Capture Dan Feldman: Property Mortal wounding + pursuit OR trap/ensnare = possession (first in time establishes a property interest) o Policy:

: promotes utility & efficiency Not just wild animals fugitive unclaimed resources (water, gas, oil, etc.) Custom: trade usage necessary where all that is practicable is done o Custom is an exception to the general rule must be reasonable o Counter: dont consider externalities (other industries) o Utilitarian, social utility, balancing test public interest in whaling industry/fox killing Property owner has right to lawful use of his property for profit without malicious interference of others Ratione soli constructive possession of animal on property; discourages trespass, cant prevent fair competition Commons & Economics Externalities any consequence, positive (benefit) or negative (cost), that is not considered in the decision making process of the actor Tragedy of the commons (Demsetz) self-interested actors cause over-consumption in communal property, which is inefficient because of lack of agreement/consensus and scarcity/limited o Privatization internalization of externalities Free Riders person who does not invest when everyone else does, but still receives the benefit of the others investment Holdout person who refuses to extract the benefit of which other members are taking advantage and thus prevents the transaction from occurring; object to get a supracompetitive price by holding out Coase Theorem in a competitive market with well-defined rights, there are no transaction costs, thus efficient outcome because market will correct itself. Anti-Commons leads to under-consumption, where there are multiple rights to exclude others (over-privatization, ex: 4 people own different parts of rental property) Theories Stossel private property rarely gets abused or degraded (private better than public) Blackstone bodily labor + commons = exclusive property o Orig. no permanent property (must maintain use); but as mankind increased, need for perm. property Locke input of own labor grants exclusivity of property o Spoilage = limit on taking for oneself; can only take what you can use Bentham without legal creation of property, there is no such thing o Property = creation of law o Prevents tragedy of the commons privatization/allocation = efficient use of resources (stabilization) Hegel personhood; my home is my castle; family heirloom (possession = extension of own will, thus body) Lessig law adjusts to technologies of the time; private interests should not defeat a public gain o Intellectual property although file sharing is a recognized public gain, if the law doesnt protect IP rights, the law will incidentally discourage innovation, which will ultimately result in public loss Coase Theorem if there are no transaction costs (time, $, energy to get people together to agree upon something), parties will bargain to achieve the most efficient allocation of property right o Always trans. costs; higher when more parties involved, thus initial allocation of prop. rights = essential Finders Title MLA Bailment delivery of personal property by one person (bailor) to another (bailee) o Change in possession, but not title o Voluntary bailment = obligation to take reasonable care of property o Involuntary bailment when a person accidentally, but without negligence, leaves personal property in anothers possession Non-negligent standard of care Trover damages; value at time of conversion, not current market value o Destruction of evidence presume highest possible value o Constructive Trust trespasser/thief profit (matter of equity; one-way ratchet) o Winkfield rule T.O. cannot double recover; if finder sells only collect $ from finder, not current poss. Replevin repossession of wrongfully taken personal property

Finders Title good against the whole world but the true owner (superior right to subsequent finder); not absolute ownership. Constructive Ownership objects attached to or under land, regardless of existence o Where owner was (1) never in possession of the land and (2) had no knowledge of the objects existence constructive ownership (Hannah v. Peel) o Rule of embedment ownership of property carries with it everything attached to it & under it (fixture), and in absence of better title elsewhere, right to possess it as well o Title not extended to trespasser o Employer entitled to chattel found by employee [when working within the scope of employment] o If unattached, not necessarily property of land owner; presumption that possessor of land has best title o Treasure trove does not exist in American law, where hidden things found king Mislaid true