PROPERTY
Northeastern University Bridgewater Outline Fall 1998

I.	Introduction	1
A.	General Concepts	1
II.	Possession	1
A.	Definitions	1
III.	Acquisition	1
A.	First Possession	1
1.	Creation - News	1
INTERNATIONAL NEWS SERVICE v. ASSOCIATED PRESS	1
Baird, The legacy of INS v. AP	1
2.	Creation - Silk Scarfs	2
CHEYNEY BROS. v. DORIS SILK CORP.	2
3.	Creation - Perfume	2
SMITH v. CHANEL	2
4.	Creation - Legislation	2
Common Law	2
5.	Capture - Fox	2
PIERSON v. POST (1805)	2
6.	Capture - Whaling	2
GHEN v. RICH (1881)	2
Melville, Moby Dick	3
Fast-fish/loose-fish	3
7.	Capture - Water & Gas	3
Fugitive Resources	3
8.	Capture - Resources	3
Llewellyn et al., The Cheyenne Way	3
Demsetz, Toward A Theory of Property Rights	3
Externalities	4
9.	Capture - Commons	4
Hardin, Tragedy of the Commons	4
10.	Discovery	4
JOHNSON v. M'INTOSH (1823)	4
11.	Discovery - Space	4
McDougal, et al., "Law and Public Order In Space"	4
"The Man Who Sold The Moon"	5
B.	Subsequent Possession	5
1.	Finders	5
AMORY v. DE LAMIRIE	5
HANNAH v. PEEL	5
MC AVOY v. MEDINA	5
C.	Adverse Possession	5
Theory and Elements of Adverse Possession	5
2.	Right of Title; Colour of Title	5
VAN VALKENBURGH v. LUTZ	5
MANILLO v. GORSKI	6
3.	Tacking; Privity	6
HOWARD v. KUNTO (1970)	6
4.	Disability of True Owner	7
Improvements & Encroachments; Disability; Adverse Possession Against the Government	7
5.	Gifts	7
GRUEN v. GRUEN	7
D.	Self-Possession	7
1.	People as Property	7
Williams, Alchemical Notes	7
E.	People as Property	7
Allen, Surrogacy, Slavery and the Ownership of Life	7
ROBIN v. HARDAWAY	7
Soifer, Status, Contract and Promises Unkept	7
2.	People Parts	8
MOORE v. REGENTS OF THE UNIVERSITY OF CALIFORNIA (1991)	8
FLORIDA v. POWELL	8
DAVIS v. DAVIS	8
3.	Person-Like Property	8
"In the Matter of Baby M."	8
Williams, Spare Parts, Family Values, Old Children, Cheap	8
WANA THE BEAR v. COMMUNITY CONSTRUCTION CO.	8
Hellerman, "Talking God"	8
Persona	8
In Re: Lt. Data	8
4.	Right to Exclude	9
JACQUE v. STEENBERG HOMES, INC.	9
STATE v. SHACK	9
Notes	9
IV.	Property Interests Allocation	9
A.	Possessory Intersts	9
1.	Feudal Estate System	9
The History of Feudalism and the Estate System	9
2.	Fee Simple Absolute	10
3.	Fee Tail	11
4.	Life Estate	11
WHITE v. BROWN, 559 S.W.2d 938 (1977)	11
BAKER v. WEEDON, 262 So. 2d. 641 (1972)	12
5.	Defeasible Fees	12
6.	Fee Simple Determinable (FSD)	12
7.	Fee Simple Subject to Condition Subsequent (FSSCS)	13
8.	FSD or FSSCS	13
MAHRENHOLZ v. COUNTY BOARD OF SCHOOL TRUSTEES, 417 N.E.2d 138 (1981)	13
9.	FSSCS or Absolute Restraint	14
MOUNTAIN BROW LODGE N0.82 IND. ORDER OF ODD FELLOWS v. TOSCANO, 64 Cal. Rptr. 816 (1968	14
10.	Conclusion	14
B.	Concurrent and Familial Interests	15
1.	Common Law	15
2.	Severance of Joint Tenancies	15
RIDDLE v. HARMON (1980)	15
HARMS v. SPRAGUE (1984)	16
3.	Tenancy by the Entirety	16
SAWADA v. ENDO (1977)	16
4.	Partition	16
SPILLER v. MAC KERETH	17
SWARTZBAUGH v. SAMPSON	17
5.	Benefit and Burden	17
C.	Landlord and Tenant	18
1.	Leasehold Estates and Leases	18
GARNER v. GERRISH	18
CRECHALE AND POLLES v. SMITH	18
Rice, E., Foundations of Early Modern Europe	19
Up in Smoke / The Expansion of Tenant's Rights	19
Who Are The Renters?	19
Anatomy of a Landlord/Tenant Case	19
2.	FHA - Unlawful Discrimination	19
STARRETT CITY ASSOCIATES (U.S. v., 1987)	19
3.	Subleases and Assignments - Possession	19
ERNST v. CONDITT (Tenn, 1964)	19
KENDALL v. ERNEST PESTANA (CA, 1985)	20
4.	Default and Abandonment	21
5.	Landlord's Duties / Implied Warranty of Habitability	21
6.	Tenant's Duties	22
7.	Reforms - Rent Control	24
CROMWELL ASSOCIATES v. MAYOR AND COUNCIL OF NEWARK (NJ, 1985)	24
D.	Feudalism Revisted	25
Reich, The New Property, 73 Yale L.J. 733 (1964)	25
Security and Freedom	25
Woolf, Virginia, A Room of One's Own	25
Power of Land Ownership ('A Farm of One's Own')	25
V.	Private Regulation	25
A.	Easements	25
HOLBROOK v. TAYLOR (1976)	25
2.	Creation	26
3.	Implication by Apparent Use	26
VAN SANDT v. ROYSTER	26
4.	Easement by Necessity	27
OTHEN v. ROSIER	27
5.	Prescription	27
6.	Condemn of Easement	28
MATTHEWS v. BAY HEAD IMPROVEMENT ASSOC.	28
7.	Scope and Termination	28
BROWN v. VOSS (1986)	28
8.	Negative Easments	29
9.	Scope	29
MILLER v. LUTHERAN CONFERENCE AND CAMP ASSOC.	29
B.	Covenants Running with the Land	29
1.	Scope and Termination	29
RESTE REALTY CORP. v. COOPER (nj 1969)	29
2.	Implied Warranty of Habitability	30
HILDER v. ST. PETER (VT, 1984)	30
C.	Homeowner's Associations	31
1.	Kiss of the Condo Owner	31
D.	Gated Communities	31
1.	Serene Fotress	31

I.	Introduction
A.	General Concepts
Property is generally conceived of as a "bundle of rights"
			Outline Section 01.A.00 98.09.08  pp. 

	Notes:	All property is divided into two categories:
		1. REALTY - The earth and everything that is material and affixed to it, either artificially or naturally.
		2.PERSONALTY - Everything Else
		   - Intangible (property you can't touch)
		   - Tangible Property Patents, copyrights, trademarks.
		
		Property is obtained through
		1. Creation
		2. Discovery
		3. Taking It

II.	Possession
A.	Definitions
			Outline Section 02.A.01 98.09.09  pp. 

	Notes:	BAILEE: Person in possession without title.
		CONTROL: Unclear rights, no title.
		CONVERSION: taking and using someone else's property without their permission. Action for damages.
		EJECTMENT: Action to recover possession of land.
		OWNERSHIP: Irrevocable LEGAL right to property (only as good as the law).
		POSSESSION: Physical control and an interest the law will protect.  A possessor prevails against all but the true owner.
		REPLEVIN: Action to recover possession of chattel/personal property.
		TRESSPASS: An unlawful interference with someone's person, property or rights.
		TRESSPASS ON CASE: Action brought for recovery of damages for an injury to a person as a result of the indirect consequences of another's act.
		TROVER: Wrongful conversion.

III.	Acquisition
A.	First Possession
1.	Creation - News
	INTERNATIONAL NEWS SERVICE v. ASSOCIATED PRESS
			Outline Section 02.A.02.a 98.09.08  pp. 30.SU

	Notes:	ACQUISITION BY CREATION: If you create something, then that something is most likely yours to exploit.  This theme is dervied from John Locke who reasoned that one owns the fruits of ones labour in consequence of having "a property in your own person."
		
		Doctrine of Accession: When one adds his/her labour to the property of another i.e. mixes their labour with a natural resource. (A adds labour to B's raw material).  Generally, B is given possession of the final product, unless A's labour sufficiently increased the value of the property, in that case A gets possession but must pay B the value of his/her original raw material property.  The distinction is made depending on whether A new of B's rightful ownership - A only has remedy if he/she acted under a good faith belief that he/she owned property.

	Baird, The legacy of INS v. AP
			Outline Section 02.A.02.b 98.09.08  pp. 62.CB

2.	Creation - Silk Scarfs
	CHEYNEY BROS. v. DORIS SILK CORP.
			Outline Section 02.A.02.c 98.09.08  pp. 60.CB

3.	Creation - Perfume
	SMITH v. CHANEL
			Outline Section 02.A.02.d 98.09.08  pp. 63.CB

4.	Creation - Legislation
	Common Law
			Outline Section 02.A.02.e 98.09.08  pp. n1&2,63.CB

5.	Capture - Fox
	PIERSON v. POST (1805)
Noxious Fox; Wild Animals (Ferae naturae)
			Outline Section 02.A.03.a 98.09.09  pp. 19.CB

	Facts:	Post was hunting a fox when Pierson (aware of Post's persuit), killed and carried off the fox.
	Issues:	Post claimed that Pierson interfered with his right to hunt and capture the fox.
	Rule:	Mere pursuit of wild animal with an intent to capture does not constitute ownership.
	Holding:	Property in wild animals is acquired by occupancy only, and pursuit alone does not constitute occupancy.
	Rationale:	Mortally wounding an animal will show occupancy, but here, Post only shows pursuit.  If pursuit only were enough, it would open the floodgates of litigation.
	Policy:	Court looked at Justinians (codified law) for appreciation of custom and social policy.
	Notes:	Owning the land the animal is on only satisfies possession against a trespasser who goes on land to take animal (landowner is said to have constructive possession).
		
