Property Outline for Professor Rodriguez



Professor D. Rodriguez


I.       First Possession: Acquisition of Property by Discovery, Capture, and Creation

A.    A property right is a creation of law, it is created and enforced by the government

i)        Government decides what rights are

ii)      Law protects rights that you legitimately acquire

iii)    Property is a relational concept

B.     First in Time Rule

i)        The most fundamental rule for determining ownership is that the first person to take possession of a thing owns it.

C.     Acquisition by Discovery

(1)   Johnson v. M’Intosh

(a)    The discovery of the Indian-occupied lands of this nation vested absolute title in the discoverers, and rendered the Indian inhabitants themselves incapable of transferring absolute title to others.

D.    Acquisition by Capture

i)        If wild animals (farae naturae) are captured, usually they belong to the captor, but capture is required.

(1)   Pierson v. Post

(a)    Post and his hounds are pursuing a fox.  Pierson spots the fox and shoots it, killing it.  Pierson is entitled to the fox.  Essential rule according to Rodriguez is that pursuit alone does not equal capture.

(b)   IF a wild animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured.

(2)   Custom

(a)    While the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought more effective in getting animals killed, may dictate a different result.

(b)   Ghen v. Rich

(i)     Whaling case where the court ruled in favor of supporting the local custom and whaling industry.

(c)    Keeble v. Hickeringill

(i)     Damages may be recovered for the intentional frightening of wild game off another’s land.  Although no title to the game existed, Keeble was using his land in a lawful manner.  Thus Hickeringill interefered with this lawful use and is liable for damages.

ii)      Wild animals with animus revertendi

(1)   Captured wild animals that develop an animus revertendi (habit of return) continue to belong to the captor when they roam at large. 

iii)    Caves

(1)   Generally a landowner owns the land above and beneath his property.  Thus discovery of an underground cave does not constitute a property right.

iv)    Rights to Oil and Gas

(1)   The rule of capture has been applied by courts to oil and gas.  Some courts have characterized oil and gas as a so called ‘fugitive’ resource analogous to wild animals.  The rationale behind such an approach is the court wants to give an incentive for the production of oil and gas.

v)      Rights in Water

(1)   Western States

(a)    Most western states apply the reasonable use doctrine.  Where water is scarce the rule of capture is limited by the reasonable use doctrine.  A surface owner may capture percolating ground water only to the extent that the use of the water is reasonable.

E.     Acquisition by Creation

i)        Property in One’s Ideas and Expressions: General Principles of Intellectual Property

(1)   Courts have sometimes protected labor and investment under the law of unfair competition.

(a)    International News Service v. Associated Press

(i)     Publication for profit of news obtained from other newsgathering enterprises is a misappropriation of a property right.  New itself is a collection of observable facts which cannot be owned.  What happens in Iraq cannot be owned, but what you write about what happens can.

(2)   To avoid monopoly and encourage competition, the common law generally allows copying an imitation of ideas, as opposed to their expression.

(a)    Cheney Brothers v. Doris Silk Corp

(i)     If a person cannot obtain a patent or copyright on its product, it cannot recover for the copying of it by others. 

ii)      Property in One’s Own Person

(1)   Moore v. Regents of the University of California


II.    Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift

A.    Acquisition by Find

i)        An owner of property does not lose title by losing the property.  As a general rule, a finder has rights superior to everyone but the true owner.

(1)   Armory v. Delamirie

(a)    Chimney Sweep finds a jewel and takes it to a jeweler to have it appraised.  The jeweler refuses to give the jewel back to the chimney sweep, saying that the chimney sweep does not own it.  Chimney sweep is entitled to recover from the jeweler either the jewel or the full money value of the jewel.  As between the chimney sweep and the jeweler, the chimney sweep has the superior right because he is a prior possessor in time.

ii)      Finder v. Owner of Premises (This assumes that the owner of the premises does not own the object, if the owner did own the object, they would by default prevail.)

(1)   If the finder is a trespasser, the owner of the premises where the object is found always prevails over the finder.

(2)   If the finder is an employee of the owner of the premises, the owner of the premises will usually prevail.  Hotel workers who clean rooms want to reward honesty  by

(3)   If the finder is on the premises for a limited purpose, it may be said that the owner gave permission to enter only for a limited purpose of cleaning, under the direction of the owner, and the owner of the premises is entitled to objects found. South Staffordshire Water Co. v. Sharman

(4)   Objects found in a private home or other highly private place are usually awarded to the owner of the premises.  Rationale:  The owner has an intent to exclude everyone and to admit persons only for specific limited purposes that do not include finding property.  Owner also has strong expectations that all objects located in a highly private place are his.

(5)   Exception-Owner not in Possession

(a)    Hannah v. Peel

(i)     Peel owns a large house requisitioned by the government to quarter soldiers. Peel bought the house two years earlier and never moved in.  A soldier finds a brooch in the house hidden on a window ledge.  The soldier prevails over Peel because Peel never moved into the house and took physical possession of it.

iii)    Object Found in a Public Place

(1)   Lost/Mislaid Distinction

(a)    Lost property is property that the owner accidentally and casually lost.

(i)     Lost property goes to the person who finds it.

(b)   Mislaid property is property intentionally placed somewhere and then forgotten.

(i)     Mislaid property goes to the owner of the property where the mislaid item was found.