owner intentional places property in a certain location and then forgets to take it with them when they leave. o Cannot be acquired by a finder, instead the landowner serves as a bailee for T.O. Lost property separated from T.O. without T.O.s knowledge. o Title good against whole world except T.O., prior finders, and owner of land where an objective is found Abandoned T.O. voluntarily gives up any claim of ownership (clean title, not finders) o Finder acquires title, however trespassers are not likely to be granted title. Rationales for protecting prior possession (especially where T.O. unknown) o Statutes incentivize finder to make reasonable efforts to reunite chattel with T.O. b/c if unsuccessful and statutory period runs out, finders title becomes clear title (T.O. cannot seek trover/replevin) o Prevents economic waste (can use/trade openly) + greater opportunity for T.O. to recover Gifts IDA 3 requirements for a legally recognized gift: (1) intent, (2) delivery, (3) acceptance Intent manifestation of intent by written or oral evidence (question of fact) Delivery transfer of possession (question of law) o Manual (actual, physical) delivery o Constructive (key; access to gift) where manual is impractical b/c of size or inaccessibility o Symbolic (written instrument; letter) where manual is impractical Can be a conveyance of a present legal interest (future interest), promise to give something in the future o Std. that courts look to in determining acceptable delivery is the best delivery possible Acceptance Presumed, so long as donee doesnt expressly refuse. o Where a gift has negative utility, stricter std. for acceptance (ex: burden of payment) Promises of future gifts enforceable (I give you my watch vs. I will give you my watch) Inter Vivos gift made within the lifetime of the donor o Intent to make gift upon death if future interest conveyed, not if promise to give Causa Mortis gift made in expectation of donors impending death; substitute for will o If donor survives, gift = revoked o Problem: undermines statute of wills Intellectual Property PCT Patents exclusive right to make, use, and sell novel and useful inventions, including methods of production and configurations of articles -ex: elevator, airplane, medical devices U.S. Const. o Policy: Encourages the public disclosure and use of new and useful innovations o Apply for federal patent grant (time-consuming, expensive) o Patent registration required, but unpatented inventions may be protected as trade secrets o Requirements: Novelty, non-obviousness, and utility o Term of right = 20 years o Defenses infringers may challenge the validity of the patent grant on the basis of, e.g., prior inventions and knowledge (often invalidated) Copyrights exclusive right to reproduce, perform, and adapt original works of literary and artistic expression ex: books, music, movies, and software. U.S. Const. o Policy: Encourages new artistic production o Automatically obtained upon fixation of expression (registration = inexpensive) o Statutory damages up to $30K per work ($150K if willful) and attorneys fees; evidentiary presumptions

o Requirement: Originality o Term of right = approx. 100 years o Defenses fair use (which may apply to cases of educational and non-commercial use) Trademarks exclusive right to prevent unfair competition by means of the reproduction of source-identifying symbols and words ex: McDonalds, Apple, Tiffany Common Law o Test for TM infringement: (1) P owns valid, protectable work Fair Use Defenses: abandonment, generic, laches (unreasonable delay), 1st Amend. Rights (2) D used mark w/o consent Non-commercial use req. consent (ex: education) (3) Likely to cause consumer confusion Nominative Fair Use Doctrine: only applicable when D is explicitly using Ps mark o (1) Readily Identifiable use of marks Famous and Distinctive Trademark dilution even if no customer confusion, symbol/phrase = protected if F&D o (2) Suggestion of sponsorship sought/intent to associate o Policy: Protects consumers from deception and promotes investments in commercial goodwill o Automatic upon use in commerce (state and federal registration desirable) o Priority of commercial use rights nationwide; greater remedies against counterfeits o Requirement: Use in commerce o Term of right = perpetual, as long as the trademark is used o RoL: Copy/imitation = permissible b/c it promotes economic efficiency, so long as no misappropriation or misrepresentation (saying its something its not). Quasi-Property news not protected against public, only competitors (unfair competition) o Where one news-reporting agency is copying the product of another