		Wild animals (Ferae naturae) must be captured to be owned.  Mere chase is not sufficient, and the owner of land does not automatically own the wild animals on it.  Mortally wounded or trapped animals generally are treated as captured.

6.	Capture - Whaling
	GHEN v. RICH (1881)
Whaling Custom
			Outline Section 02.A.03.b 98.09.09  pp. 26.CB

	Facts:	Ghen, a whaler, killed a whale in open waters.  Whale washed up on shore and was found by Ellis, who sold it to Rich.  Ghen's identifying harpoon was still in whale when found - customary for finder to report finding to Provincetown (whaling capital).

	Rule:	When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer.
	Holding:	By trade custom (the identifying harpoon), Ghen placed the whale under sufficient control so that it became his property.
	Rationale:	While customs can not set aside law, they do inform the law and can be enforced when they are embraced by an entire industry for a long time.  This custom was necessary for the survival of the whaling industry, which was at the time a societal interest.

	Melville, Moby Dick
Fast-fish/loose-fish
			Outline Section 02.A.03.c 98.09.09  pp. 38.SU

	Fast-fish/loose-fish
			Outline Section 02.A.03.d 98.09.09  pp. n2,29.CB

7.	Capture - Water & Gas
	Fugitive Resources
			Outline Section 02.A.03.e 98.09.09  pp. n,36.CB

	Notes:	Analogies to the capture of wild animals are made when courts have to deal on a non-statutory basis with a "fugitive" resource that is being reduced to property for the first time.  A fugitive resources is similar to a wild animal in that it may escape as easily as it is captured.
		
		OIL AND GAS: Oil or gas under the land of A might migrate to under the land of B as the result of natural circumstnaces or because B drops a well and mines a common pool.  Resources may even have been put in the pool by A i.e. reinjection.  A is likely to sue to recover the value of the gas or oil taken by B.
		- Oil/Gas belongs to the owner of the land directly above as long as it is on or in the land.
		- When they escape, and go into other land, or come into other land, or come into another's control, the title of the former owner is gone.  Thus the resources are fugative.
		- If an adjoining, or even distant owner B drills on his own land and taps A's gas, so that it comes into B's well, and under his control, it is no longer A's.
		
		WATER: Rules regarding water vary in different geographical regions.
		a. Ground Water: Some states followed the ENGLISH RULE - whoever first captured the water owned it.  Other states followed the AMERICAN RULE of reasonable use - same as English Rule with the addition that wasteful uses of water that harmed neighbours was unlawful.  Today groundwater extraction is regulated.
		b. Surface Water: In Western States (where water is scarce), resource is allocated by prior appropriation.  Person who first captures it and puts it to reasonable and beneficial use has a superior right to later appropriators.  Eastern states (where water is abundant) use riparian rights.  Each owner of land along a water source has a right to use the water.

8.	Capture - Resources
	Llewellyn et al., The Cheyenne Way
Wild Horses
			Outline Section 02.A.03.f 98.09.09  pp. 39.SU

	Demsetz, Toward A Theory of Property Rights
			Outline Section 02.A.03.g 98.09.09  pp. 40.CB

	Notes:	A. Property Rights: instrument of society.  Help us form expectations about how we will deal with others.
		   1. Having property rights means you have society's permission to act in particular ways and you expect the community to back you up.
		   2. Property rights convey the right to harm or benefit and specify how you may be harmed or benefitted and who must pay whom to modify these actions.
		B. Externality:
		   1. Nothing is external to the world.  Someone somewhere is always harmed or benefitted by a harmful or beneficial effect.
		      Externality exists whenever X does something without taking into account all of the effects because they fall on others (external to X).
		      Externalities cause resources to be misused because they ar used one way when another way would make society better off.
		   2. Things remain externalized when the cost of bringing the decision to bear on one or more people is too costly to be worthwhile.  (Trying to organize a whole community against a big company for minimal gains)
		C. Internalizing: The process that occurs through changes in property rihgts that enable the effects to bear more on all of the interacting persons.
		D. Purpose of Property Rights: to achieve a greater internalization of externalities.

	Externalities
			Outline Section 02.A.03.h 98.09.09  pp. n,47.CB

	Notes:	Externalities exist whenever some person makes a decision about how to USE RESOURCES WITHOUT TAKING FULL ACCOUNT OF THE EFFECTS (COST OR BENEFITS) of the decision as they FALL UPON OTHERS.  As a consequence of externalities, resources tend to be misused or misallocated - which is to say used in one way when another way would benefit all of society

9.	Capture - Commons
	Hardin, Tragedy of the Commons
Cattle at Pasture
			Outline Section 02.A.03.j 98.09.09  pp. 40.SU

	Notes:	(Misuse or destruction of the environment)
		Defined: Happens because each communal owner has an economic incentive to make unlimited use of the commons when unlimited use will ultimately lead to the destruction or exhaustion of the communally held resources.
		cf. Coase's Theorem

10.	Discovery
	JOHNSON v. M'INTOSH (1823)
Transfer of Indian Title vs U.S. Grant
			Outline Section 02.A.04.a 98.09.18  pp. 3.CB

	Facts:	Johnson claimed valid title to land granted him by Indians.

	Rule:	The discovery of the Indian occupied lands vested absolute title in the discoverers, and rendered the Indian inhabitants incapable of transferring title.
	Holding:	Native Americans had no right to transfer title even though they had the right to occupy the land.
	Rationale:	This principle has always been recognized by European nations - because this is the way it is, this is the way it must remain.  Also, absolute title can not exist at same time in different governments over the same land.  It would be incompatible to vest sovereign title in Indians as a distinct nation and country - therefore they are merely occupants.

	Notes:	Discovery gave the government an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and also a right to such a degree of sovereignty as the people would allow them to exercise.

11.	Discovery - Space
	McDougal, et al., "Law and Public Order In Space"
Colonization
			Outline Section 02.A.04.c 98.09.18  pp. 41.SU

	"The Man Who Sold The Moon"
Land, Sea, Air
			Outline Section 02.A.04.d 98.09.18  pp. 51.SU

B.	Subsequent Possession
1.	Finders
	AMORY v. DE LAMIRIE
Chimney Sweep's Boy's Stone
			Outline Section 02.B.01.a 98.09.21  pp. 100.CB

	HANNAH v. PEEL
Gwenhaylod House Broach
			Outline Section 02.B.01.b 98.09.21  pp. 103.CB

	MC AVOY v. MEDINA
Customer vs Barber over Pocketbook
			Outline Section 02.B.01.c 98.09.21  pp. 110.CB

C.	Adverse Possession
	Theory and Elements of Adverse Possession
			Outline Section 02.B.02.a 98.09.23  pp. 117.CB

	Notes:	- Speaks to disfavour placed on absentee ownership: rests upon the social judgments that there should be a restricted duration of "aging claims" and reasonable time should assure security to person claiming to be an owner.
		- Favours the productive use of land.
		- Law protects possession, sometimes to the point where it is more important than ownerhsip.
		- Successful Adverse Possession grants new ownership, cuts off any claims against new owner by old owner.
		- Before statute of limitations runs, Adverse Possessor has all the rights of a possessor against anyone except the true owner.
		- New title can be transferred like any other title, but cna't be recorded until action to quiet title is filed against former owner.

		ELEMENTS OF ADVERSE POSSESSION *********************************************************
		Adverse Possession must be:
		1. OPEN AND NOTORIOUS - visible so as to give reasonable notice to true owner and others.
		2. CONTINUOUS - uninterrupted for the statutory period.
		3. EXCLUSIVE - as against the true land owner in claim of right or colour of title
		   - CLAIM OF RIGHT means the adverse possesor is acting against the interests of the true owner (state of mind)
		   - COLOUR OF TITLE is a claim founded on a written instrument or a judgment or decree that is defective or invalid in some way.
		   - A minority of jurisdictions require an actual colour of title.
		4. ADVERSE/HOSTILE to all others - acting as true owner and against the true owner without the permission of the true owner.

2.	Right of Title; Colour of Title
	VAN VALKENBURGH v. LUTZ
"...And I would have gotten away with it too if it weren't for those darn kids."
			Outline Section 02.B.02.b 98.09.23  pp. 120.CB

	History:	Lutz obtained a judgment granting him a right of way perscription over a tract of land he used to access his lot and then established title to the tract by Adverse Possession.  VV appealed.
	Facts:	In around 1912, Lutz who had purchased a remote lot of land traveled on a tract of land to get to his own lot.  He built a shed and kept a garden on the vacant tract.  In 1937 VV's children (a new neighbour) were chased out of the vegetable garden on the vacant lot by Lutz.  In 1947 VV purchased the tract and demanded Lutz vacate.  At that point Lutz had been adversely occupying the vacant lot for over 25 years.  But the courts did not seem to favour him following his alteraction with the VV children when he chased them away with a stick.

	Rule:	In New York, Adverse Posseession must be under claim of title (New Jersey/Conneticut Good-Faith Doctrine vs. Maine Wrongful Intent Doctrine).  Title to a parcel may exist in an adverse possessor who occupies it under colour of title, encloses it, improves or cultivates the parcel, and maintains this for a statutory period.
	Holding:	Lutz lost because court felt he did not satisfy these elements of Adverse Possession.  Lutz admitted that he did not own the land he built the shed on.
	Rationale:	DISSENT: He did satisfy elements - the fact that Lutz knew he had no title to tract is irrelevant so long as he intended to acquire title in himself, as he did.
	Policy:	Courts probably didn't like Lutz' approach to children since he was charged with assault by VV.  Consequently, they were apt to dismiss his adverse possession.  By the time VV made the purchase, the neighbourhood was becoming a middle class suburb of NYC.  It was probably also felt that Lutz was not making the most efficient use of the land even if he did meet the requirements of the

	MANILLO v. GORSKI
15" of Side Porch
			Outline Section 02.B.02.d 98.09.23  pp. 138.CB

3.	Tacking; Privity
	HOWARD v. KUNTO (1970)
Mis'sed Deeds on the Summer Beach
			Outline Section 02.B.02.e 98.09.23  pp. 143.CB

	History:	Kunto appealed a judgment to quiet title of the land his summer house was built on in the name of the Howards who acquired record title - or so they thought.
	Facts:	Land (summer home) occupied by Kunto was not that to which he had record title, but he and others living around him occupied their lots under colour of title (genuine belief that they were living on their deeded lot).  Successive purchasers, over 10 years, had taken possession over the disputed tract under the same mistaken deed.

