly described
- Patent Cases
o AMP Myriad (2013)
 Facts: Myriad discovered the gene that increases risk for breast cancer (BRCA) and received a patent
giving it exclusive right to isolate it as well as a patent protecting cDNA based off of the DNA strand;
since BRCA 2 and BRCA 2 are unaltered, atnrually occurring molecules they are not patentable
 Rule: Cannot patent anything that is naturally occurring, even if discovering them requires substantial
effort/resources
 Policy: Allowing basic natural building blocks to remain free for use promotes efficiency and ensures
that important public goods are available to would-be inventors.
o Juicy Whip v. Orange Bang Inc.
 Facts: product is a dispenser which looks like a pre-mix beverage dispenser but actually works as a post-
mix dispenser – has the same benefit of fooling the consumer without the issue of bacterial growth.
 Is it useful?  useful so long as it confers some benefit, a low threshold to meet
 Rule: Any way of altering a product to make it look like another is itself a specific benefit and utility.
 The “utility” requirement can be easily satisfied because Congress is free to modify the law but until
then, inventions will not be unpatentable solely because they have the capacity to fool some consumers.
Water Law
- Surface Water
o Two systems
 Riparian system  East: wetlands: reasonableness
 Prior Appropriation  West: dry lands: system of absolute rights
o Lessons on systems
 Where you have a resource that is rivalrous and mobile (prior appropriation), a special regime that
creates sharing but anchor in certainty, secure existing uses, and accommodations if possible
 Water is different resource depending on its scarcity
 Prior Appropriation: responds to arid and non-existent water sometimes
 Riparian: everyone needs the water but it isn’t going anywhere
 Ownership rights are tricky
 Prior appropriation is not where you want to start if we were to create water rights today
o What is not a beneficial use?
 Ecological: don’t care about saving the fish
 Waste:

Riparian System (East: Wet) Prior Appropriation (West: Dry)

- Who: any adjacent owner – right comes with the
land
- Measure: Reasonable use
- Shortage or Conflict: reasonable adjustment
o Right is never lost
o No use outside the watershed (per se
unreasonable)
o Absolute priority for domestic use
- New User: (another new parcel)
o New uses always possible with adjustment
o Everyone else will have to adjust
o Depends on the merits of the use and
reasonableness
- Who: anyone with a beneficial use (WHO COMES FIRST)
- Measure: Amount diverted for beneficial use
- Shortage or Conflict: absolute priority for earlier
appropriators
o Priority for prior uses: keeps water where it has
historically been
o Right can be lost by non-use
o Extra watershed uses are completely okay
o No special priority for domestic use
- New User: (another new parcel)
o New uses strictly limited by available unclaimed
water
o If there is some unclaimed water – it is theirs
 o If there is no water – they get none
o If there is a wet year and some extra – they get wet
rights

Capture of Natural Resources (shared rivalrous resource that is exhaustible  negligence = liability)
- Ellif v. Texon Drilling Co.
o Facts: Ellifs gas escaped and wiped out after a drilling company made a mistake
 The Court says the owner has absolute title and absolute ownership
o Rule: But what they have is the opportunity to extract, possess, and own the resource below the land so long as
it is done in a nonnegligent way – doesn’t matter if they drain their neighbor’s entire pool because they both
have the opportunity to extract.