news-reporting agency without attribution of the source of the producer = misappropriation o Utilitarian if reaping the benefit where it hasnt sewn, news-gathers are disincentivized, thus there wouldnt be any news Right of Publicity prohibits the commercial use of the identity of a recognized individual (varies in different states as to scope, duration, and purpose of the right) Property of ones own body: o Ownership of ones own body, however Courts restrict bundle of rights because surgically removed human issue = abandoned, thus T.O. would be indifferent to the future disposition of the abandoned property. If people could sell their organs, innocent downstream users could theoretically be liable for conversion (trover/replevin) o As a matter of policy, it would be detrimental to doctors research/medical progress maximizing social utility. Need to have a commons of human tissue to most efficiently exploit the raw materials. Design Patents; Privacy Rights; Virtual/Digital Property Interests; Fashion Designs (largely unprotected by U.S. copyright law design property, copy/imitation permitted monopoly not allowed) o Virtual Property 3 part test: Interest capable of precise definition Capable of exclusive possession or control Supposed owner must have established legitimate claim to exclusivity *Must be actual damage for injunction, however potential may be sufficient where the potential would be a problem if more people did it/in the aggregate. Real Property Trespass right to include and exclude (necessary condition of transferability) o Policy to promote societys confidence in the courts, and not result to self-help Punitive damages where intentional trespass o Right to real property absolute (bundle of rights); cannot use property to injury rights of others; private/public necessity may justify entry upon the lands of others o Coase Theorem no transaction costs A pays B to cross land, etc., however there are always trans. costs o Pigouvian tax tax on a market activity that generates negative externalities (ex: harm done by pollution) Maximizes social utility because the tax is set so the party who value the right more pays equal to the benefit received by activity causing the negative externality

However, social utility is plagued by the endowment effect because acrimony (feeling of bitterness) is created once people establish their property right -willingness to accept compensation > willingness to pay Adverse Possession point where a trespasser becomes a possessor - NACHOE o Policy/Theories: (1) Earning Theory Social utility benefit to trespasser > loss to owner; (2) Sleeping Theory Prevents owner from negligently sleeping on rights; (3) Administrative Theory removes uncertainty by stabilizing ownership rights Personhood (Hegel) becomes part of identity o Action to quiet title statute of limitations set period of time, for regulatory purposes, which helps parties & courts (evidence tends to disappear) o Test: Actual entry giving exclusive possession Actual possession = physically on the land Exclusive possession = not shared with either the true owner or the general public Open and notorious (reasonable person standard) Visible and obvious that a reasonable owner would receive notice of an adverse title claim (ex: living on land, improvements building fence, cultivating crops; wild land = hunting, sign of no trespass, harvesting timber) Hostile under a claim of right (some states also require color of title) Claim of Right looks to the state-of-mind o Objective standard (Maj. English) state of mind = irrelevant o Good Faith standard (American) intent of good faith, problem of lying o Aggressive trespass rewards/encourages dishonest & ill-willed Continuous for the statutory period (as used customarily) Tacking successive periods of adv. poss. by persons in privity can be combined to satisfy the statutory duration requirement o Privity: deed, voluntary transfer, heir, will, K; not as a trespasser/squatter o If AP voluntarily left, no tacking. If forced out, some courts only allow AP to tack oneself, while others allow AP to tack with others to punish negligent Owner o Color of Title = [defective] deed get more (full of deed) w/ AP Doctrine of Constructive Adverse Possession exception to the requirement that claimant have actual possession of all of the land in dispute. If the adverse possessor has actual possession of a smaller part of the land mentioned in the color of title, they are said to be in constructive possession of the entire land parcel. AP must have a good faith belief that the color of title is valid. 