	Rule:	Use of seaosnal cottage is sufficient to constitute continuous possession for Adverse Possession where a true owner would use the property in a like manner.  Since successive owners were in PRIVITY (contractual purchase from one to the next) and occupied under COLOUR OF TITLE (thinking that they were granted a true deed which turned out to be inaccurate), then they may TACK or accumulate their adverse possession time between them.
	Holding:	Where several successive purchasers received record title to tract A thinking they were actually getting tract B (and they continuously occupied the tract) there was sufficient privity of estate to permit tacking and thus establish Adverse Possession as a matter of law.
	Rationale:	The deed running between parties purporting to transfer land traditionally established the privity of estate that connects the possession of successive occupants.  Use of seasonal cottage during only that season is uninterrupted possession sufficient to establish Adverse Possesion.
	Policy:	Courts like true owners.  Courts also like possessors.  It fell within the public interest to preserve the status quo in this case i.e. acknowlegding a mistake in the original survey.

4.	Disability of True Owner
	Improvements & Encroachments; Disability; Adverse Possession Against the Government
			Outline Section 02.B.02.f 98.09.23  pp. n,149.CB

	Notes:	IMPROVEMENTS AND ENCROACHMENTS:  If an Adverse Possessor is discovered and the true owner reenters the land before the statutory period, the adverse possessor has no entitlement to any improvemnts on the land.  Some jurisdictions will permit recovery for the value of the improvemnts or the return of the actual improvements.
		
		DISABILITIES:  For the true owner against whom one makes a claim of adverse possession, most jurisdictions permit certain restrictions against the running of the statute of limitations in favour of the true owner.  If the true owner has a disability i.e. is a minor, insane, imprisoned or out of the state then the statute of limitations can not run.  Such disabilities are immaterial unless they exist at the time when the cause of action accrued.
		
		ADVERSE POSSESSION AGAINST THE GOVERNMENT:  It is not possible to enter a claim of adverse possession against the government.  A subset of Sovereign Immunity Doctrine bars against such claims.  The state owns land in trust for all people and all land owners are granted their claim of title because the state permits it.
		
		ABANDONMENT/REENTRY: Intentional relinquishment of possession ends Adverse Possession as does the reentry of a true owner.

5.	Gifts
	GRUEN v. GRUEN
Father's painting w/o Stepmother's blessing
			Outline Section 02.B.03 98.09.23  pp. 178.CB

D.	Self-Possession
1.	People as Property
	Williams, Alchemical Notes
Foxes and Slaves lack ownership of self
			Outline Section 02.C.01.a 98.10.05  pp. 52.SU

E.	People as Property
	Allen, Surrogacy, Slavery and the Ownership of Life
Polly's daughters
			Outline Section 02.C.01.b 98.10.05  pp. 54.SU

	ROBIN v. HARDAWAY
Acts of Assembly (of Slaves)
			Outline Section 02.C.01.c 98.10.05  pp. 55.SU

	Soifer, Status, Contract and Promises Unkept
Betty's Case
			Outline Section 02.C.01.d 98.10.05  pp. 59.SU

2.	People Parts
	MOORE v. REGENTS OF THE UNIVERSITY OF CALIFORNIA (1991)
Hairy Cell Leukemia Cell Line
			Outline Section 02.C.02.a 98.10.05  pp. 66.CB

	History:	Review of action seeking damages for conversion, fraud, and breach of fiduciary duty.
	Facts:	Researchers at UCLA, without Moore's knowledge, used specimens of his tissue to produce a lucrative cell line.

	Holding:	A person whose tissue is used for profitable research and development without his knowledge may not maintain a conversion action to recover for misappropriated property.
	Rationale:	To do so, a plaintiff must prove interference with ownership or right of possession.  A person's tissue is not property which can be transfered for a profit.  Health and Safety code reinforces this view.  An extension of the existing conversion law would be necessary to allow Moore to recover.  Court declined to allow Moore's claim because:
		1. It would stifle research efforts;
		2. Fiduciary duty principle protects patient, conversion action unnecessary. (Moore won on fiduciary duty; and
		3. Subject better left to legislature i.e. Institutional Competency Argument.
	Policy:	Current conversion law should be extended to cover body tissue.  To allow a person no consensual use of another's tissue is a modern version of Slavery.
	Notes:	This case is an example of the problems of applying traditional legal categories to modern technology.

	FLORIDA v. POWELL
Corneal Transplants from Autopsies
			Outline Section 02.C.02.b 98.10.05  pp. 61.SU

	DAVIS v. DAVIS
Frozen Embryos
			Outline Section 02.C.02.c 98.10.05  pp. 67.SU

3.	Person-Like Property
	"In the Matter of Baby M."
Whitehead vs Stearns
			Outline Section 02.C.03.a 98.10.09  pp. 69.SU

	Williams, Spare Parts, Family Values, Old Children, Cheap
			Outline Section 02.C.03.b 98.10.09  pp. 73.SU

	WANA THE BEAR v. COMMUNITY CONSTRUCTION CO.
			Outline Section 02.C.03.c 98.10.09  pp. 75.SU

	Hellerman, "Talking God"
			Outline Section 02.C.03.d 98.10.09  pp. 76.SU

	Persona
			Outline Section 02.C.03.e 98.10.09  pp. 67.CB

	In Re: Lt. Data
			Outline Section 02.C.03.f 98.10.09  pp. FILM

4.	Right to Exclude
	JACQUE v. STEENBERG HOMES, INC.
			Outline Section 02.C.04.a 98.10.14  pp. 86.CB

	Notes:	RIGHT TO EXCLUDE: Essence of private property is the right to exclude others.  Certain exceptions have been granted, most notably as of late, where civil rights and 1st amendment rights conflict with the individual's right to exclude.
		1st Amendment Rights - Supreme court has held that the 1st amendment rights do not trump right to exclude i.e. shopping mall owners do not have to allow individuals to pass out pamphlets etc.  However, the courts have held that states have the right to broaden the constitutional right, certain states have therefore held that 1st amendment rights trump private ownership rights and that solictors in shopping centers are protected under state guaranteed free speech.

	STATE v. SHACK
Medical and Legal Aid are rights of migrant workers
			Outline Section 02.C.04.b 98.10.14  pp. 87.CB

	Facts:	Tejeras and Shack entered upon privately owned farm against the orders of the owner of that property to provide health and legal aid to migrant farm workers employed and housed there.

	Holding:	An owner of real property does not have the right to exclude all others from that property if by so doing, he prevents invitees (migrant worker) from right to consort.
	Rationale:	Necessity may justify the entry upon the lands of another. Based on the notion that property rights serve human values - necessity of effective communication of legal rights and medical services for migrant farm workers justifies entry.

	Notes
			Outline Section 02.C.04.c 98.10.14  pp. n,93.CB

IV.	Property Interests Allocation
A.	Possessory Intersts
1.	Feudal Estate System
	The History of Feudalism and the Estate System
Va fecher la vache - Go get the cow.
			Outline Section 03.A.01 98.10.19  pp. 185.CB

	Notes:	- There are four types of estates: FEE SIMPLE, FEE TAIL, LIFE ESTATE, AND LEASEHOLD.
		- Generally, keep RESTRAINTS ON ALIENABLILITY in mind

		HISTORICAL BACKGROUND:
		
		  In 1066 William the Conqueror introduced into England the system of feudal tenure.  All land flowed from the king via grants for service and was held under a superior through a system of mutual obligation.
		  Those who held land directly from the king were TENANTS IN CHIEF.  These lords had SIESIN and direct relationship to the king.  The burden of providing military service led tenants in chief to grant land to SUB-TENANTS who had an obligation to provide knights to the lord.
		THE FEUDAL LADDER:
		  William, after claiming all lands as his, proceeded to give it out to his chief supporters who became his TENANTS IN CHIEF. In exchange for land, each tenant in chief agreed to render the king special services such as providing 40 nights a year to fight for the king.  Each tenant in chief parceled out portions of his acreage to SUBTENANTS - extracting from each of these SUBTENANTS a promise to render services.  The subtenants might then SUBINFEUDATE to another tenant and extract services from him.
		1. FEUDAL RELATIONSHIPS: Under the feudal system, each man, save the king, was made inferior to someone else.  Each TENANT was the VASSEL of some LORD.
		2. SUBINFEUDATION: The process of creating another rung in the feudal ladder below the particular tenant was called subinfeudation.
		
		FEUDAL SERVICES: Services, reserved by the contract of subinfeudation, were the feudal equivalent of taxes.
		
		FEUDAL INCIDENTS: Feudal incidents were, like services, a form of taxes.  They were due on a number of occasions but principally when the tenant below died.  The great difference between services and incidents was that services were fixed rents i.e. ten fat hes but when incidents were due, the lord got possession of the land back.  Incidents included the following:
		1. ESCHEAT:  If a tenant died without heirs, the tenants position in the feudal ladder was eliminated and possession of the land reverted back to the lord.
		FORFEITURE: If a tenant was convicted of a crime, the lord was able to reclaim the land.
		WARDSHIP AND MARRIAGE: These affected only minor heirs.  The lord was entitled to manage the tenant's lands for his own profit until the minor heir was of age.  Plus, the lord would also get to sell the minor heir into marriage.
		AIDS: In a financial emergency, a lord could demand help from his tenants.
		DEVALUATION BY SUBINFEUDATION: (Taxes Lost by Subinfeudation) - Subinfeudation devalued the feudal incidents, and was opposed by the top lords who had all to gain by the incidents imposed upon the tenants below.  Subinfeudation made the incidents less valuable... because by interposing another tenant between the lord and the tenant in possession, when the incidents were due, the lord did not get possession which was the value of the thing.  The lords could always cash in on feudal services, like military services, but subinfedation cased him to lose many of the feudal incidents, including the most important one of all, the right to reclaim the land.
		