 If in negligent way and you create waste then you are liable for the amount withdrawn for your
neighbors' land
 Line between drilling for production and negligently drilling to waste
 The neighboring use had to be negligent and because they are involved in extracting the oil –
they have a duty of ordinary care
o Contrast Fox and Natural Resources
 Wild animals: no claim to something out in the wild until you get your hands around it and achieve
complete control (wild animals on property that is yours – lured onto another’s property and another
kills them  you have lost nothing)
 Oil and gas: if your neighbor draws the oil and gas across to theirs and it is released there in a way that
it is wasteful (drains off and doesn’t get used) and the reason is because the neighboring operation is
negligence  neighbor is liable
 Not the typical law of capture because liable if there is negligence
o Surface Water v. Oil/Gas v. Land: salient and touch multiple tracts  law of sharing
 Water: (anti-waste system) salient and is in contact with multiple tracts; people who have a right to use
water don’t have a right to waste water
 prior appropriation: water that is wasted does not create a right to use it in the future – only a
water right if it is put to a beneficial use
 riparian: a wasteful use is not a beneficial use – someone's reasonable use will trump your
wasteful use
 Difference: NO liability: just no water right
 Oil and Gas: same no waste principle
 Difference to water: is the liability
o Why?  underground resources are exhaustible in a way that is not true about surface
water
 Quite a different harm to take something out permanently vs. temporary
removal
 Social interest in not having the resource wasted and the liability to the
neighbor is a privatized fine  the neighbor who uses the resource
would have no interest at all if it was put to a beneficial use (the waste
is the ONLY reason they have a claim in liability)
 Both rivalrous but water will be annually renewed to some extent based on
rainfall
 Land: one of the rights of ownership is the right to destroy the resource – and absent any environmental
or zoning statute that prevents it, you can, as an owner, burn or tear down your property
Public Lands
- Categories of Federal/Public Lands
 o National Forest System: 190 million acres
o Bureau of Land Management: all permanently held federal land that isn’t dedicated to any other federal purpose:
250 million acres
o National Parks System
o Fish and Wildlife Refugees
- History of the Private Property System (2/3 of the US)
o National Government was a property creating machine in the 19th century
o In the course of that century, people could acquire lands in the hands of the federal or state government in a
diversity of ways (buy it, settle it (homestead act), planting trees or cutting trees, irrigating or draining, acquire
for the purpose of mining or extracting minerals/timber)
o Private property system was created through these laws
- History of the Public Property System (1/3 of the US)
o Later decades of the 19th century: social and political movement away from the goal of wholesale privatization
and in favor of permanent public management of at least some of the lands still held by national and state
governments
 1872: Yellowstone National Park: first time of federal policy that something was done with land besides
creating private property
 1891: National Forest System created
 1872-1934: privatization and reservation of federal land coexisted
 1934: federal government pulled all land that remained in federal hands out of the privatization system
(Taylor Grazing Act)
 1934 : federal land is not open to privatization except in Alaska (until 1980s)
 One exception: 1872 Mining Act: federal lands can be privatized through mining:
o authorizes people who have made genuine discovers of valuable minerals to attest that
they have put money into improving it and spent money to get minerals out of the
ground
o after a few years a small plot of federal land can become private property)
 Wilderness Act of 1964: anti-development statute and shows economic value in preserving the land
 110 million acres are under the preservation of the Wilderness Act
 reversal of course from land privatization that dominated the first century of its operation
- Rationale of this Public Land System
o General
 All are regulated by statutes
 Structure of decision-making authority is the opposite of privatized
o Not close to the ground and concentrated in one individual
 Landscape scale and habitat management
o Privatization doesn’t allow for this
 Regional Zoning
 Motorized recreation
 Watershed preservation
 Wilderness recreation
 Timber use
 Regulated commons system
 Open to any member of the public to enter (most of it) for a small fee
 But once you are there, they are not a commons in the maximalist sense – you can only use
them for a very certain use
 Ex: hiking commons, rafting commons, etc.
  Economic extraction is very highly regulated
 Government resource management with government commons
 Not really an economic commons
 Avoids the tragedy of the commons: overuse and overextraction
o Neither of those are a part of the common right here
o Political Dispute
 Public Lands always create issues over the use of the land: hunting v. not hunting; timbering v.
wilderness recreation
 No matter the decision – someone is going to feel excluded.
 National government is making decisions on behalf of other constituents
 Private ownership avoids certain conflicts by deciding the power to make the decision, but public
ownership leaves the door open and the conflicts are explicit.
- What powers does the federal government have
o Constitutional
 Everything the federal government does, is an enumerated power
 2 Constitutional Clauses that concern the public land
 Enclave Clause: Article I Sec. 8: “To exercise exclusive Legislation in all Cases whatsoever,
over such District (not exceeding ten Miles square) as may, by Cession of particular States, and
the acceptance of Congress, become the Seat of the Government of the US, and to exercise like
Authority over all Places purchased by the Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings.”