2 Rules: Entry against each owner only get lot with actual entry If another person in possession on land, AP limited to actual possession o If both titles are defective, entitled only to actually possessed land o Boundary Disputes owner must have notice, actual or constructive (if not minor) Open & Notorious Connecticut doctrine (maj.) [boundary dispute] state of mind = irrelevant Maine doctrine (min.) requires aggressive trespassing, notice required where not obvious (ex: 15 encroachment = minor Manillo v. Gorski) Stricter on intentional trespassers with respect to whether its minor Coase Theorem 2 parties = low transaction costs value-maximizing use of property will be achieved Present Possessory Estates Intestate Succession: person died without a will IACE o Heirs people who survive decedent & inherit (not heir until death) Issue (per stirpes) children, grandchildren, etc Per Stirpes by the roots (ex: O has 2 children (A & B), and each A & B have 2 children, and A dies As children split As 50% share) Ancestors parents (that survive) Collaterals brother, sister, cousin Escheat no heirs land goes to the state Seisin tenants responsible for feudal services; livery of seisin ceremony where tenant offers gift/dirt to lord

Leasehold: o Term of years estate starting & ending on fixed calendar dates o Periodic tenancy month-to-month; year-to-year o Tenancy at will unilaterally terminable Fee Simple Absolute may endure forever; to A; to A and his heirs Life Estate for the life of a person; to A for life o A can transfer the estate to B, but Bs interest terminates at As death o Problems: (1) restraint on alienation blocks transfer of land (2) waste Term of Years for some period of time measured by the calendar; for 10 years, starting Jan. 1, 2011 Fee Tail lineal descendants/bloodline estate (issue only); to A and the heirs of his body; abandoned Waste: o Affirmative waste voluntary acts that reduce the value of the property o Permissive waste inaction/failure to exercise reasonable care to protect the estate Defeasible estates o Defeasible fee simple may last forever or may come to an end upon the happen of an event in the future, prior to its natural endpoint o Fee simple determinable will terminate automatically when a stated event happens, and revert to the grantor (PoR); so long as while used for during the continuance of until the Words before the comma o Fee simple subject to condition subsequent does not automatically terminate but may be cut short or divested at the transferors election when a stated condition happens (RoE/power of termination); provided however but if on condition that grantor has right of entry Words after the comma o Fee simple subject to executory limitation F.I. in 3rd parties; vests too early or too late (ex: funeral); to B, and if X, then to C who has a right of entry or termination Absolute restraint on alienation of a fee simple is null and void. to A, but if A ever attempts to sell the land, then to B. A has FSA, B has no interest. o Partial restraints on alienation of a fee simple may be allowed if reasonable in nature, purpose, and duration. o Restraints on alienation make property (1) unmarketable, (2) dont allow an owner to benefit from proceeds of sale, (3) discourages improvements, and (4) prevents creditors from reaching the property. Future Interests gives legal right to owner, not mere expectation/promise Interests retained by Transferor: o Reversion follows LE, ToY, FT, VR StO, CR, EI Os reversion passes under his will or to his heirs o Possibility of Review follows FSD so long as o Right of Entry (power of termination) follows FSSCS and ifO has the right to re-enter and retake the premises Interests created in a Transferee: o Vested Remainder (1) given to an ascertained person and (2) not subject to a condition precedent (other than the natural termination of the preceding estates) O to A for life, then to B Vested if one member of the class is ascertained and there is no cond. precedent Vested Remainder Subject to Open (vested subject to partial divestment) if later born children are entitled to share in the gift. Vested Remainder Subject to Executory Limitation to A for life, then to B, but if C does X, then to C Bs interest o Executory Interest to A for life, then to B, but if B does not survive A, to C C has a shifting executory interest o Contingent Remainder (1) given to an unascertained person or (2) it is made contingent upon some event occurring other than the natural termination of the preceding estates [condition precedent]; ready to become possessory upon expiration of the preceding estate; to A for life, then to Cs children & C has no child Doctrine of Merger If the life estate and the next vested estate in fee simple com into the hands of the same person, the less estate is merged into the larger Minority Rules:

Rule of Destructibility of Contingent Remainders If the remainder is still subject to a condition precedent when the preceding estate terminates, it is wiped out and right of possession moves to the next vested interest. o Rule of Shelleys Case If one instrument creates a freehold in real property and a remainder in the freeholders heirs, and the freehold estate and the remainder are both equitable or both legal, then the remainder becomes a remainder in the freeholder. o Doctrine of Worthier Title Where there is an inter vivos conveyance of land by a grantor to a person, with a limitation over the grantors own heirs either by way of remainder or executory interest, no future interest in the heirs is created; rather, a reversion by the grantor. Rule Against Perpetuities Only for CR, EI, VR StO No interest is good unless it must vest, if at all, within 21 years of some life in being at the time of the creation of the interest. (1) Ascertain measuring or validating lives [in being] (2) Birth everyone has a child (3) Death everyone alive at the time of conveyance dies, which begins the RAP clock o After-born children live (4) Count forward 21 years (5) Look for remote vesting Concurrent Interests consecutive rights result in possessory and future interests, not co-ownership Tenants in Common separate but undivided interests in the property (unity of possession); to A & B; no survivor rights (future interests = alienable) o Unilaterally terminable conveyance; no notice required Joint Tenants each owns undivided whole of the property; to A & B jointly for their lives (to A & B jointly = ambiguous TiC; get over it w/ with right of survivorship or as joint tenancy); right of survivorship o Can convey PPI w/o co-joint tenants consent, unless sublease grants exclusive right to land To have ouster, co-tenant must physically, or by letter, be denied access; must have right to equal usage o Unilaterally severable self-conveyance (no need for straw-man; no notice req.) TiC o If co-tenant takes out a mortgage: Title theory mortgage automatically severs joint tenancy Lien theory extinguished with death doesnt effect right of survivorship Modern view mortgage survives death & co-joint tenant is responsible o 4 Unities essential to a JT: TTIP Time acquired (or vested) at the same time Title title acquired by same instrument (or by a joint adverse possession) Cannot arise by intestate succession Interest equal undivided shares and identical interests measured by duration Modern rule: need not be equal shares Possession right of possession of the whole Tenancy by the Entirety 4 entities + marriage; right of survivorship; not unilaterally severable, but be done together, divorce terminates TbE; must have express declaration as TbE, as a JT by the entirety o Debt by 1 reachable by creditors (also, education, emergency funds, home property) Policy: protect the family unit Remedies for Problems arising in Concurrent interests: o Partition (available to TiC and JT) - unlike suit for contribution, accounts for all repairs & improvements Partition in kind divide land physically (Default) Partition by sale division of proceeds according to interests Where (1) in kind is impractical; and (2) in the best interest of owners Partition in time split time, requires court to oversee so unfavored (sentimental value) o Owelty compensation from one co-tenant to the other(s), substitute for partition o Ouster If one tenant wrongfully excludes another co-tenant from possession of the whole, or any part of the whole of the premises, there is an ouster. The ousted co-tenant is entitled to his share of the fair rental value of the property for the time he was wrongfully deprived of the property. Deprived of access (ex: no key) duty to give notice, and when denied, then there has been an ouster o Suit for accounting of rents and profits (ex: one tenant rents to subtenant without compensating co-tenant) o