		1295 STATUTE OF QUIA EMPTORES
		1. Subinfeudation no longer allowed
		2. King ended up with the taxes
		3. Transfer by substitution no longer required the consent of the lord
		4. Land became freely alienable
		Here the lords lobbied to get rid of subinfeudation so as to hold on to their fedal incidents, but the price they paid was that tenants could now substitute without their consent - so that the old way was restored (lords got their incidents and aids back).  The major shift was that land had become alienable for the tenants.  This was the beginning of the end of feudalism as people were no long subordinated to the land. After Quia Emptores, the relationship between lord and tenant became basically an economic one!

2.	Fee Simple Absolute
O conveys WA to A [and A's heirs].
			Outline Section 03.A.02 98.10.19  pp. 199.CB

	Ad Partes:	O - Grantor of Estate; A - Grantee; WA - Whiteacre.

	Facts:	O conveys WA to A.
	Issues:	Creation/Grantor's Intention; Duration; Restraints/Limitations Of Use, Of Alienability, Of Parties; Termination; Policy Interests?

	Notes:	This is the truest absolute conveyance.  By adding the condition, [and A's heirs], the Fee Simple Absolute becomes a Fee Tail.  A Fee Simple Absolute gives the grantee, A, complete and unconditional (within the bounds of the law) rights of ownership to the estate, WA, potentially forever. There are no restraints or limits.  No right of inheritance exists while O is living.

3.	Fee Tail
O conveys WA to A and the heirs of A's body.  Title always reverts to PRIMOGENITORY heir upon death of grantor.
			Outline Section 03.A.03 98.10.21  pp. 205.CB

	Ad Partes:	O - Grantor; A - Grantee, Primogenitory heir of O; WA - Whiteacre.

	Facts:	O conveys WA to A and the heirs of A's body. (Historically, language was very specific. Now, "to A and A's heirs" suffices where still permissible).
	Issues:	Creation/Grantor's Intention; Duration; Restraints/Limitations Of Use, Of Alienability, Of Parties; Termination; Policy Interests?
	Rule:	Expires when O and all decendents are dead.

	Rationale:	Historically, rich families wanted to prevent land from leaving family line i.e. to remove the land from the stream of commerce or make it INALIEABLE.
	Policy:	A fee tail inhibits ALIENABILITY of the land.  The effect of this is to remove incentive to develop the land especially for creditors who would have to risk being defrauded of a mortgage for example.
	Notes:	In U.S., only Delaware, Maine, Massachusetts, and Rhode Island still allow the creation of a Fee Tail.

4.	Life Estate
O conveys WA to A for life [remainder to A's heirs].
			Outline Section 03.A.04 98.10.23  pp. 210.CB

	Ad Partes:	O - Grantor; A - Grantee; WA - Whiteacre.

	Facts:	1. O conveys WA to A for life; 2. O conveys WA to A for life, remainder to A's heirs.
	Issues:	Creation/Grantor's Intention; Duration; Restraints/Limitations Of Use, Of Alienability, Of Parties; Termination; Policy Interests?
	Rule:	In (1), Grantor retains reversionary future interest.  In (2), A's heirs receive remaining future interest in property after A's death.  There is always a future interest with Life Estates.

	Policy:	Today most Life Estates are created in Trust.  The property is (typically) managed by a bank (corporate person) for the benefit of the Life Tenant.
	Notes:	A may convey the land to B who will have an interest only for the life of A (pur autre vie).  A Life Estate lasts for the lifetime of the grantee and then reverts or is passed onto the remainder persons.  A can not waste the land or use the property in a manner that 'unreasonably' interferes with the expectations of the future interest persons.  Property interest can not be alienated by A alone.  To alienate property, A must seek permission of the future interest parties, whether they be reversionary persons or third party remainder persons.

	WHITE v. BROWN, 559 S.W.2d 938 (1977)
Evelyn White to have my house to live in and 'not' be 'sold': Fee Simple. Not a Life Estate.
			Outline Section 03.A.04.a 98.10.23  pp. 210.CB
	Claimant:	Mrs. Evelyn White (sister of decedant) and Ms Sandra White Perry (niece of same)
	Respondant:	Brown Family - Heirs of Jessie Lide

	History:	Chancellor court held that will passed a life estate but not the remainder
	Facts:	Jesse Lide's will reads, "I wish Evelyn White to have my home to live in and 'not' to be 'sold'."
	Issues:	Is this conveyance a Fee Simple or a Life Estate?
	Rule:	Fee Simple: An absolute conveyance of all property rights in the home, including the right of alienability.  Life Estate: Gives the grantee a limited property right for the grantee's lifetime.  The grantee will not be able to alienate the estate without permission from the future interest persons.  NB: A Fee Tail is not considered because it is abhorred by the law as it removes property from the stream of commerce making it inalieable.
	Holding:	Mrs. Lide's will passed a fee simple absolute in the home of Mrs. White. Reversed and remanded to Chancery Court.

	Policy:	EFFECTS OF RESTRAINTS ON ALIENABILITY: 1. Make property unmarketable; 2. Perpetuate concentration of wealth; 3. Restraints discourage improvements on land; 4. If a mortgage is acquired and the owner defaults, creditors can not reach the property.
	Notes:	TYPES OF RESTRAINTS: Disabling Restraints: No Power of transfer; Forfeiture Restraints; Attempts to transfer by grantee result in forfeit of property rights to another party; Promissory Restraints: On pain of damages or injunction, grantee promises not to transfer his or her interest.  Absolute restraints on a fee simple are usually void.

	BAKER v. WEEDON, 262 So. 2d. 641 (1972)
Anna, widow of John, wishes to sell entire property to sustain herself.  She is prevented from doing so for waste's sake.
			Outline Section 03.A.04.b 98.10.23  pp. 219.CB

5.	Defeasible Fees
Based on a Fee Simple Absolute with the property rights allocation contingent on some future event.
			Outline Section 03.A.05 98.10.19  pp. 229.CB

	Policy:	Limiting conditions may no longer be discriminatory based on race or ethnicity.
	Notes:	CATEGORIES OF DEFEASIBLE FEES:
		- Fee Simple Determinable: If condition of conveyance is not maintained by grantee, then property automatically reverts to grantor (or heirs of grantor) / future interest person.
		A Covenant is a promise by the grantee that a specified act will or will not be performed.  If breached, the grantee may be sued for an injunction or damages.  Defeasible fee conditions are more onerous (absolute loss in balance)
		- Fee Simple Subject to Condition Subsequent: If condition of conveyance is not maintained by grantee, then grantor (or heirs of grantor) may exercise right of re-entry.  If grantor chooses otherwise, grantee may continue to occupy property.  Right of re-entry is not automatic.
		- Fee Simple Subject to Executory Limitation: If condition of conveyance is not maintained by grantee, then property is automatically diverted to a third party.  Conditions may demand pre-grant limitations upon grantee i.e. O conveys WA to A on condition x, otherwise WA to B.

6.	Fee Simple Determinable (FSD)
O conveys WA to A so long as no alcohol is sold on WA.
			Outline Section 03.A.05.a1 98.10.28  pp. 229.CB

	Ad Partes:	O - Grantor; A - Grantee; WA - Whiteacre.

	Facts:	O conveys WA to A so long as no alcohol is sold on WA.
		Traditional language of conveyance: "as long as", "so long as", "while", "during", "until", "unless", etc.
	Issues:	Creation/Grantor's Intention; Duration; Restraints/Limitations Of Use, Of Alienability, Of Parties; Termination; Policy Interests?

	Notes:	The condition, "so long as no alcohol is sold on WA," may be intended to control the grantee's actions or it may apply only to the property itself.  If the condition is breached, then property automatically reverts to the grantor.  There is always a future interest person who is most often the grantor, O, or O's heirs.

7.	Fee Simple Subject to Condition Subsequent (FSSCS)
O conveys WA to A provided that no alcohol is sold on WA.
			Outline Section 03.A.05.a2 98.10.28  pp. 229.CB

	Ad Partes:	O - Grantor; A - Grantee; WA - Whiteacre.

	Facts:	O conveys WA to A provided that no alcohol is sold on WA.
		Traditional language of conveyance: "provided that", "on condition", "but if", etc.
	Issues:	Creation/Grantor's Intention; Duration; Restraints/Limitations Of Use, Of Alienability, Of Parties; Termination; Policy Interests?

	Notes:	If the condition of conveyance is not maintained, then termination of the conveyance does not happen automatically but instead the grantor gains the power of termination, an entitlement to re-enter and retake the premises. The condition, "provided that no alcohol is sold on WA,"
		FSSCS & ADVERSE POSSESSION: Is A able to claim adverse possession if A has continued to sell alcohol on WA for over 20 years without re-entry by O?  What Issues arise?  What about for FSD if statute of limitations starts running on reverter as soon as FSD ends?

8.	FSD or FSSCS
	MAHRENHOLZ v. COUNTY BOARD OF SCHOOL TRUSTEES, 417 N.E.2d 138 (1981)
Distinguish between FSD and FSSCS regarding the conveyance of property to a school board and then to a private party.
			Outline Section 03.A.05.b 98.10.30  pp. 231.CB
	Claimant:	Mahrenholz
	Respondant:	School Board
	Ad Partes:	Huttons - deed property to school board; Harry Hutton - son/heir; Jacqmains - intermediary owner's

	Facts:	- March 1941 Huttons deeded 1 1/2 acres to the School Board on condition that "this land to be used for school purposes only, otherwise to revert to Grantor herein."
		- July 1941 Huttons convey 38 1/2 acres to Jacqmains.  Jacqmains' deed from Huttons included an invalid reversionary interest clause (by statute, reversionary interest can not be conveyed).
		- October 1959 Jacqmains deeded 38 1/2 acres to Betty Mahrenholz.
		- 1973 School Board stopped using lot for school and instead used it for storage
		- Sept 6, 1977 HH disclaimed his interest in 1 1/2 acre school lot in favor of Defendant.
		- Sept 7, 1977 HH conveyance of 1 1/2 acre school lot recorded on May 7, 1977 to Plaintiffs was filed with recorder's office.
	Issues:	Was the deed a FSD or FSSCS?  Was the act of HH's conveyance to Mahrenholz in 1977 an act of re-entry sufficient to meet FSSCS standard?
	Rule:	Given that the School Board was no longer using the lot for 'school purposes', if the deed was FSD, it reverted to HH in 1973.  If the deed was FSSCS then HH need to re-enter to re-acquire property.
	Holding:	If read, "only as long as" then temporal element of phrase is evident and it shows that grantors intended to create a FSD followed by a possiblity for reverter.  Court holds trial court erred in dismissing Plaintiffs' complaint.  Reversed and Remanded.
	Rationale:	The reversionary right of the grantor is non-transferable by will (it is inheritable though) or by conveyance.  Statute voided this clause of the Jacqmains' deed.
		Plaintiff argues that the word "only" should be construed as a limitation rather than a condition. Defendants respond that where ambiguous language is used in a deed, the courts prefer a FSSCS.