 Property Clause: Article IV Sec. 3 Clause 2: “The Congress shall have power to dispose of and
make all needful rules and regulations respecting the territory or other property belonging to the
US; and nothing in this Constitution shall be so construed as to prejudice any claims of the US,
or of any particular state.”
o The Property Clause as black letter good law authorizes the whole federal land
management system we are talking about
o Dissenting view  it is a Privatization clause: Congress can turn land it is holding into
private property
 Combination (Purdy): Federal government can either (1) sell it off or (2) if it
wants it permanently it can buy it from the state and hold it permanently.
 Federal government has to sell the land off to private owners or give it
to the state and buy it back  argument that what the federal
government is doing is too responsive to conservation groups and not
giving enough to the State.
o Statute
 American Antiquities Act of 1906
 Section 2: gives the President the power to proclaim historic landmarks, historic structures, and
other objects of historic or scientific interest that are situated upon the lands owned or
controlled by the Government of the United States to be national monuments.”
o Vast expansion and especially salient because for the last 50 years – only one statute by
which a president can unilaterally classify public lands.
o Most depend on congressional acts – created by an act of Congress
o Presidents can no longer undeclare national forests
o ALL political pressure to reclassify public land under the President is through the
American Antiquities Act
  Burial ground or agent village- those can be protected – the term “object of scientific interest”
has been expanded to include the environment (expanded in the Obama Declaration) to declare
national monuments and public lands/public waters
o George W. Bush – pure ecological national monument
Takings Power
- Basics
o Views Differ.
 Takings clause is a limitation
 Takings clause is merely a requirement for compensation
o Power of Eminent Domain (The Takings Power)
 Implied or inherent power just by virtue of being a sovereign government, then it can exercise the power
of eminent domain – and existence by implication of the fact that there is a limitation under the 5A
 The power to eliminate a property right and take it for the government or transfer it to another owner.
 Not an explicit grant of authority but the basis of The Taking Jurisprudence is in 5A (anti-tyranny
provisions: shields against unjust abuses of power against individuals)
 Strange that there is a limit on a power that is not expressly granted.
 5A: “Nor shall private property be taken for public use, without just compensation.”

Private Property Public Use (Kelo) Taken Just Compensation

How do you characterize the “Public Purpose”
property that is taken? RBR (Could it change? – look
- Denominator problem: to dissents)
how much value got - Makes this
taken virtually
untouchable
Whether the property was taken? Fair market value w/ no
Eminent Domain: Obvious regard to effect (either +
Regulatory Taking: or -)
- (a) What did the government do?
o (i) Did the government prevent a noxious use/or
prevent harm?
o (ii) average reciprocity of advantage – everyone
who is within the zone of regulation receives the
benefit as well as bears the burden
a

Constitutional Question: Can the Land be Taken (Eminent Domain)

- Public Use (RBR)
o Are property rights in any way constitutionally special?
 Are takings an issue of policy making or an issue so special that the Court should step in  RBR
basically makes them legislative decisions untouchable
 Kelo
o Stevens (Majority)  YES
 Court has said no so far (but it should not be this way)
 Major deference to legislature which is going to hurt and target people more
economically vulnerable (Stevens)
o O’Connor and Thomas (Dissents)  NO
 O’Connor: doing social harm v. not doing economic good
 Thomas: “public use” means public ownership or use by the public
- How to characterize the property that is taken? (Constitutional limit on government when using ED)
o Public use: public purpose (RBR)  purpose that has been established in a procedurally regular way by a level
of government with the eminent domain power (states have it as an inherent power in sovereignty and can give
to city)
o Kelo v. City of New London
 Facts: New London was revamping and wanted to build parks and developments; some people sold their
land to the city but others wanted to keep their homes and fought the condemnation and attempt to
exercise the eminent domain
  Cases Involved
 Berman v. Parker: the area must be planned as a whole for the plan to be successful – not a
piecemeal basis, lot by lot, building by building.
o Purpose: revamp a deteriorating neighborhood
 Hawaii Housing Authority v. Midkiff: Hawaii government took fee title from lessors and
transferred to lessees
o Purpose: eliminate the land oligopoly
 Holding: Stevens: (deference)
 deference to the decision-makers (RBR) – if they bother to articulate a legitimate purpose then
it is going to be valid
o this is a question up to political officials and public goal setting and regulation  we
don’t need to draw a line because the compensation is the protection
 5A is merely a compensation requirement but not an independent clamp down on the power to
regulate.