Suit for contribution (anything necessary) (1) Necessary Repairs; (2) Taxes and Mortgages. (typically no right with improvements) Landlord-Tenant (types of leaseholds) Term of Years lasts for a fixed period of time, with start and end calendar dates specified; can be terminable by either landlord or tenant earlier upon the happening of some event or condition o No notice required because lease terminates at end date specified Period Tenancy some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice; month-to-month o Notice req. 6 months for year-to-year; If less than 1 year, notice of termination must be given equal to the length of the period, but not exceed 6 months Lease terminates at end of following term (ex: Nov 16th notice, Dec. 31 end) If no termination by termination date, renewal of full term (year) Tenancy at Will no fixed period, endures so long as both landlord and tenant desire o Lease terminated if: (1) death of either party; (2) tenant attempts to assign his tenancy; or (3) landlord conveys his interest in the property. o Default (if it doesnt fit the other 2) If ToY doesnt specify end date (ex: until the end of the war) o Notice required under statutory law (varies), not under common law A unilateral power to terminate a lease can be engrafted on a term of years or a periodic tenancy: by O to A for 10 years or until O sooner terminates = ToY determinable Tenancy at Sufferance: Holdovers o When tenant in possession (holds over) after termination of the tenancy. o Landlord can either: (1) Evict as a trespasser and collect damages; or (2) Consent (expression or implied) for the creation of a new tenancy. o Landlord can self-help to evict/re-take possession if: (1) LL has legal right to possession; and (2) uses peaceable means very limited, dont want to promote violence, end up resorts to courts Delivery of Possession o English rule (maj): legal right of possession [K, title] AND actual possession Implied covenant that premises are open for actual possession Duty to evict Policy: LL is in a better position to know if there is a holdover and kick him out + LL has more control & experience o American rule (min): LL only obligated to give legal right of poss. No duty to evict Policy: LL not liable for acts of 3rd parties, thus LL can rent to next tenant without worry. Lease = conveyance (possessory interest in land) + contract (promises, ex: pay rent) o Lease or conveyance? look to: intention of parties, number of restrictions on use, exclusivity of possession, and degree of control retained by granting party License = contractual right to do something on a property Subleases and Assignments Absent an express restriction in the lease, a tenant may freely transfer his leasehold interest, in whole or in part. Assignment or Sublease? Look to parties intent (words) and substance (reversionary int./right of re-entry?) o Substance > Intent (ambiguous) Assignment = if complete transfer of the entire remaining term. o Leaves no interest (ex: reversionary interest) in the grantor or assignor o Terminates Priv. of E, not Priv. of K o Privity of K does not transfer from LL-T LL-SubT, thus LL can sue T for breach of K or SubT for failure to pay rent; If LL sues T, T can sue SubT for breach of K o Privity of Estate transfers from LL-T LL-SubT Sublease = if transferor retains any part of the remaining term. o Grants an interest less than his own, or reserves to himself a reversionary interest o Neither Priv. of E or K are affected Exception: SubT can take on all responsibilities w/ release from LL o Privity of K separate contractual relationship: LL-T & T-SubT (LL-SubT w/ release) o Privity of Estate does not transfer from LL-T LL-SubT Right of LL to withhold consent to an assignment: o Default rule: (no consent clause) T can assign w/o LLs consent o

Majority rule: (consent clause) LL has a right to deny consent w/o commercially reasonable objection Minority rule: (consent clause) LL can only deny consent w/ commercially reasonable object; however, if consent clause indicates LL can withhold consent on arbitrary basis, LL can withhold consent unreasonably Landlord duties; Tenants Rights and Remedies Condition of premises disputes: o T wants to vacate or stay & pay less (or no) rent o T (or invitee) = injured b/c of defective premises Covenant of Quiet Enjoyment and Constructive Eviction Partial eviction: o Constructive eviction where part of the premises is uninhabitable, even though T remains in undisturbed possession of the balance, T is relieved from paying rent as long as they vacate the premises in a reasonable amount of time; T must pay rent + damages if wrong about right to terminate (1) Wrongful act or failure of LL (2) Substantial & material deprivation of use & enjoyment (3) Notice (4) Failure to fix/repair w/in reasonable time (5) Complete vacate of premises within reasonable time o Tenant can stay in possession of premises and sue for damages = difference between value of the property with and without the breach. Implied Warranty of Habitability (only for residential leases) fit for basic human habitation not waive-able o Duty of T to notify LL of uninhabitable condition and give reason opportunity to have LL fix it o Habitable? Impact on the