	Notes:	PAY ATTENTION TO HOW COURTS DETERMINE USE AND RESTRAINTS ON USE.  Reversionary right and right of re-entry are inheritable but not typically transferable.

9.	FSSCS or Absolute Restraint
	MOUNTAIN BROW LODGE N0.82 IND. ORDER OF ODD FELLOWS v. TOSCANO, 64 Cal. Rptr. 816 (1968
How restrictive can the language of an FSSCS be without infringing on right of alienability.
			Outline Section 03.A.05.c 98.10.30  pp. 240.CB
	Claimant:	Mountain Brow Lodge, Appellant
	Respondant:	Toscano

	Facts:	Habendum clause of deed reads:
		Said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by a second party or in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns.
	Issues:	Appellant Lodge says language restrains its power of alienation and is void.  Appellee Toscano says its a FSSCS.  Is it too restrictive?
	Rule:	Habendum clause is an absolute restraint against alienation and is void as per common law Civil Code sec. 711, "Conditions restraining alienation, when repugnant to the interest created, are void."  Absolute restraint can not affect condition of land use.
	Holding:	Change language of deed to omit restriction on sale or transfer and only to include restriction on use: Conveyance to Lodge, "subject to condition that said property is restricted for the use and benefit of the second party only; and in the event the same fails to be used by the second party the same is to revert to the first parties herein, their successors, heirs or assigns.
	Rationale:	No absolute restriction on alienability.  Modification simple narrows lodge's entitlement to use and reverts alienability to Appellee Toscano.  Generally, courts will void restraints on alienability because they remove property from stream of commerce

	Notes:	PAY ATTENTION TO HOW COURTS DETERMINE USE AND RESTRAINTS ALIENABILITY.
		FACTORS INDICATING IMPERMISSIBLE ABSOLUTE RESTRAINTS ON ALIENABILITY:
		1. Remedy Involved - If the restriction is a covenant then an injunction or damages is the remedy i.e. cease or desist vs. an unpopular complete forfeiture; 2. Restrictions on Numbers of Buyers - The lodge would have to continue on land and buyer would have to become owner of land with lodge on it; 3. Whether the restriction is justified because it benefits the land (for conservationists); 4. If restraint discourages improvements or if their is a risk of forfeiture, buyer will unlikely invest their wealth in property - discouraging flow of commerce.
		EXCEPTIONS: Courts hesitate to interfere with Gifts to Charities and within Families, to Religions, Literary, Arts, Science, and Perservation/Historical societies.

10.	Conclusion
Review of Boiler Plate Analysis; Emminent Domain; Valuation Rule; and Law of Waste
			Outline Section 03.A.06 98.10.30  pp. 

	Rule:	SUPPLEMENTARY RULES:
		Emminent Domain:  When emminent (government) domain brings about a breach of a condition, the future interests automatically reverts to the future interest person.
		Valuation Rule:  When a property asset is to be liquidated and the proceeds divided amongst the parties with an interest, the property must be examined to determine the value of the property for the grantor, grantee, and any remainder persons or reversionary interests (Common for determining remainder persons' interests in contrast to life estate interest).
		Law of Waste:  A has a life estate and B is the remainder person.  A should not be able to use the property in a manner that unreasonably interferes with the expectations of B. 'Affirmative Waste' arises from voluntar acts.  'Permissive Waste' arises from a failure to act (negligence).  'Ameliorative Waste' is typified by mining or natural resources extraction which is profitable but which also substantially alters the property.

	Notes:	BOILER PLATE ANALYSIS: (Consider all of the following when attempting to determine the nature of the conveyance):
		1. Creation/Grantor's Intention; 2. Duration of conveyance; 3. Restraints/Limitations Of Use, Of Alienability, Of Parties; 4. Termination Conditions- Abhor forfeiture; 5. Policy Interests?
		Note Also that if there is a conflict on whether a conveyance is a FSD or a FSSCS, the courts will typically side with FSSCS.  Resolution of ambiguities tend to favour the larger estate interest. Why?

B.	Concurrent and Familial Interests
1.	Common Law
			Outline Section 03.B.01 98.11.02  pp. 321.CB

	Notes:	TENANCY IN COMMON (CO-TENANTS)
		1. Each tenant is an owner of an undivided share of the real property.
		2. No survivorship right exists: when one tenent dies, his/her heirs take it over, it does not go to the suriving tenant(s)
		3. Presumption of a tenancy in common: when land is devised to two or more people there is an assumption in the court of law that a tenancy in common is formed unless it expressly states otherwise in the granting deed.

2.	Severance of Joint Tenancies
			Outline Section 03.B.02 98.11.04  pp. 327.CB

	Notes:	JOINT TENANCY:
		1. Owners of undivided shares in land.
		2. There is survivorship rights in the other tenants - when one dies the other becomes sole owner.\3. FOUR UNITIES OF JOINT TENANCY:
		   a. TIME: Interests must be conveyed at the same time.
		   b. POSSESSION: Each JT has an undivided interest in the whole.
		   c. TITLE: Interest must be created by means of the same instrument i.e. deed.
		   d. INTEREST: Every JT must share the same type and duration of interest in the property.
		
		SEVERABILITY: Each JT has survivorship rights to the remaining whole property over the other JT.  Survivorship is unilaterally (by any one party) destructible at any time.  All that is required is a breach of any unity. i.e. if one tenant conveys her interest to another, then she breaches the unity of title.  If the Joint Tenancy is severed, it automatically becomes a Tenancy in Common.

	RIDDLE v. HARMON (1980)
Self-Reciprocating Conveyances to escape Joint Tenancy - Legal Fictions Permitted
			Outline Section 03.B.02a 98.11.04  pp. 326.CB

	Facts:	Riddle sought to enforce a joint tenancy right of survivorship against the executrix of his wife's estate after his wife had deed herself one half of her joint tenancy interest in the property to herself in order to sever and terminate Mr. Riddle's right to succeed to the whole.
	Issues:	May a joint tenancy be terminated by a conveyance made by one of the joint tenants to herself?

	Holding:	Yes.  At common law, anyone who wanted to sever a joint tenancy had to do so by conveying her half of the property to a straw person who in turn gave it back.  Presently, a joint tenant may terminate by conveying to herself.  No Legally Ficticious Straw Man required.

	Policy:	Forced courts to confront the archane ritual of creating a third party to make and return the conveyance.  Courts may have inferred the value of such an agreement was especially great to married couples, particularly the wife of a pair in a bad situation.

	HARMS v. SPRAGUE (1984)
Joint Tenancy Survivorship Right Prevails Over Mortgage.
			Outline Section 03.B.02b 98.11.04  pp. 332.CB

	Facts:	John Harm is the decesased former joint tenant in property of his brother William Harms.  John had executed a mortgage in favour of the Simmons who later assigned his interest to Sprague.  Sprague claims mortgage interest survived John's death.  William however claims full rights of survivorship in joint tenancy agreement.
	Issues:	Does a mortgage on a joint tenatn's interest survive the mortgagor?

	Holding:	No. In this state, a mortgage does not constitute a change of title and therefore does not disturb the unity of title of the joint tenancy.  Consequently, the joint tenancy remains intact and William retains survivorship rights to the whole property.

	Policy:	It takes a lot to disturb the unity of the title of a joint tenancy.  Even a mortgage isn't strong enough.  Most contracts don't destroy the unity of possession.  Courts favour the true owner.

3.	Tenancy by the Entirety
	SAWADA v. ENDO (1977)
Court action against husband seeks to severe Tenancy in the Entirety and Fails
			Outline Section 03.B.02c 98.11.04  pp. 363.CB

	Facts:	The Sawadas who were injured when struck by a car driven by Endo and unable to get all the money from their judgment against Endo sought to set aside a conveyance by Endo and his wife of some land which had been held by them as tenants in common.
	Issues:	Is the interest of one spouse in real property, held in a tenancy by the entirety, subject to levy and execution by his or her individual creditors absent consent of both spouses?

	Holding:	No. Tenancy by the entirety is an estate held by the husband and wife in single ownership, both and each hold the whole estate.  The tenancy by the entirety is indivisible except by the actions of both spouses.

	Policy:	About half of the states recognize the tenancy by the entirety as valid.  The married woman's property act syas that one spouse alone can't assign his or her interest in property. Thus, creditors can't touch it because they can only reach the property that debtors voluntarily assign.
	Notes:	TENANTS IN THE ENTIRETY:
		1. Type of joint tenancy that may only be created between husband and wife.
		2. Same four unities are required, however, it may not be severed by one person.

4.	Partition
			Outline Section 03.B.03 98.11.06  pp. 340.CB

	Notes:	RIGHTS AND DUTIES OF CO-TENANTS:
		1. OUSTER: Each tenant has the right to full use of the property, if one tenant is using land - and other is not - the one in use is not entitled to pay rent unless the tenant not in use has been ousted.  Ouster is an act which deprived another co-tenant of the right to possession.  Ousted tenants may bring a suit to collect reasonable rent, or to partition property.
		2. MAINTENANCE: General rule is that the tenant who pays to keep up the property is entitled to reimbursement.  This applies to payment of taxes and interest on mortgage.  However, money spent on repairs and improvements is not necessarily reimburseable.  General principle is that the person who spent the money on improvements gets the value of the improvement - upon sale, or in increased rent.
		3. PARTITION: Any co-tenant has the right to bring a suit for partition.  (Not available to tenants by the entirety)
		1. Physical division, Partittion in kind, or
		2. Sell and divide the proceeds.