 Only be struck down for those who say “we are transferring this to another person because we
like them better”
 Concurrence: Kennedy: (no deference)
 RBR without deference: need only be a conceivable purpose – if there is a purpose that the
legislature could have had that the act is serving then it is valid
 Dissent: O’Connor: (doing harm v. failing to do good)
 the prior owner was sitting their underperforming and that seems like a pretty harsh basis to take
someone’s property from them
 take property because doing a public harm v. take property because it is failing to perform at an
optimum level – how she distinguishes Berman and Midkiff
o Berman: neighborhood deteriorating that 63% beyond repair
 Note: she contradicts herself here: she is comparing this one house to the
neighborhood in D.C. – but in D.C. the shop was nice as well and still
demolished.
o Midkiff: Oahu: 22 landowners held 72.5% of fee simple land
 Dissent: Thomas
 “Public Use” should be taken to mean it is being used for the public
o Purdy: Counter-Originalist argument to Thomas’s opinion  term public in the
Constitution is not associated with the public at large – it is synonymous with the word
governmental
Compensatory Question: Does the regulation create a constructive taking? (Regulatory Taking)
- Is it a regulatory taking?
o 2 Prongs
 Ad Hoc Test (Penn Central)
 In assessing whether a taking has taken place
o (1) extended diminution in value (Penn Coal)
 General conceptual issue: denominator problem
 The numerator is how much has been taken; so how capacious is the
denominator?
 In Penn Central, P wants to argue all possible development rights have
been taken; gov wants to say look at it in context of the entire parcel –
Penn Central can still conduct everything it does so it is the (Taking of
Air Rights/Air Rights + Railroad Ability + Shops)
 Friendly to government arguments of reciprocity of advantage
  Reciprocity of advantage: whether the land use regulation is more like
making someone dedicate their land for a park or land zoning
o Also that the party restricted gets something back:
compensation built into the structure of the regulation
o (2) especially considering distinct investment-backed expectations
 Similar denominator problem: how broad will the Court be in defining
reasonable investment-backed expectations? Picture of how much has been
taken depends on what court says was already there
 What were you already getting a revenue flow from rather than what were you
going to try to do
o (3) What was the character of the government action (likely most important factor for
determining takings)
 The design of the policy: does it regulate every parcel of land but just happens
to fall more heavily on some than others. Or does it, by design, target a
relatively small number of regulated entities?
 Targeting v. general application is the paradigm for this branch (especially
where costs are distributed unevenly)
 Per se Taking
 ermitted physical occupation that undermines owners right to exclude
 Owner is denied all economically viable or beneficial use
Ad Hoc Taking
- Taken
o Whether the property been taken?
 Eminent Domain Taking  nonissue because it is obvious
 Regulatory Taking  Constructive Taking: Owner is still holder of title
 Has to be the case that ownership of that property (the property right) is not just an abstract title but
a right to use that property in a certain way
 Pennsylvania Coal Co v. Mahon
o Facts: Surface property given to P for good price because the Coal Co. retained the rights to
the ground below; State of PA enacts the Kohler Act that coal could not be mined where
there is subsidence
o Holding: it is a taking
o Rationale:
 (1) How to characterize the land
Brandeis Holmes  Denominator problem: how much you have lost (extent to diminution)
depends on how much you have altogether
Regulation can Regulation so
o Holmes: owning coal is not an abstract title but a practical title of
affect property
value without
limiting that it
equates to a
having the power to make coal profitable – w/o mining there is no
compensation taking profit and ownership right has been eliminated
o Brandeis Dissent: coal in place is land – appears to argue that we
should consider the tract of land from the surface to the sky but that
doesn’t seem right
 (2) Whether the property was taken
 (a) What did the government do?
o Holmes: you transferred the property from A (coal) to B (P)
o Brandeis: like zoning – nuisance adjudication and a fair adjustment
of property rights in the interest of a public value rather than
narrow transfer from one to another.
  Penn Central Transportation Co. v. NYC (all weight on government interest)
o Facts: The NYC Landmarks Preservation Committee designated the Grand Central
Terminal (which is owned by Penn Central) as a “landmark: and the city tax block it
occupies a “landmark site” – 400 parcels out of 1 million parcels. Once the site is
designated a landmark there is a duty upon the owner to keep the exterior in good repair and
the commission must approve any proposal to alter the exterior architecture or construct any
exterior improvement.