(ii)   McAvoy v. Medina

1.      Misplaced goods are deemed to be in the bailment of the owner of the property on which they are found for the true owner.  When goods are misplaced, the finder acquires no original right to the property.  Holding the owner of the premises as bailee of the goods in better adapted to secure the rights of the true owner. 

iv)    Abandoned Property

(1)   Abandoned property is property intentionally abandoned by the true owner, who no longer claims any right to it. 

(2)   Abandoned property is awarded to the finder.

B.     Acquisition by Adverse Possession

i)        The Theory and Elements of Adverse Possession

(1)   If, within the number of years specified in the statute of limitations, the owner of land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action of ejectment.

(2)   Adverse possession is a means of acquiring title to property by long, uninterrupted possession.

(3)   The running of the statute of limitations on the owner’s action of ejectment not only bars the owner’s claim to possession, it also extinguishes the old title of the owner and creates a new title by operation of law in the adverse possessor.

ii)      Purpose of Adverse Possession

(1)   To protect title

(a)    Protection of possession protects ownership because title may be difficult to prove.

(2)   To bar stale claims

(3)   To reward those who use land productively

(4)   To honor expectations

iii)    Requirements of Adverse Possession

(1)   Actual entry giving exclusive possession

(2)   Open and notorious possession

(a)    Act of possession must be such that will constitute reasonable notice to the owner that the AP is claiming dominion.

(3)   Adverse and under a claim of right (hostile)

(a)    Possession must be without the owner’s consent.

(4)   Continuous, uninterrupted possession

(a)    Continuous possession requires only a degree of occupancy and use that the average owner would make of the particular type of property.

(b)   The purpose of continuity is to give the owner notice that the possessor is claiming ownership and that the entries are not just a series of trespasses.

(5)   Color of title

(a)    Color of title refers to a claim founded on a written instrument or judgment or decree which, unknown to the claimant, is defective or invalid.

(6)   Van Valkenburgh v. Lutz

(a)    Lutz traveled across a triangular tract to reach his home on a nearby parcel, and also built a shed and kept a garden on the tract.  Van Valkenburgh subsequently purchased the parcel and brought suit against Lutz.  Court ruled that Lutz did not use the entire premise and that Lutz did not substantially improve the property. 

(7)   Mannillo v. Gorski

(a)    To claim title by adverse possession, the possessor need not have been aware that the land in question was owned by another.

iv)    The Mechanics of Adverse Possession

(1)   Tacking

(a)    To establish continuous possession for the statutory period, an adverse possessor can tack onto her own period of adverse possession any period of adverse possession by predecessors in interest.  Thus, separate periods of actual possession by those holding adversely to the owner can be tacked together, provided there is privity of estate between the adverse possessors.

(b)   Tacking on the owners side

(i)     Once adverse possession has begun to run against O, it runs against O and all of O’s successors in interest. Hence, if A enters against O in 1990, and O conveys to C in 1995, the statute continues to run against C from 1990.

(c)    Privity of Estate

(i)     Privity of estate means that a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession.

(2)   Howard v. Kunto

(3)   Interruption by the true owner

(a)    If the true owner reenters the land openly and notoriously for the purpose of regaining possession, an interruption has occurred.  Interruption of possession by the true owner stops the statute of limitations from running.

(4)   Disbilities of Owner

(a)    Infancy, insanity

(b)   Usually only disabilities of the owner at the time of adverse possession count

(5)   Interests not affected by adverse possession

(a)    Future interests

v)      Adverse Possession of Chattels

(1)   A person can acquire title to chattels by adverse possession just as he can acquire title to land.  Generally the requirements of adverse possession of chattels are the same as land, except the period of limitations is shorter.

(2)   New York Rule

(a)    New York holds that the statute of limitations does not begin to run on the owner of stolen goods until the owner knows who has the goods and makes a demand for the return of the goods that is rejected.  By making it very difficult to obtain title to stolen goods by adverse possession, New York believes it will deter theft.  The New York rule also puts the risk of buying stolen goods on the purchaser.

(b)   Due diligence rule

(i)     A majority of courts appear to hold that the statue of limitations does not begin to run on the owner of stolen goods as long as the owner continues to use due diligence in looking for them. The conduct of the owner, not the possessor is controlling.

(ii)   O’Keeffe v. Snyder

1.      The cause of action accrues when the owner first knows, or reasonably should have know through the exercise of due diligence.

C.     Acquisition by Gift

i)        A gift is a voluntary transfer of property without and consideration.  There are three requirements for a gift of chattels

(1)   The donor must intend to make a gift; and

(2)   The donor must deliver the chattel to the donee

(a)    Ritual

(i)     Delivery of the chattel impresses the grantor with the legal significance and finality of the act.  The grantor must “feel the wrench of delivery.”

(b)   Evidentiary

(i)     Delivery is reliable, objective evidence of the grantor’s intent to give.

(c)    Protective

(i)     Requiring delivery protects the unwary or barely competent donor from making improvident oral statements.

(3)   The donee must accept the chattel

ii)      Gift inter vivos

(1)   An inter vivos gift is a gift made during the donor’s life when the donor is not under any threat of impending death.  The ordinary gift is an inter vivos gift.  Once made, an inter vivos gift is irrevocable and the donor cannot get the object back.

iii)    Gift causa Mortis

(1)   A gift causa mortis is a gift made in contemplation of immediately approaching death.  A gift causa mortis revoked if the donor recovers from the illness that prompted the gift. 