	SPILLER v. MAC KERETH
Lock on warehouse to protect goods does not constitute ouster
			Outline Section 03.B.03a 98.11.06  pp. 348.CB

	Facts:	Plaintiff and Defendant are tenants in common.  A tenant of the two vacates their warehouse building.  MacKereth writes a letter demanding that Spiller, who uses the vacant space for storage, either get out or pay half the rent value.
	Issues:	Did the trial court err in finding a judgment for MacKereth for rent?

	Holding:	Yes.  In the absence of an agreement to pay rent, it is neccessary to show that ouster has occurred - that one co-tenant has excluded the other from entry into her share.  Here the court decided that no ouster had occurred because there was no evidence that Spiller (who had placed locks on the building) had prevented MacKereth from entering.  In Alabama not responding to the demand letter or changing the locks to protect goods do not constitute ouster.  More was needed for ouster in Alabama.

	Policy:	Depending on whether the court sees both parties as acting amicably, it may lower or raise its threshold for the ouster requirement being met.

	SWARTZBAUGH v. SAMPSON
Honest mame the boxing pavillion is on the up and up!
			Outline Section 03.B.03b 98.11.06  pp. 352.CB

	Facts:	Mrs. Swartzbaugh refuses to agree to a lease between her husband and Sampson, who wishes to take out her walnut trees and build a boxing pavillion.  She wishes to cancel the lease claiming it was void because she didn't participate in it.
	Issues:	Can one joint tenant who has not joined in a lease executed by her co-tenant and a third party maintain an action to cancel the lease where the third party is in exclusive possession of the leased property?

	Holding:	No. The act of one joint tenant without the consent of the other cannot bind or prejudically affect the rights of that tenant, but a lease made by the other joint tenant is not void, but is valid to the extent of theat joint tenant's interest in property i.e. You can give a guy a lease to run a boxing arena without your wife's consent as long as the lease agreement does not serve to divide the property.  It's tough to sever a joint tenancy without expressly doing it.  Thus a lease agreement for part of the land does not interfere with the joint tenant's undivided co-interest in the property.

	Notes:	Historical Postscript: The Swartzbaugh property is now part of the site of the Anaheim Statium, home of the California Angels.

5.	Benefit and Burden
			Outline Section 03.B.04 98.11.09  pp. 348.CB

C.	Landlord and Tenant
1.	Leasehold Estates and Leases
			Outline Section 03.C.01 98.11.16  pp. 419.CB

	Notes:	LANDLORD TENANT:
		Introduction:
		Landlord and Tenant law moves away from pure property law - contract law implied warranty of habitability etc.
		Landlord must keep premises habitable.
		Tenants generally no longer have to pay rent if building is destroyed.
		
		LEASEHOLDS: Leases for more than one year must be in writing
		a. TERM OF YEARS: Fixed period; but can be conditional (date is fixed or computable). Death of Landlord has no effect) has its own termination date, no additional notice required.
		b. PERIODIC TENANCY: Continues from one period to the next unless notice of termination i.e. at end of one year lease automatically restarts another full period (1 year). Death of Landlord has no effect.
		TENANCY AT WILL: No stated duration, can be terminated at any time by either party (if only one party has right to terminate its not a tenancy at will (GARDNER v. GARRISH - Court goes against common law rule and deems lease ambiguous and looks to intent of parties).  Ends if either party dies.
		TENANCY AT SUFFERANCE/HOLDOVER TENANCY: Holdover ends as soon as the landlord exercises his option to either evict the tenant or hold him to new term. Rule: Holdover from term of years equals a year to year tenancy (CRECHALE - Landlord acted like Tenant was a trespasser, then accepted next months rent so this implicitly meant month to month lease; POLLES v. SMITH).

	GARNER v. GERRISH
Lease terminable by tenant only.
			Outline Section 03.C.01a 98.11.16  pp. 421.CB

	Facts:	Handwritten lease said tenant could terminate the lease on the date of his choice.  Original leasor died and new Landlord wished to terminate tenant's lease.
	Issues:	Dispute was over whether or not the tenant's tenancy was terminable at the will of the leasor or the tenant only?

	Holding:	At the will of the tenant only!  Ancient authority held to the contrary (based on feudal notions that a conveyance must be accompanied by a livery of sesin i.e. a clode of dirt to the lord.  Given that these rituals are long gone, leases are to be interpreted based on the will of the parties, not ancient law.

	Policy:	Court examines the actual lease and refuses to declare it a tenancy at will, terminable by an act of either party.  Rather, it looks to the language and determines the intent of the parties!

	CRECHALE AND POLLES v. SMITH
Trespass to Holdover if Landlord accepts rent.
			Outline Section 03.C.01a 98.11.16  pp. 425.CB

	Facts:	Plaintiff, the lessor, alleged that Defendant, the lessee, was liable for back rent as a holdover tenant.  At the end of the lease period, Plaintiff demanded that Defendant immediately quit and vacate.  Later, however, Plaintiff Landlord accepted a rent check from Defendant.  Plaintiff later, filed suit claiming that Defendant had become liable as a hold over tenant for an additional term of one year.
	Issues:	Can a landlord who elects to treat a holdover tenant as a trespasser later elect to hold the tenant liable for a new lease term?

	Holding:	No. When a tenant continues in possession after termination of his lease, the landlord has a choice - treat the holdover as a tresspasser or hold onto him as a tenant.  Once, as in this case, the Landlord elects to treat the Tenant as a tresspasser, the Landlord may not change its choice and hold over the Tenant.  Here, the Landlord refuses to extend the lease to a month to month but then later accepts and cashes the cheque, an act that constitutes acknowlegement of hold over.

	Rice, E., Foundations of Early Modern Europe
			Outline Section 03.C.02 98.11.16  pp. 78.SU

	Up in Smoke / The Expansion of Tenant's Rights
			Outline Section 03.C.03 98.11.16  pp. 80.SU

	Who Are The Renters?
			Outline Section 03.C.04 98.11.16  pp. 81.SU

	Anatomy of a Landlord/Tenant Case
			Outline Section 03.C.05 98.11.16  pp. 82.SU

2.	FHA - Unlawful Discrimination
	STARRETT CITY ASSOCIATES (U.S. v., 1987)
			Outline Section 03.C.06 98.11.20  pp. 434.CB
	Claimant:	U.S.
	Respondant:	Starrett City

	Issues:	Is Defendant's policy and practice of limiting the number of apartments available to minorities in order to maintain a prescribed degree of racial balance a violation of the civil rights act?

	Holding:	Yes.
	Rationale:	The act does not allow the Defendant to use rigid racial quotas of indefinite duration to maintain a fixed level of integration at Starrett.  Unlawful practices include those that are discrimnatory and those that disproportionately affect minorities.
		Defenant's quota system promoted integration policy but contravened the discrimination policy.  No legislative history to go on.
		Quota's not always bad.  But since Defendant's bar access rather than enhance access and since they are far from temporary they do violate the act.

	Notes:	Strongest argument against Starrett is that it is violating the statute.
		Strongest argument for Starrett is that the intent of the statute was not to prevent integration.

		FAIR HOUSING ACT OF 1968 FHA:
		1. Prohibits discrimination in selling or renting based on race, colour religion or national orgin. (Discrimination based on sex was added in 1974).
		2. Exceptions: If Live-In Tenants are sought, owners may discriminate provided that a broker or advertisement is not used as a media showing intent to discriminate.
		3. Burden: Once the Plaintiff has made out a PFC then the burden to refute falls on the landlord.

3.	Subleases and Assignments - Possession
	ERNST v. CONDITT (Tenn, 1964)
			Outline Section 03.C.07a 98.11.23  pp. 465.CB

	Facts:	Plaintiff Earnst leased property to Rogers, who "subleased" the premises to Condit. Rogers retained no interest in the property afterwards.

	Rule:	An assinment arises when a leasee transgers his entire interest under a lease.
	Holding:	Court held that sublease was actually an assignment because Rogers did not retain any interest in the premises.  This meant that Condit was liable for the rent money owed because there was privity of estate between Ernst and Condit.
	Rationale:	When determining sublease vs. assignment, the intention of the parties governs.  The use of the word "sublease" is therefore irrelevant when the intent was for an assignment.
	Policy:	Case could have alternatively been decided under the third party beneficiary rule - where Condit benefited by the sublease, and agreed to the covenants of the lease he would be considered the third party beneficiary and therefore liable to the original lessor, Ernst.  Wouldn't matter as it was a sublease or an assignment.
	Notes:	ASSIGNMENT/SUBLEASES:
		Unless the lease specifies otherwise, a Tenant is free to transfer his/her interest in the property to another Tenant i.e. T2.  This is termed a sublease when Tenant retains some rights to the property i.e. it only transfers property for a period of time shorter than a lease (reversion right).
		An assignment occurs when a Landlord transfers his entire lease to T2.
		1. PRIVITY OF ESTATE: If T assigns his/her leashold then T2 comes into privity of estate with the landlord - meaning that T2 and the Landlord are liable to each other for the original lease.  If T subleases then T and T2 are in privity of estate.
		2. PRIVITY OF CONTRACT: Privity of contract occurs between any two individuals who enter into a contract with each other resulting in their mutual obligation/liability.  If T subleases or assigns to T2, he/she is still in privity of contract with, and therefore liable to, the Landlord. i.e. if T assigns to T2 then the Landlord could go after T2 on privity of estate and T on privity of contract.
		3. NOVATION: T can escape obligation to pay rent if Landlord releases him/her from the contract.  One cannot infer a release merely because Landlord agrees to assignment.
		4. THIRD-PARTY BENEFICIARY: If T2, as a sublessee or an assignee, expressly assumes the covenants of the master lease, then  T2 is directly liable to Landlord as a third-party beneficiary of the contract.  Likewise, if Landlord expressly agrees to sublease or assignemnt, Landlord can be said to be liabable to T2 for the covenant of quiet enjoyment in the master lease.