 Character of Gov’t Action
 Brennan majority: there is a plan so it is okay: where there is an ordinary,
procedural kind of land use regulation and you know the criteria  give it
presumption of average reciprocal benefit
 Rehnquist dissent: 400 properties over 1,000,000 seems like picking out a
small number and putting a lot of responsibility
 Extent of Diminution in Value
 Friendly to government arguments of reciprocity of advantage
o Reciprocity of advantage: whether the land use regulation is more
like making someone dedicate their land for a park or land zoning
 Also that the party restricted gets something back:
compensation built into the structure of the regulation
 Denominator application
o How much did they lose all things considered?
 Value is a ton
o What did they lost relative to baseline operation (running railroad
with nothing on top of it) before the decision?
 Value is not much -- Operators can still make a reasonable
return – not required to count the value of the anticipated
return of development were it not for the return
 Distinct investment-backed expectations
 What were you already getting a revenue flow from rather than what were
you going to try to do
Per Se Takings
- Regulations of a certain kind, by their nature constitute takings and require compensation
o Continuous physical invasion that undermines the fundamental right to exclude ( Loretto) (Cedar Point)
 Rule: A government regulation granting a right to invade another’s physical property constitutes a per
se physical taking w/ 3 limitations
 (1) not all invasions are occupations – trespass maybe even a series of trespasses wouldn’t be
the same thing (what is authorized is consistent with current pattern of use)
o Line between trespass and an invasion of occupation is not a clear one and will require
fact intensive judgment
 (2) reciprocity of advantage: access to private property may be mandated under a regulatory
scheme from which the property owner benefits and is burdened by
o Counterexamples: (1) is it a sufficient benefit to a meat packer to be able to sell food
that are stamped USDA  then USDA has to be able to access but if not  regulatory
scheme is a taking
 (3) there may be a variety of background principles that allow access even though in the
absence of those principles, the occupation would rise to a Cedar Point taking
o Example Public Trust Doctrine
  Premise in NJ: no owner in the state ever had the right to exclude people from
beachfront property so – public access to private beaches is not a taking under
the logic of Cedar Point because the right was never there
o Property owner denied all economically viable or beneficial use (Lucas)
 Rule: A regulation that denies all economically viable or beneficial use of property is a taking per se
(not subject to denominator calculator) and requires compensation (Lucas)
 Exception (Lucas)
 If the regulation prevents something that was never part of your property rights in the first
place, because they were traditionally prevented under nuisance, then no compensation because
no property rights have been taken
o To prove the Act is taking nothing, “South Caroline must identify background
principles of nuisance and property law that prohibits uses he now intends’ – otherwise
it is a taking,
 Nuisance is tricky and loose but the Court is the one determining this – and they will not be
trying to manipulate this in one direction.
- Cases
o Cedar Point Nursery v. Hassid (2021)
 CA state statute that permits labor organizers access to the private property for four 30-day periods per
year upon providing proper notice
 Holding: The regulation by virtue of the scope of access that it granted to organizers is a per se taking
due to the physical occupation it grants.
 3 limitations
o (1) not all invasions are occupations – trespass maybe even a series of trespasses
wouldn’t be the same thing (what is authorized is consistent with current pattern of use)
 Line between trespass and an invasion of occupation is not a clear one and will
require fact intensive judgment
 Carving out labor union from state and regulatory regimes
o (2) reciprocity of advantage: access to private property may be mandated under a
regulatory scheme from which the property owner benefits and is burdened by
 Counterexamples: (1) is it a sufficient benefit to a meat packer to be able to sell
food that are stamped USDA  then USDA has to be able to access but if not
 regulatory scheme is a taking
 CA state statute is passed under the idea that it is good for both employers and
employees  good for employers to have people involved BUT Court doesn’t
accept that here
o (3) there may be a variety of background principles that allow access even though in the
absence of those principles, the occupation would rise to cedar point
 Similar to exception in Lucas – it is not a taking if the government authorizes a
third party to come on the property who would have had a right to be there
anyway
 Blocks the possibility that they make a per se taking out of public trust
doctrine
 Example Beaches Cases
 Premise in NJ: no owner in the state ever had the right to exclude
people from beachfront property so – public access to private beaches
is not a taking under the logic of Cedar Point is that the right was never
there
 o What no one foresaw in Lucas was that background principles
turn out to be susceptible to creative lawyering
o Public trust doctrine has become more relevant post-Lucas –
developers were prevented from the uses of what Lucas was
doing and the public trust doctrine.