(2)   Newman v. Bost

(a)    Constructive Delivery

(i)     Where actual manual delivery is impracticable, constructive delivery is permitted.  A constructive delivery is the handing over of the means of obtaining and control, or in some other way relinquishing dominion and control over the property.

(ii)   Typical constructive delivery involves handing over a key to a locked receptacle.

(b)   Symbolic Delivery

(i)     Where actual delivery is impracticable because the chattel is too large, or the situation of the parties will not permit it, symbolic delivery is permitted.

(3)   Gruen v. Gruen

III. Possessory Estates

A.    There are only four present possessory estates.  Any present estate in land has to be one of the four estates.  There are no other options.

B.     Up From Feudalism

i)        Tenure

ii)      Feudal Tenures and Services

iii)    Feudal Incidents

iv)    Avoidance of Feudal Incidents

v)      The Decline of Feudalism

C.     The Fee Simple

i)        A fee simple is an estate that has the potential of enduring forever.  A fee simple is absolute ownership.  There are no limitations on its inheritability.  It cannot be divested, nor will it end on the happening of any event.

ii)      How the Fee Simple Developed

(1)   Rise of Heritability

(2)   Rise of Alienability

(3)   Rise of Fee Simple Estate

iii)    Creation of a Fee Simple

(1)   ‘to A and his heirs”

(2)   “to A”

iv)    Inheritance of a Fee Simple

D.    The Fee Tail

i)        The fee tail is an estate that has the potential for enduring forever, but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession.

ii)      “to A and the heirs of his body”

E.     The Life Estate

i)        A life estate is an estate that will end necessarily at the death of a person. 

ii)      “to A for life”

iii)    Types of life estates

(1)   For life of grantee

(a)    The usual life estate is measured by the grantees life.

(2)   Pur autre vie

(a)    A life estate pur autre vie is measured by the life of someone other than the owner of the life estate.

iv)    White v. Brown

v)      Baker v. Weedon

vi)    Waste

(1)   Waste is conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate in the land.  A common law form of action entitled “waste” lay against the life tenant for damages to the land.

(a)    Rationale

(i)     The grantor intends that the life tenant shall have the general use of the land in a reasonable manner, but that the land shall pass to the owner of the remainder as nearly as practicable unimpaired in its nature, character, and improvements.

(ii)   Where two or more persons own interests in land, fairness requires that one shall not impose severe economic damage on the other.

F.      Leasehold Estates

i)        Leasehold estates include estates that endure

(1)   For any fixed calendar period or any period of time computable by the calendar

(a)    Term of years

G.    Defeasible Estates

i)        A fee simple can be created so that it is defeasible on the happening of some event, and the owner of the fee simple then loses, or may lose the property.  If a fee simple is defeasible, then it is not absolute.

(1)   Fee simple determinable

(a)    A fee simple determinable is a fee simple estate so limited that it will automatically end when some specified event happens.

(b)   A fee simple determinable has the possibility of enduring forever, but, if the contingency occurs, the estate automatically ends.

(c)    Because there is a possibility that the grantee’s determinable fee may come to an end on the happening of the stated event, the grantor has a future interest called a possibility of reverter.

(2)   Fee simple subject to condition subsequent

(a)    A fee simple subject to condition subsequent is a fee simple that does not automatically terminate but may be cut short at the grantor’s election when a stated condition happens.

(b)   A fee simple subject to condition subsequent is a fee simple because it may endure forever.  If the contingency occurs, the grantor merely has the power to reenter and terminate the estate. 

(i)     A fee simple subject to condition subsequent is created by first giving the grantee an unconditional fee simple and then providing that the fee simple may be divested by the grantor or her heirs if a specified condition happens.

(c)    The grantor maintains a future interest in that he/she retains a right of entry, or a right to reenter.

(d)   If language is ambiguous, then the courts prefer to interpret the writing as conveying a fee simple subject to condition subsequent.  This is to avoid automatic forfeiture; the general policy of courts is to avoid forfeiture.

(3)   Fee simple subject to executory limitation

(a)    A fee simple subject to an executory limitation is a fee simple that, on the happening of a stated event, is automatically divested in favor of a third person.

(4)   Mahrenholz v. County Board of School Trustees

(5)   Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano

IV. Future Interests

A.    Introduction

i)        A future interest is a nonpossessory interest capable of becoming possessory in the future. 

ii)      There are only five categories of future interests

(1)   Reversion

(2)   Possibility of reverter

(3)   Right of entry

(4)   Remainder

(5)   Executory interest

B.     Future Interests in the Transferor (grantor)

i)        Reversion

(1)   A reversion is a future interest left in the grantor after the grantor conveys a vested estate of a lesser quantum than he has.

(2)   All reversions are vested interests even though not all reversions will necessarily become possessory.

ii)      Possibility of Reverter

(1)   A possibility of reverter arises when a grantor carves out of her estate a determinable estate of the same quantum.  In almost all cases it follows a determinable fee.