	KENDALL v. ERNEST PESTANA (CA, 1985)
			Outline Section 03.C.07b 98.11.23  pp. 465.CB

	Facts:	Ernest Pestana leased hangar space to Kendall (after a series of leases and assignments.)  The lease contained a clause stating that consent by the LL was necessary before T could sublease.  Kendall wanted to sublease and requested permission from Pestana, who denied permission - fo no commercially sound reason.

	Rule:	Absent contractual language to the contrary, a lessor may not arbitrarily withhold consent to an assignment.
	Holding:	Court held that the LL could not withhold consent, unless there were reasonable grounds for doing so.  This decision overruled precedent.  Court states that precedent should be overruled when change in conditions warrants it.

	Policy:	Leasehold should be freely alienable, restrictions are therefore to be construed against the lessor.
	Notes:	LL can avoid the result of this rule by contractually specifying that he/she may arbitarily withhold consent, plus this rule ONLY APPLIES TO COMMERCIAL LEASES.  Whether a court would apply it to a residential lease is left in question.

		COVENANTS AGAINST ASSIGNMENTS OR SUBLEASES:
		A. Old view based on conveyance principles, LL may arbitrarily refuse to accept new T2, T would still be liable for rent etc.
		B. New view accepted by a growing number of jurisdictions is that LL's denial of consent must be reasonable.
		C. LL waives the covenant by knowingly accepting rent from an assignee.
		D. LL is also said to have waived the future application of the covenant if he/she at one time expressly consents to an assignment - this is known as the Rule in Dumpor's Case and is accepted by most jurisdictions but rejected by the Restatement:
		
		"LL can avoid this result by either including in the covenant that it applies to the lessee and his/her assigns, or by expressly stating that his/her consent to the assignments is for the assignment only.

4.	Default and Abandonment
			Outline Section 03.C.08 98.11.25  pp. 484.CB

5.	Landlord's Duties / Implied Warranty of Habitability
			Outline Section 03.C.09 98.11.27  pp. 508.CB

	Notes:	LANDLORD'S DUTIES/RIGHTS:
		1. LEGAL RIGHT TO POSSESSION: A Landlord has the duty to deliver to the tenant the legal right of possession.
		   a. If T finds out about person with paramount title i.e. one who LL has already leased or mortgaged property to, before T enters, he/she may terminate the lease.
		   b. Once T enters property he/she has no action against LL unless the person with paramount title interferes with T's possession/enjoyment of the property - at which point T may sue LL for breach.
		   c. If T knows of paramount title when he/she signs the lease, he/she waives the right to sue.
		
		ACTUAL POSSESSION
		   ENGLISH RULE: (Majority Rule) LL has duty to deliver actual possession as well as the right to possession. (View adopted by the Restatement)
		   A. Rationale: LL is in better position to know if previous tenant will move out, is in a better position to pressure them to do so and is more familiar with eviction procedures - therefore less costly for LL.
		   B. Problems: Disincentive to rent for the next month, and therefore results in vacant property.
		   C. Remedies: T may terminate lease, or not pay for portion not in possession, and recover damages - including costs of renting other premises, evicting hold over tenant and loss of business.
		   D. Waiver: Some leases contain provisions where T waives LL's duty to deliver actual possesion, legal right to possession cannot be waived.  Some courts have held waivers unconscionable in a long, complex standard form lease.
		   AMERICAN RULE: LL has no duty to deliver actual possession, burden falls on T to evict prior tenants if they hold over.  Actual possession is separate from legal possession. Landlord only need give legal possession; if prior tenant exists
		   A. Rationale: Based on older notion of lease as conveyance, i.e. lease conveys property leaving it upto T to take possession of his/her property.  Holdover viewed as trespasser, LL has no duty to evict trespasser.
		
		HANNAH v. DUSCH - VA 1930
		FACTS: Tenant Hannan sued LL Dusch because property which he leased was not available for T to take possession because the former tenant remained in possession.
		RULE: A LL is obligated only to place a tenant in legal possession of rented real property
		HOLDING: Court held that LL is only obligated to place tenant in legal possession of property, and therefore had no duty to oust hold-over tenants.  Relied on the existence of a statute which granted the T a summary remedy for unlawful entry or detainer of his/her property
		
		B SELF HELP: Landlord's Right
		Modern trend is to prohibit self help - use judicial proceeding
		BERG v. WILEY MN, 1978
		FACTS: Plaintiff Berg leased property from Defendat Wiley.  Defendant contends that Plaintiff did not make remodeling changes to comply with the health code within the time wich Defendant allotted for Plaintiff to do so.  Defendant then changed the locks on the building.  Plaintiff brought action to recover lost profits etc.
		RULE: A LL may not remove a breaching or defaulting tenant's possessions or bar such tenant's access to the premises without resorting to Judicial Remedies.
		HOLDING: Court first held that the action by Defendant was not peaceable and therefore illegal and then the court went on to overturn the common law rule allowing self-help - holding that LLs must use judicial remedies to evict tenants.
		
		C. MITIGATION OF DAMAGES: Duty to Mitigate Damages reversed common law rule of no duty. Now Landlord has a duty to ameliorate/mitigate where he could reasonably have avoided damages.
		SUMMER v. KRIDEL (NJ, 1977):
		FACTS: Defendant Kridel entered into lease with Plaintiff Sommer, before the lease began he wrote a very sad note as to why he could not fulfill the lease - does however pay the security deposit and first month's rent.  Defendant did not re-let the apartment until a year later, even though a potential tenant had expressed interest.  Plaintiff sought to recover for the full amount of the two year lease.
		RULE: LL has an obligation to mitigate his/her damages by making reasonable effort to re-let the apartment.  Burden falls on LL to prove reasonable effort.
		HOLDING: Plaintiff was not allowed to recover.
		NOTE: Duty to mitigate has difficulties in enforement - what's reasonable and differences with commercial tenancies where often tenants know better where prospective tenants may be found, whereas residential landlord know where to find tenants) Often whether rents have gone up or down will impact on Landlord's decision to accept tenants surrender of premises. If rents have increased then Landlord will accept; If rents have decreased then Landlord will decline surrender.

6.	Tenant's Duties
			Outline Section 03.C.10 98.11.27  pp. 532.CB

	Notes:	DAMAGES AND RENT REDUCTION CALCULATIONS
		1. Differences between value of dwelling as warranted and value of dwelling as is.
		2. Differences between value of dwelling as warranted and value (fair rental) of dwelling during occupancy by Tenant in the defective condition (lesser value than in (1) above).
		3. Percentage Rent reduced by % equal to % of use lost by Tenant because of Landlord.
		
		RESTATEMENT APPROACH:
		$100/mo - Fair rental value (suitable condition)
		 $20/mo - Fair rental value (dilapidated)
		 $30/mo - Contracted rent (in lease)
		Then Tenant can reduce by 1/5 because
		(Fair rental dilapidated)/(Fair rental suitable) = 20/100 = 1/5
		1/5 of $30 = $6/mo. So rent becomes$30 - $6 = $24/mo.
		Common law used to allow for retaliatory eviction; but no longer.  How much one must pass before retaliatory eviction varies.
		
		TORT APPROACH: Discomfort & Annoyance, infliction of emotional harm, punitive damages.
		
		Economist view of implied warranty of habitability:
		POSNER: Thinks it would lead to a reduction in supply of low income housing (developers won’t want to build if they are burdened with costs).  Result will be High Rents & Low Supply of existing housing.
		KENNEDY: Thinks more apartments will be on market longer if old buildings won’t be able to deteriorate so quickly - so around longer for low income tenants.
		
		TENANT’S DUTY NOT TO COMMIT WASTE:
		1. Voluntary waste - Tenant makes change he’s not permitted to make.
		2. Involuntary/Permissive Waste - Tenant’s failure to act to prevent substantial change
		   a. Tenant may be permitted to make repairs, may be should make minor repairs.
		   b. Often commercial leases have a covenant in the lease saying they will repair except for fair wear and tear and damages.
		
		DOCTRINE OF FIXTURES:
		If you can take away whatever you put in without doing damage, then its yours.
		If there will be some potential of damage - look to intention of parties (security deposit).  This is more difficult in commercial tenancies
		
		GREENFIELD v. KOLER:
		Building destroyed by fire. Under the old rule, Tenant paid for it and not the building.  Two exceptions:
		1. If Tenant leases part of the building and it is destroyed - no obligation
		2. Impossibility of performance/frustration of purpose.  Property must be in a certain condition to be helpful to Tenant (contract).  This possiblity is negotiable in the lease, court decides this case based on what they believe would have been negotiated.  This is really about who is able to buy the insurance.
		
		RENT CONTROLS AND TAKINGS:
		 When rent is controlled, the Landlord is entitled to fair return on property and hardship increases.
		
		CROMWELL v. NEWARK:
		Landlord denied right to increase rent because it would go over aggregate limit imposed by statute.  Court held that such restriction is unconstitutional as it limits Landlords ability to get a fair return on his investment.
		
		TAKINGS: 5th amendment says government shall not take private property without just compensation
		1. Physical Taking: physical invasion of property by government.
		2. Regulatory Taking: Government unduly reduces property’s value.
		
		YEE v. CITY OF ESCONDIDO:
		(Regulatory Taking) City has limit on mobile home rental increase, state has residency law forbiding owner of trailer park to refuse buyer of mobile home as long as buyer can pay the rent.  Landlord argues this is regulatory taking since Landlord can’t raise rents on pads and additonally has no control over who is in the park.  Trailers increase because pad they sit on is at submarket rent value.  Court agrees that wealth transfer may be a regulatory taking and remands for further consideration.
		
		SEAWALL
		(Physical Taking)  Ordinance reuires all owners of SRO to restore them to habitability and lease at controlled rents.  Court determines this is a regulatory and physical taking. (Landlords are forced)
		1. Landlords can’t get economically viable use of property
		2. doesn’t substantially advance state interest.
		
