Property Outline for Professor Rodriguez
Property
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
(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)
(a)
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
(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.
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)
(a)
(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.
(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)
(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.
(5)
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
(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.
(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 &
v)
Scope of Easements
(1)
Brown v. Ross
vi)
Termination of Easements
(1)
Presault v.
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
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.
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
(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.
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)
(a)
As a result of
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.
(a)
Stoyanoff wanted to build a house of unusual design in
the city of
(2)
(a)
(3)
City of
(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