(2)   A possibility of reverter cannot be created in a grantee. The analogous future interest created in a grantee is called an executory interest.

iii)    Right of Entry

(1)   A right of entry is retained when the grantor creates an estate subject to condition subsequent and retains the power to cut short the estate.

iv)    Correlative Estates

(1)   Life estate-reversion

(2)   Fee simple determinable-possibility of reverter

(3)   Fee simple subject to condition subsequent-right of reentry

C.     Future Interests in Transferees (grantee)

i)        Introduction

(1)   If a future interest is created in a grantee, it must be either a remainder of an executory interest.

ii)      Remainders

(1)   A remainder is a future interest in a grantee that

(a)    Has the capacity of becoming possessory at the expiration of the prior estates

(b)   Cannot divest the prior estates

(2)   A remainder is a future interest in a grantee that is capable of becoming a present possessory estate on the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.

(3)   A remainder NEVER divests or cuts short the preceding estate; instead it waits patiently for the preceding estate to expire.

(4)   The essential characteristics of every remainder are

(a)    Must have a preceding estate

(b)   Must follow a fee tail, life estate, or term of years

(c)    Must be capable of becoming possessory on natural termination of preceding estate.

(5)   Remainders can be classified as  vested or contingent

(a)    Vested

(i)     A vested remainder is a remainder that is both created in an ascertained person and is not subject to any condition precedent.

1.      Indefeasibly vested remainder

a.       When a remainder is indefeasibly vested, the holder of the remainder is certain to acquire a possessory estate at some time in the future, and is also certain to be entitled to retain permanently thereafter the possessory estate acquired.

2.      Vested remainder subject to open

a.       When a remainder is vested subject to open, it is vested in a class of persons, at least one of whom is qualified to take possession, but the shares of the class members are not yet fixed because more persons can subsequently become members of the class.

3.      Vested remainder subject to divestment

a.       When a remainder is vested subject to divestment, it is either vested subject to being divested by the operation of a condition subsequent or vested subject to divestment by an inherent limitation of the estate in remainder.

(ii)   A contingent remainder is a remainder that is either created in an unascertained person or subject to a condition precedent.

1.      A condition precedent is an express condition attached to the remainder, such as, “to B if B reaches age 30.”

2.      An unascertained person is a person who is not yet born or cannot be determined until the happening of an event.

a.       Unborn children

b.      Heirs

3.      Whenever a contingent remainder in fee simple is created, there is a reversion.

iii)    Executory Interests

(1)   An executory interest is a future interest in a grantee that, in order to become possessory, must divest or cut short the prior estate or spring out of the grantor at a future date.  The basic difference between a remainder and an executory interest is that a remainder never divests the prior estate, whereas an executory interest almost always does.

(2)   Two Prohibitory Rules: No Shifting Interests; No Springing Interests

(3)   The Rise of the Use

(4)   Abolition of the Use: Statute of Uses

(a)    Made possible legal shifting and springing future interests

(5)   Modern Executory Interests

(a)    Springing Executory Interest

(i)     A springing executory interest is a future interest in a grantee that springs out of the grantor at a date subsequent to the granting of the interest, divesting the grantor.

(b)   Shifting interest

(i)     A shifting executory interest is a future interest in a grantee that divests a preceding estate in another grantee prior to its natural termination.

D.    The Trust

i)        A trust is a fiduciary relationship with respect to property in which one person, the trustee, holds the legal title to property subject to equitable rights in beneficiaries.  It is basically a device whereby one person manages property for the benefit of others.

E.     Rules Furthering Marketability by Destroying Contingent Future Interests

i)        Destructibility of Contingent Remainders

ii)      The Rule in Shelley’s Case

iii)    The Doctrine of Worthier Title

iv)    The Rule Against Perpetuities

(1)   The Common Law Rule

(a)    Mechanics of the Rule

Danger signs, a condition in conveyance that isn't personal to someone

O to A for life, then to B but if land is ever used as a tavern to C

There is an identified age or life greater than 21 years

Interest is given by grantor to someone in the generation after the next. 

To A for life, then to A's grandchildren, if someone is conceived, he becomes validating life

Conveyance that requires a holder survive someone not named ,  widow

A then to A's widow, then to . . .   – don't know who A's widow will be

Holder won't be identified until death of someone describe rather than name

            O to A for life, then to A's first child for life, then to president

(2)   The Perpetuity Reform Movement

(a)    Early Reforms

(b)   The Uniform Statutory Rule Against Perpetuities

(c)    Qualified Abolition of the Rule, and the Rise of the Perpetual Trust

V.    Co-ownership and Marital Interests

A.    Common Law Concurrent Interests

i)        Types, Characteristics, Creation

(1)   Tenancy in common

(a)    In a tenancy in common, two or more persons own the property with no right of survivorship between them; when one tenant in common dies, her interest passes to her heirs or devisees.

(b)   Each co-tenant is the owner of a separate and distinct share of the property, which has not been divided among the cotenants.  Each owner has a separate undivided interest in the whole.

(c)    Each tenant in common has the right to possess and enjoy the entire property, subject to the same right in each co-tenant.

(d)   When a tenant in common dies, her interest passes to her devisees or heirs.  It does not go to the surviving tenant in common.

(e)    Under modern law, whenever a conveyance is made to two or more persons who are not husband and wife, they are presumed to take as tenants in common and not joint tenants.

ii)      Joint Tenancy

(1)   A joint tenancy is a form of concurrent ownership wherein each co-tenant owns an undivided share of property, and the surviving co-tenant has the right to the whole estate.  The right of survivorship is the distinctive feature of the joint tenancy.