 Argument 1: This is like Pruneyard – they can continue to operate their business in substantially the
same way then the permission to enter cannot be a taking under Ad Hoc
 Argument 2: Unlike Pruneyard – Cedar Point Nursery is not open to the public
 Purdy: this is a shift from Pruneyard – Pruneyard assumed that nonpermanent invasions were to be
assessed under the Ad Hoc test – some see this as a smaller imposition while others see it as a bigger
imposition
 This case catapults itself out of Ad Hoc test and acts as an extension of Loretto and a per se taking
 Brings over the rationale from Loretto – physical occupation is a taking
 How important is the right of owners to maintain control of activity on their property v. how important
is the power of legislatures/regulators or the responsibilities of courts to adjust owners right to
accommodate competing interests
 Where ownership rights fall within the current scheme
o Loretto v. Teleprompter (1982)
 Owners of rental properties were required to have wires and cable box attached to the outside of their
property
 Rule: A permanent physical invasion of property mandated by regulation would be a taking per se even
if it were of economic trivial impact
 Why is a physical invasion per se
 Cuts across all the strands of ownership: (1) denies the power to exclude and denies the power
to use the property as to the portion of the property occupied and (2) burdens the transferability
o Pruneyard Shopping Center v. Robins (1980) (≠ permanent physical invasion)
 CA state-mandated access to third-parties to private properties – students were passing around a petition
for a foreign policy argument and wanted the signatures of shoppers – under federal constitutional
doctrine, there is no first amendment right to engage in advocacy on private property but under the CA
constitution, you can go where the people are (you cannot be excluded)
 Holding: No taking – applied the Ad Hoc Balancing Test
 Rationale: Can he go on running a profitable shopping center?
 (1) distributional fairness of policy but here it is not doing it in a way that makes the owner bear
the full burden of a corresponding public benefit (i.e. dedicating someone’s private land to be a
public park without labeling it as one and compensating it) and does not intrude on the
expectations of a mall operator
 Modern: open to the public  Ad Hoc and private  per se OR say Cedar Point reigns
o Lucas v. South Carolina Coastal Council (Deprivation of All Economically Viable Use)
 Facts: Lucas purchased two tracts of land but was not in any substantive way regulated at the time of
purchase; but then a coastal zone was extended to his development so he could not build
 Rule:
 SC Supreme Court: If it is a harmful use  no compensation necessary
 Scalia: That is not the standard
o (1) Conceptual: the idea of a harmful use is not self-defining  environmental
regulation of this kind brings this up
 Noxious use is too subjective to be an anchor
o (2) Institutional: clear why SC legislature and its regulatory bodies would be motivated
to say they are preventing a public harm because then they can do it for free so
  Key actors in the regulatory process who are going to be motivated to stretch
the nuisance
o We need a clear limit – this is an update of Holmes saying that if regulation can go on
without limitation then human nature will limit property altogether
 Causing a nuisance is the paradigm of what a property owner may not due
under their original property – no one ever acquires to the right to commit a
nuisance – preventing a nuisance is the paradigm of what a state can do.
 (1) a regulatory action is a taking per se where it results in a wipe out of
economic value (2) except where the regulation acts to prevent an action that
the owner did not have a right to.
 Kennedy Concurrence: nuisance is too narrow
 Dissent: you said you wanted a rule and you picked nuisance – the most context dependent
doctrine
- Fair Compensation
o What is the fair market value?
 The value of the property had it been sold
 Bureaucratic assessment: generally binding and set the price level that the owner has to accept
 (1) excludes the effect on the value of the property of the taking itself
o Ex: the value of the property is destroyed – set to what the property would have
received before the dam
o Ex: the property is taken to build a highway so property in the vicinity of the highway is
much more valuable than it was prior to building – that boost in the value that follows
on the development that the taking is part of won’t calculate that into the fair market
value
 (2) excludes relocation costs, loss of good will (earn reputation elsewhere)
 Issue: the sentimental value, the neighborhood connections, the prospect of future development – leads
to systematic under compensation