safety or health of tenant look to housing codes o Abandonment necessary; T liable for reasonable rental value (if any) during period of occupancy + damages for tenants discomfort and annoyance o Tenant can withhold future rent if: Notice, failure to repair within reasonable time; AND Defect existed when rent was withheld Thus, when defect is fixed, T obligated to pay rent o If LL fails to repair within reasonable time, T can resort to self-help and repair, and then deduct the repair from his rent. (punitive damages may be appropriate) Ts options: (1) constructive eviction; (2) repair & deduct (some states); (3) reduce/withhold rent; (4) pay rent & affirmatively sue for damages Tenants Duties; Landlords Rights and Remedies Duty not to commit Waste if T makes changes that would affect a substantial portion of the premises, thus changing its appearance, purpose, and/or nature Voluntary waste affirmative actions that cause a drop in property value (ex: tearing down barn for no reason) Permissive/Involuntary failure to act, thus negligently letting property go to waste; T has a duty to maintain/make necessary repairs Ameliorative waste cannot make improvements without consent of future int. holders Tenant who defaults Modern rule: must follow judicial remedies to remove a breaching or defaulting tenant o Common law: T can recover for wrongful eviction if: (1) LL had no right to possession; OR (2) forcible removal (not peaceable) Tenant who abandons duty to give notice; LL has duty to mitigate (K-like relationship) o Policy: maximizes social utility o Justifications for no mitigation: (1) loss of sale doctrine LL could have sold other apartment (Ct: no, each apartment is unique); (2) LL should not be forced into a relationship with a new tenant he doesnt wish to accept (Ct: LL must be reasonable) Nuisance Private (arising from unreasonable interference with the use and enjoyment of land LL has a duty to abate) & Public (act that interferes with general community interests or the comfort of the public at large; invasion of public rights LL abate) Easements non-possessory interests in land, creating a right to use land possessed by someone else Affirmative easement A is given the right to enter on Bs land (also: building-support, light & air, waterways) Negative easement A is given the right to enforce a restriction on the use of Bs land (Real Cov., Equit. Serv.) *Appurtenant vs. In Gross look to intent of the parties and language they use o o

Easement Appurtenant attached to the land; always transferable (favored by courts) o Requires 2 parcels of land (one dominant, one servient) Easement In Gross personally attached to the owner, not land; sometimes transferable o Requires 1 parcel of land (one servient; person benefitting, not land Ex: PSE&G electric lines) Dominant estates property whose owners benefit from the use of anothers property Servient estate property that is burdened in some aspect for the benefit of a dominant Creation of easement express written grant (dominant right to use easement); reservation (servient subject to easement) o Unlike a license (permission to use land for particular purpose, which would otherwise be trespassing, and thus revocable). License exceptions: License with Interest incidental to ownership of chattel (w/ interest in land) Ex: cutting down trees; fishing = irrevocable License by Estoppel = irrevocable (1) Reliance (spent $ on improvements) + (2) knowledge of the reliance by licensor Easement by Implication (SACRN) implied from prior existing use at time of severance o Look at land use to determine intent of owner (1) Severance of Title must have been owned by same person (2) Apparent & continuous use reasonably foreseeable & gives servient tenant notice (can be constructive notice) (3) Reasonable necessity, not mere convenience at time of severance Grant reasonable necessity; Reservation strictly necessary o Quasi-easement in own land; dominant parcel benefitting from servient part Easement by Necessity (SN) where owner of property is deprived of the use and enjoyment of his land o (1) Severance of title o (2) Necessity (Tradl: strict, reqd landlocked; Minority: reasonably necessary = sufficient) o Policy: (1) Social utility/efficiency; (2) Consistent w/ intent Easement by Estoppel (RK) when property owner misrepresents the existence of an easement while selling a property and does not include an express easement in the deed to the buyer, the court may step in and create an easement (matter of equity). o (1) Reliance (spent $ on improvements) o (2) Knowledge (of the reliance by licensor) Easement by Prescription (AP) acquiring an easement in