(a)    The four unities

(i)     Common law requires that joint tenants interests be equal in all respects

1.      They must take their interests

a.       At the same time (unity of time)

b.      By the same instrument (unity of title)

i.        All tenants must acquire title by the same deed or will, or by a joint adverse possession

c.       with identical interests (unity of interest)

i.        Interest of each joint tenant must be equal in an estate of one duration.

d.      with equal right to possess the whole property (unity of possession)

i.        Joint tenancy requires that each joint tenant have the right to possession of the whole.

2.      When a grantor failed to create a joint tenancy because one of the four unities was not present, a tenancy in common was created.

(2)   Creation of a joint tenancy

(a)    “To A and B as joint tenants with the right of survivorship, and not as tenants in common.”

iii)    Tenancy by Entirety

(1)   A tenancy by entirety is a form of concurrent ownership that can be created only between a husband and a wife, holding as one person. 

iv)    Severance of Joint Tenancies

(1)   Riddle v. Harmon

(a)    Joint tenant was permitted to unilaterally sever the tenancy by conveying her interest to herself without using an intermediary.

(2)   Harms v. Sprague

v)      Joint Tenancy Bank Accounts

(1)   Joint and survivor bank account

(a)    Either party on the account can withdraw the amount deposited and the survivor takes whatever sum is remaining in the account when the other joint tenant dies

(2)   Convenience account

(a)    If the depositor, O, is aging or sick and needs another person, A, to pay bills, the depositor may open a joint bank account intending it to be a convenience account.  A can lawfully write checks during the depositor’s life to pay bills, but A has no right of survivorship.

vi)    Relations among Concurrent Owners

(1)   Partition

(a)    Any tenant in common or joint tenant has the right to bring a suit in partition.  Partition is an equitable proceeding in which the court either physically divides or sells the common property, adjusts all claims of the parties, and separates them. 

(i)     Partition in kind

1.      The court may order physical partition of the property into separate tracts if that is feasible.  Once the land is physically partitioned, each party owns her tract alone in fee simple.  If the separate tracts are not equal in value, the court will require one tenant to make a cash payment.

2.      Delfino v. Vealencis

a.       Partition sales are employed only where partition in kind is unworkable.

(ii)   Partition sale

1.      If physical partition is not feasible or in the best interests of the parties, the court will order the property sold and the sale proceeds divided equally among the co-tenants.

(2)   Sharing the Benefits and Burdens of Co-Ownership

(a)    If B is not excluded by A, A is entitled to use and occupy every part of the property without paying any amount to B.  B cannot recover a share of the rental value of the land unless B has been ousted by A, or A agreed to pay B, or A stands in a fiduciary relationship to B.

(i)     Rationale

1.      This rule promotes the productive use of property.  It rewards the co-tenant who goes into possession and uses the property.  It also follows logically from the premise that each co-tenant has the right o possession of all of the property.

(b)   Ouster

(i)     Ouster is an act by one co-tenant that deprives another cotenant of the right to possession.

(c)    Taxes

(i)     Each co-tenant has the duty to pay her share of taxes.

1.      Exception—cotenant in possession

a.       If the paying co-tenant is in sole possession, she has the duty to pay the taxes and mortgage interest up to the amount of the reasonable rental value of the property.

2.      Exception—Rent received from third person

a.       If the paying co-tenant receives rent from a third person, she must account to her co-tenant for the net rents received after deducting taxes.

(d)   Repairs

(i)     Repairs are voluntary; no person has a duty to make them.  Hence the common law rule is that a co-tenant who makes repairs cannot compel contribution from her co-tenants. 

(e)    Spiller v. Mackereth

(i)     Spiller and Mackereth were tenants in common of a warehouse.  When their tenant vacated, Spiller began using the entire warehouse as a storage facility.  Mackereth demanded that he either vacate half the premises or pay rent.  The court ruled in favor of Spiller, holding that absent an owner physically barring a cotenant from entry upon the owned premises, the owner is not liable to the cotenant for rent. 

(f)    Swartzbaugh v. Sampson

VI. Tradition, Tension, and Change in Landlord-Tenant Law

A.    The Leasehold Estates

i)        The Term of Years

(1)   A tenancy for years is an estate that lasts for some maximum fixed period of time.

(a)    A tenancy of no fixed period but terminable on some event is usually held to be a term of years.

(b)   Term of years determinable

(i)     A term of years may be made terminable on some event or subject to condition subsequent.

(2)   Termination of a term of years

(a)    Because the parties know precisely when a term of years will end, a term of years expires at the end of the stated period without either party giving notice.

ii)      The Periodic Tenancy

(1)   A periodic tenancy is a tenancy for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination.

(2)   A periodic tenancy continues until proper notice of termination is given with the exception that if the tenancy is from year to year, only six months’ notice is required. 

iii)    The Tenancy at Will

(1)   A tenancy at will is a tenancy of no stated duration that endures only so long as both landlord and tenant desire.  Either can terminate at any time.

(a)    A tenancy at will is most likely to have arisen from an operation of law

(2)   Garner v. Gerrish

(a)    Dispute over whether or not Gerrish’s tenancy was terminable at the will of the lessor.  The court ruled that a lease may provide for termination at the will of the tenant only.

iv)    The Tenancy at Sufferance: Holdovers

(1)   When a tenant who was rightfully in possession wrongfully remains in possession after termination of the tenancy, he is called a tenant at sufferance. 

(2)   Crechale & Polles, Inc. v. Smith

(a)    A landlord who elects to treat a holdover tenant as a trespasser cannot later elect to hold the tenant liable for a new lease term.

B.     The Lease

i)        Is the lease a conveyance or a contract?

(1)   A lease transfers possessory interest in land, so it is a conveyance that creates property rights

(2)   It is also the case that leases usually contain a number of promises, such as the promise to pay rent, etc., so the lease is also a contract.

C.     Selection of Tenants (Herein of Unlawful Discrimination)

i)        Fair Housing Act of 1968

(1)   The Fair Housing Act makes it unlawful to refuse to sell or rent a dwelling to any person because of race, color, religion, national origin, or sex.

(2)   A discriminatory motive need not be proved in order to make out a prima facie case under the FHA; proof of discriminatory effect is sufficient.

(3)   Award of attorney’s fees in FHA cases, which is contrary to the usual rule in civil litigation, has the purpose of encouraging victims of discrimination to seek judicial relief.

D.    Delivery of Possession

i)        The Landlord has the duty to transfer to the tenant at the beginning of the tenancy the legal right to possession.

ii)      “English Rule” (majority view)

(1)   In most jurisdictions, the landlord has the duty to deliver to the tenant actual possession, as well as the right to possession, at the beginning of the term.  If the previous tenant has not moved out when the new tenant’s lease begins, and the landlord does not remove the person within a reasonable period of time, the landlord is in default.

(a)    Rationale

(i)     This carries out the intention of the parties because the tenant bargains for use of property, not a lawsuit against the prior tenant.

(ii)   The Landlord is more likely to know if the previous tenant will move out and is in a better position to pressure him to do so.

(iii)  The landlord is usually much more familiar with eviction procedures than the tenant.

(iv)  Reasons ii, iii, imply that it is more efficient to put the duty on the landlord.

(b)   Tenant’s remedies

(i)     The tenant can terminate the lease and recover damages sustained by having to live elsewhere.

(ii)   The tenant can affirm the lease and refuse to pay rent for the portion of the term during which he was kept out of possession.

iii)    “American Rule” (minority view)

(1)   In some jurisdictions, the landlord has no duty to deliver actual possession at the commencement of the term, and hence is not under default under the lease when the previous tenant continues to wrongfully occupy the premises.

(a)    Rationale

(i)     The lease conveys a leasehold to the tenant.  It is up to the tenant to take possession of his property if he wants it.

(ii)   The tenant has the right to evict the holdover by summary proceedings and needs no additional remedy against the landlord.

(iii)  The landlord should not be held liable for the tortuous acts of the holdover.

(iv)  Because the landlord is not required to evict a trespasser after the tenant takes possession, the landlord should not be required to evict a trespasser before the tenant takes possession.

(b)   Remedies against the holdover tenant

(i)     The incoming tenant can sue to evict the holdover tenant and collect damages

(ii)   The incoming tenant can treat the holdover tenant as a tenant for another term, with rent payable to the incoming tenant.

(2)   Hannan v. Dusch

(a)    Court holds that American rule is applicable.

E.     Subleases and Assigments

i)        Assignment

(1)   Unless the lease prohibits it, a tenant or landlord may freely transfer his interest in the premises.  If the tenant transfers the entire remaining term of his leasehold, he has made an assignment, and the assignee comes into privity of estate with the landlord.

ii)      Sublease

(1)   The common law rule is that if a tenant transfers less than the entire remaining term of his leasehold, he has made a sublease, and he becomes the landlord of the subleasee. The subleasee is not in privity of estate with the landlord and cannot sue or be sued by the landlord.

(2)   Ernst v. Condit

(a)    An assignment arises when a lessee transfers his entire interest under a lease.

(3)   Kendall v. Ernest Pestana, Inc.

(a)    A lessor may not arbitrarily withhold consent to an assignment.  Interests in property, including those of a leasehold nature, should be freely alienable.

F.      The Tenant Who Defaults

i)        The Tenant in Possession

(1)   Berg v. Wiley

ii)      The Tenant Who Has Abandoned Possession

iii)    Landlord has a duty to mitigate

(1)   Sommer v. Kridel

(a)    Kridel entered into a two year lease with Sommer.  After paying the deposit he reneged on the lease and repudiated the agreement.  The landlord, Sommer did not rent out the apartment until many months later.  The court ruled that the landlord had a duty to mitigate damages when he seeks to recover rents due from a defaulting tenant.

G.    Duties, Rights, and Remedies (Especially Regarding the Condition of Leased Premises)

i)        Landlord’s Duties; Tenant’s Rights and Remedies

(1)   Quiet Enjoyment and Constructive Eviction

(a)    A tenant has a right of quiet enjoyment of the premises, without interference by the landlord.

(b)   Constructive Eviction

(i)     Where, through the fault of the landlord, there occurs a substantial interference with the tenant’s use and enjoyment of the leased premises, so that the tenant can no longer enjoy the premises as the parties contemplated, the tenant may terminate the lease, vacate the premises, and be excused from further rent liability.

(c)    Reste Realty Corp. v. Cooper

(i)     Cooper rented the basement floor of an office building that was continually flooded during periods of rain.  Cooper notified the landlord vacated the premise.  The landlord then sued to enforce the lease upon Cooper.  The court ruled in favor of Cooper, holding that a covenant of quiet enjoyment is implied in a lease.  Where this covenant is breached substantially by the landlord, the doctrine of constructive eviction is available as a remedy to the tenant.