anothers prop. by continuous and uninterrupted use in satisfaction of the statutory requirements of adverse possession o Adverse possession, but limited to use of land, not title o (1) Actual & Exclusive independent of public, not necessarily independent of owner Cant use public use for continuous & uninterrupted statute of limitations period o (2) Open & Notorious o (3) Under claim of right (objective [maj state-of-mind = irrelevant, hostile [must know its not his], good faith [must think its his] standards) o (4) Continuous & Uninterupted for statutory period nature of property use; never stopped by owner Easement by Condemnation eminent domain by the government Easement by Dedication express creation of an easement Public Trust Doctrine government holds lands in trust for publics benefit o Navigable waters Limit on owners right to exclude o Access to wet sand for recreational use extended to right to dry sand use (dry off) o Factors: 1. Location of dry land in relation to foreshore 2. Extent & availability of publicly-owned upland sand area 3. Nature & extent of public demand 4. History of usage How easements end: o Written release o Merger of 2 properties o Abandonment o Alteration of dominant estate

o Adversely possessed back o Expiration o Government condemnation o Estoppel (property owner relies on the fact that the easement will not be used) o No longer necessary (cessation of purpose) Assignability of Easements o Appurtenant passes automatically to assignees of he land o In Gross may be assignable (commercial, yes; personal recreation, no) Scope of the easement limited to what it was reasonably granted for. Conservation Easement (tech., equitable servitude) to preserve scenic and historic areas and open space; keep land undeveloped, maintain structure of fascade; maintain primary residence (in gross, transferable) tax incentive Real Covenants K regarding the use of the land that runs with the land at law; burdens the estate Burdens the original parties to the K + successors; damages, not in equity (injunction) Real covenant = promise of one land owner (concerning the use of his land) to the other o Benefitted and Burdened land, original owners, and future owners Requirements of running a Burden: WIHVTN o Writing written document proving agreement Statute of Frauds o Intent and my heirs & assigns presumption of running burden can be negated successor o Horizontal Privity original parties; grantor-grantee relationship requires shared interest (either by severance (AB) or through a straw-man (A+BCA+B w/ covenant) Conveyance + covenant at the same time, + mutual interest o Vertical Privity strict = must be equal estate (ex: ToY from FSA vert. priv.) o Touch & Concern affects the physical use or enjoyment of the land A burden to pay money for services that affect the physical enjoyment and use of the land = touch & concern o Notice (actual or constructive public record = sufficient) Requirements of running a Benefit: WIVT o Writing o Intent (presumed) o Vertical Privity loose = can be equal or lesser estate o Touch & Concern affects the physical use or enjoyment of the land Equitable Servitudes: Easier to establish than real covenant, relief/remedy = injunction; burdens the land itself Requirements of running an ES on the Burdened side: NIT o Intent and my heirs & assigns presumed but can be negated be successor o Touch and Concern Negative (dont build higher then) more likely than Affirmative (pay monthly fee for road maintenance sufficient where sufficiently economically beneficial) o Notice harder to prove, since there is often no public record if there is no writing Must be at least 1 of the following: Actual (actual knowledge of covenant/burden) Record (public record) Inquiry (neighborhood looks uniform = constructive notice) Common Scheme; Factors: Of surrounding lots, % of deeds with restrictions Maps with restrictions Sale & advertising Oral representations Common grantor? Requirements or running an ES on the Benefitted side: VIT o Intent (presumed) o Touch & Concern o Vertical Privity (loose = equal or lesser) association acting on behalf of/for the benefit of homeowners = OK Equitable servitude can be in gross if personal to original party doesnt run/transfer Termination of Equitable Servitudes: o Merger

10

o o o o o o

Formal release Frustration of purpose/object Laches unreasonable delay in bringing suit (sleeping on rights) Estoppel Acquiescence failed to enforce others, but chooses to enforce against D Unclean hands reciprocal equitable servitude where A doesnt punish B for violation, and B tries to punish A for violation Abandonment intent to relinquish

11