(2)   The Implied Warranty of Habitability

(a)    In recent years, a growing number of courts have held that there is an implied covenant of initial habitability and fitness in leases of urban dwellings, including apartments.  They have further held that a tenant is relieved of his obligations when the landlord breaches the implied covenant of habitability.

(b)   Hilder v. St. Peter

ii)      Tenant’s Duties; Landlord’s Rights and Remedies

(1)   Eviction of Tenant

(a)    The landlord may wish to

(i)     Evict the tenant during the term of the lease for nonpayment of rent or for other cause

(ii)   Evict the tenant who holds over after the term expires

VII.          Judicial Land Use Controls: The Law of Nuisance

A.    An Introduction to the Substantive Law

i)        A nuisance is an unprivileged interference with a person’s use and enjoyment of her land.  Relief from nuisance was awarded at common law under the basic maxim that one must use her property so as not to injure that of another. 

(1)   Private Nuisance

(a)    A nuisance that involves interference with the private use and enjoyment of one or a number of nearby properties.

(b)   A private nuisance can either be

(i)     Intentional and unreasonable

(ii)   Unintentional, but negligent, reckless, or resulting from an abnormally dangerous activity

(2)   Public Nuisance

(a)    Interference is with a right common to the general public.

ii)      Types of unreasonable interference

(1)   Character of the harm

(a)    Depreciation of property value

(i)     Use of property in a manner that depreciates the value of surrounding property is not enough by itself to constitute a nuisance.  Even so, it is an important factor in proving that there is substantial injury to the plaintiff.

(2)   Character of the neighborhood

(a)    The character of the neighborhood is of great importance in determining a nuisance.  Residential areas are often given a preferred status and are protected against incompatible uses.

(3)   Social value of the conflicting uses

(a)    One of the primary objects of nuisance law is to avoid the more serious harm.  If one party’s conduct has great social value, a court will be reluctant to enjoin it as a nuisance.

(4)   Morgan v. High Penn Oil Co.


B.     Remedies (and More on the Substantive Law)

i)        The basic choice of remedy is between injunctive and damage relief.

(1)   Enjoin

(a)    Estancias Dallas Corp. v. Schultz

(2)   Award damages

(a)    Boomer v. Atlantic Cement Co.

(i)     Atlantic Cement Co. has invested $45 million in its plant, which employs 300 people.  Dirt and smoke emanating from the plant causes $185,000 in permanent damages to A’s property.  It has been held that A cannot enjoin Atlantic for this nuisance, but can collect $185,000 in damages.

(3)   Enjoin AND award damages (Spur v. Del Webb)

(a)    Priority in time

(b)   Another important factor is which of the conflicting uses was first located in the vicinity.  If the defendant’s use was first, the plaintiff has “come to the nuisance” and has a less appealing case because she could have avoided the harm. 

(c)    Spur Industries, Inc. v. Del E. Webb Development Co.

(4)   Refuse any remedy

VIII.       Private Land Use Controls: The Law of Servitudes

A.    Easements

i)        An easement is a grant of an interest in land that entitles a person to use land possessed by another.

ii)      Historical Background, and Some Terminology

(1)   Types of easements

(a)    Affirmative easement

(i)     The owner of an affirmative easement has the right to go onto the land of another and do some act on the land.  Most easements are affirmative.

(b)   Negative easement

(i)     The owner of a negative easement can prevent the owner of the servient land from doing some act on the servient land.

(2)   Easements appurtenant or in gross

(a)    Easement appurtenant

(i)     If an easement benefits its owner in the use of another tract of land, it is appurtenant to that land.  The land benefited is called the dominant tenement; the land burdened is the servient tenement.

(ii)   Easement in gross

1.      If an easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land, the easement is in gross.

(b)   Easement appurtenant favored

(i)     If an instrument creating an easement is ambiguous, courts generally construe it as creating an easement appurtenant to land rather than an easement in gross.

(3)   Profit

(a)    A profit is the right to take something off another person’s land that is part of the land or a product of the land.  Profits include crops, timber, minerals, wild game, and fish.  When a profit is granted, an easement to go on the land and remove the subject matter is implied.

(b)   Distinguish—license

(i)     A license is permission to go on land belonging to the licensor.  Licenses are very common: i.e. the plumber repairing a stopped-up drain.

iii)    Creation of Easements

(1)   Easements may be created by express grant, reservation, implication, or prescription.

(a)    Creation by express grant

(i)     An easement over the grantor’s land may be granted to another.

(b)   Creation by reservation

(i)     An easement may be reserved by the grantor over the land granted.  If the grantor conveys land, reserving an easement, the land conveyed is the servient tenement.

(c)    Creation by implication

(i)     An easement by implication is created by operation of law, not by a written instrument.  It is an exception to the Statute of Frauds.  An easement can be implied only in very narrow circumstances indicating that the parties intended an easement or that an easement is a necessity. 

1.      Easement implied from existing use

(2)   Willard v. First Church of Christ, Scientist

(3)   Holbrook v. Taylor

(4)   Van Sandt v. Royster

(5)   Othen v. Rosier

(6)   Matthews v. Bay Head Improvement Association

iv)    Assignability of Easements

(1)   Miller v. Lutheran Conference & Camp Association

v)      Scope of Easements

(1)   Brown v. Ross

vi)    Termination of Easements

(1)   Presault v. United States

vii)  Negative Easements

viii)            Conservative and Other Novel Easements

B.     Covenants Running with the Land

i)        A covenant is a promise to do or not to do a certain thing.  The promise to do something is an affirmative promise, the promise not to do something is a negative promise.

ii)      A real covenant is a convenant that runs with the land at law.

iii)    Historical Background

(1)   Covenants Enforceable at Law: Real Covenants

(2)   Covenants Enforceable in Equity: Equitable Servitudes

(a)    An equitable servitude is a covenant that equity will enforce against assignees of the burdened land who have notice of the covenant.  The usual equitable remedy granted is an injunction against violation of the covenant.

(i)     Tulk v. Moxhay

1.      Tulk sold Leicester Square in London to Elms, who promised for himself, his heirs, and his assigns not to build on the Square.  Elms conveyed the square to Moxhay, who had notice of the covenant.  Moxhay proposed to build on the square, and Tulk sued for an injunction.  The chancellor granted the injunction.  The chancellor deemed it inequitable that a covenant should be unenforceable against a subsequent purchaser whre the purchaser acquired the land with knowledge of the restriction.  The purchaser, Moxhay, probably supposed himself bound by the covenant and probably paid less for the land than he would have had to pay for unburdened land.

iv)    Creation of Covenants

(1)   At common law a real covenant had to be in writing and under seal.  A writing is still required.

(2)   Sanborn v. McLean

v)      Validity and Enforcement of Covenants

(1)   The major issue involving real covenants is whether the burden of the covenant will run to successor owners of the promisor’s land. 

(a)    Requirements for the burden of covenant to run at law

(i)     The contracting parties must intend that successors to the promisor be bound by the covenant.

(ii)   There must be privity of estate between the original promisor and promisee as well as privity of estate between the promisor and his assignee.

(iii)  The covenant must touch and concern the land.

(iv)  A subsequent purchaser of the promisor’s land must have notice of the covenant.

(2)   Neponsit Property Owner’s Association, Inc.  v. Emigrant Industrial Savings Bank

(3)   Caullett v. Stanley Stilwell & Sons, Inc.

vi)    Scope of Covenants

(1)   Hill v. Community of Damien of Molokai

(2)   Shelley v. Kraemer

vii)  Termination of Covenants

(1)   Western Land Co. Truskolaski

(2)   Rick v. West

(3)   Pocono Springs Civic Association, Inc. v. MacKenzie

viii)            Common Interest Communities

(1)   Nahrstedt v. Lakeside Village Condominium Association, Inc.

IX. Legislative Land Use Controls: The Law of Zoning

A.    Introduction

i)        Zoning is the primary tool used by local government to control the use of land.

ii)      The authority for zoning comes from the state.

iii)    Aims of zoning

(1)   Separation of uses

(a)    The most fundamental means by which zoning accomplishes its purposes s the separation of conflicting uses.  Zoning separates uses in a hierarchical fashion where some uses are deemed higher priority than others.  Single family homes usually rest at the top of this pyramid with industrial uses given the lowest priority.

(2)   Density controls

(a)    Density controls are rules that indirectly control the number of people using an area of land.

(3)   Efficient allocation of resources

(4)   Maximization of property values

iv)    Dark side of zoning

(1)   Racial and or class discrimination

v)      Historical Background

(1)   Village of Euclid v. Ambler Realty Co.

(a)    As a result of Euclid’s zoning ordinances, Ambler Realty’s property decreased substantially in value.   Ambler brought suit claiming that zoning is an unconstitutional exercise of the 14th amendment due process.  The court ruled in favor of Euclid, holding that zoning is a valid exercise of the police power as long as it is not clearly arbitrary and unreasonable.

vi)    The Structure of Authority Underlying Zoning

(1)   Enabling Legislation

(2)   The Comprehensive Plan

B.     Expanding the Aims (and Exercising the Muscle of Zoning)           

i)        Aesthetic Regulation

(1)   State ex rel. Stoyanoff v. Berkeley

(a)    Stoyanoff wanted to build a house of unusual design in the city of Ladue.  The court ruled in favor of Berkeley, holding that the protection of property values is a legitimate objective of zoning ordinances.  The denial of a building permit for Stoyanoff’s house does not appear to be  arbitrary and unreasonable when the basic purpose to be served is that of the general welfare of persons in the entire community.

(2)   Anderson v. City of Issaquah

(a)    Anderson wanted to build a new building and submitted his building plans to the architectural board of the City.  The city denied his plans on more than one occasion, however they only able to offer vague, subjective guidelines to follow in order to comply with the building code.  The court ruled in favor of Anderson, holding that a building code cannot consist of design criteria that are strictly subjective in nature.  Where code is so vague as to where one has to guess at its meaning violated due process.

(3)   City of Ladue v. Gilleo

(a)    Ladue passed an ordinance banning all signs, except those pertaining to the sale of homes.  Gilleo had erected a sign that protested the Persian Gulf War and as a consequence was cited by the city.  The court ruled in favor of Gilleo, holding that the ordinance banning signs was unconstitutional.  The court held that signs were an important medium of communication and such restrictive prohibition violated first amendment rights.

X.    Eminent Domain and the Problem of Regulatory Takings

A.    The Power of Eminent Domain: Sources and Rationales

B.     The Public-Use Puzzle (and a Note on Just Compensation)

i)        Kelo v. City of New London