		LE CAGE BOARD OF REALTORS V. CITY OF CHICAGO
		Property owners challenge constitutionality of Chicago’s Residential Landlord and Tenant Ordinance.  Posner’s opinion says that refusing Landlords the ability to charge interest on late payments of rent would not improve the scene for tenants, rather it would only lead to higher rents.
		
		PUBLIC HOUSING: (Supply oriented program)
		 Project Subsidies (tied to dwellings)
		Housing Allowance (tied to recipients) housing only
		Income Maintenance (tied to recipients - no restrictions)
		
		HOUSING SUBSIDIES (Help deal with)
		1. Market Failures: Market would react too slowly to help immediate housing shortages)
		2. Substandard Housing: Preventing this leads to positve externalities)
		3. Society: Good housing for all
		Giving people $ for housing demand increases
		Section 8 new construction and substantial rehab is supply oriented
		Section 8 existing housing is demand oriented

7.	Reforms - Rent Control
	CROMWELL ASSOCIATES v. MAYOR AND COUNCIL OF NEWARK (NJ, 1985)
			Outline Section 03.C.11 98.11.27  pp. 532.CB

	Facts:	City of Newark had a rent control statute which specified that no LL could increase their rent by more than 25% total. There was a cap on normal annual increases at 6% and then a provision which allowed a LL to petion for higher increases due to justifying hardship and circumstances. Cromwell increased rent under a later provision and then was told that they couldn't also impose the 6% annual increase because that would bring them over the aggregate limit.

	Rule:	Rent control ordinance may not place an absolute cap on increases available to LL's.
		It has previously been held to be unconstitutional to deny a LL a fair return on his/her investment (would be a violation of the 5th Amendment, taking of property without due process).
	Holding:	Court here holds that an absolute cap on increases has the potential to limit a LL's fair return and is thus unconstitutional.

	Policy:	Arguments Against Rent Control:
		1. No means of testing - therefore it is not necessarily those in need who receive the rent controlled apartments.
		2. No corelation between need and apartment. i.e. single woman living in 4 bedroom.
		3. Divides communities - real estate taxes go up for remaining residences becasue rent control keeps the value of those properties constant.
	Notes:	CHICAGO BD. OF REALTORS v. CITY OF CHICAGO (IL, 1987) - A group of property owners challenged the constitutionality of Chicago's Residential Landlord and Tenant Ordinance, contending that it violated the Constitution.  The court denied their motion for an injunction.  In Posner's opinion he asserts that forbiding LL's to charge interst on late payments of rent would not improve the welfare of tenants as a whole, but would in fact adversely affect them because LLs would charge higher rent.

D.	Feudalism Revisted
	Reich, The New Property, 73 Yale L.J. 733 (1964)
			Outline Section 03.D.01 98.12.04  pp. 90.SU

	Security and Freedom
			Outline Section 03.D.02 98.12.04  pp. 110.SU

	Woolf, Virginia, A Room of One's Own
			Outline Section 03.D.03 98.12.04  pp. 114.SU

	Power of Land Ownership ('A Farm of One's Own')
			Outline Section 03.D.04 98.12.04  pp. 121.SU

V.	Private Regulation
A.	Easements
	HOLBROOK v. TAYLOR (1976)
Roadway over owner's land to get to another owners lot.
			Outline Section 04.A.01 98.12.7  pp. 780.CB

	Facts:	Holbrook gave permission for a roadway to be built across his land.  Subsequently, Taylor bought the adjoining property and was given permission by Holbrook to use and repair the road, which he did at some expense.  A dispute arose and Holbrook tried to stop Taylor from using the road.  Taylor brought suit.

	Rule:	A right to the use of a roadway over the land of another may be established by estoppel.
	Holding:	Court held that Taylor had acquired a license to the roadway because he had the permission of the owner, he had made substantial expenditures and relied on the licensor's grant of permission.

	Notes:	DEFINITIONS: An easment is a grant of an interst in land that entitles a person to use land possessed by another.
		   A. AFFIRMATIVE EASEMENT: owner of easement has the right to go onto land of another to do some act.
		   B. NEGATIVE EASEMENT: owner has the right to prevent owner of the servient land from doing some act.  These are rare, setm from four types in common law: easemnts for light; air; subjacent/lateral support; or for the flow of an artificial stream.
		   C. EASEMENT APPURTENANT: If an easement benefits its owner in use of another tract of land, it is appurtenant to that land.  The land benefited is the DOMINANT ESTATE, and the land burdened is the SERVIENT ESTATE.
		   D. EASEMENT IN GROSS: Where the 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.
		   E. EASEMENT'S PASS WITH THE LAND.
		   F. LICENSE: A license is different from an easment.  A license is permission to go upon land belonging to the licensor.  There are certain types of licenses which are irrevocable:
		      1. Liscense coupled with an interest - one that gives the licensee the right to remove a chattel from the licensee's land.
		      2. Estoppel - Three requirements must be met: there must be a license i.e. permision, the licensee must rely on such license, and they must have made substantial improvements.

2.	Creation
			Outline Section 04.A.01b 98.12.7  pp. 780.CB

	Notes:	A. EXPRESS GRANT: As an interest in land, an easement must satisfy the Statute of Frauds - it must be signed by a grantor (if not it is a license).
		B. RESERVATION: An easment may be reserved by the grantor over the land granted.
		C. IMPLICATION: An easment by implication can be created in two ways:
		1. An intended easement based on an APPARENT use existing at the time the tenement is separated. Requirements:
		   a. Implied only over land granted or reserved when tract divided.
		   b. Use must have existed at the time the land was divided (at the time that the land was in one hand the use is referred to as quasi-easement). This previous use must be apparent and continuous.
		   c. The easement must be reasonably necessary.
		2. An easement by necessity:
		   a. An easement by necessity is implied only when land is divided, the necessity must exist at the time the land was divided.
		   b. Use need not have existed at the time the land was divided, i.e. if virgin timer land is severed, leaving one parcel landlocked, even if there was no need for roads at the time, an easement will occur when there is.
		   c. Easement by necessity terminates when necessity does.
		   d. Easement by necessity is limited to right of way, easment for air, light or sewer access have not traditionally been granted (with exceptions)

3.	Implication by Apparent Use
	VAN SANDT v. ROYSTER
Raw Sewage overflowed into basement of lot closest to main drain pipe.
			Outline Section 04.A.01c 98.12.7  pp. 795.CB

	Facts:	Original owner owned three adjacent lots, a drain was built running from the farthest lot through the other two to a public sewer.  All lots were conveyed without exceptions or reservations.  Van Sandt ended up with the lot closes to the sewer.  Consequently his basement flooded with sewage.  Van Sandt argues that he didn't have notice of the easement and that none therefore existed.

	Rule:	Whether there is an implied easement will be inferred from the intentions of the parties.  Such inferences will be drawn from the circumstances under which the conveyance ws made.  Parties to a conveyance will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation.
	Holding:	Court holds that there was an implied reservation which stems from a quasi-easement the original owner had to the other 2 lots.  The court further holds that Van Sandt had notice because he should have found out about the easement through investigation when he bought the lot - the fact that the sewer was not visible is not controlling.  Van Sandt is denied the injunction but may collect for damages for his repairs.

	Policy:	Legal Fictions:
		1. Implied reservation - no evidence of this
		2. Quasi-easement
		3. Notice - where there was no physical evidence.

4.	Easement by Necessity
	OTHEN v. ROSIER
Drove my chevy to the levy but the levy was dry.
			Outline Section 04.A.01d 98.12.7  pp. 801.CB

	History:	Trial court found that Othen had acquired an easemnet by necessity. Appellate court reverses herein.
	Facts:	Othen and Rosier owned adjacent lots which were formerly one lot.  Othen uses right of way across Rosier's land to get to road.  Rosier built a levy on his property which made the right of way too muddy for Othen to reach his house.  Othen filed for an injunction.

	Rule:	In order to create an easement by necessity, the necessity must have existed at the time that the estate was created.
	Holding:	Othen failed to prove that the right of way was a necessity at the time the two estates were created from one.  Furthermore, Othen could not claim an easement by prescription because the use of the road was permissive.

5.	Prescription
			Outline Section 04.A.01e 98.12.7  pp. 810.CB

	Notes:	C. PRESCRIPTION:
		The same policies that lie behind ADVERSE POSSESSION, apply to the long term use of an easement - the acquisition of an easement by long term use is called PERSCRIPTION.
		   1. English Law - used the fiction of the lost grant
		   2. American Law - did away with the fiction of a lost grant and developed prescription by analogy to adverse possession - the statute of limitations is usually the same for both, likewise the elements are also the same.
		   3. Elements: OPEN AND NOTORIOUS; CONTINUOUS; EXCLUSIVE; and ADVERSE.
		OPEN AND NOTORIOUS: Same as Adverse Possession, however in cases such as sewers, open and notorious may be met if the sewer could be reasonably discovered through inspection.
		CONTINUOUS: Use must be continuous but not necessarily constant i.e. continous in its ordinary use.  TACKING is allowed as in AP.
		UNINTERRUPTED USE: Jurisdictions are split over what constitutes interruption.  In those adhering to fiction of the lost grant a letter would be enough, in most others this would not suffice, it would need to be an affirmative act, i.e. action to quiet title.
		EXCLUSIVE: Actually, perscriptive easements need not be exclusively by one party but they do need to be under a claim of right as against the true owner.
		ADVERSE/CLAIM OF RIGHT: There may be no permission (this is the easiest way to prevent prescription) - permissive use may turn to non-permissive, but acts must be suffienet to put owner on notice of adverse possession.
		   4. Prescription cannot be acquired for negative easements, or for easements by necessity.  However, if the necessity ends and the use continues this becomes adverse use (i.e. necessity makes it permissive) and the statute would start to run.
		   5. Public easements: the public at large may acquire an easement to private land, however if public uses vacant, underdeveloped land the use is deemded to be permissive and no prescription would develop.
		   6. Scope of easement: courts look to the intent of the granto, or to the necessity at the time of the implied easement.  Use of the easement may not be expanded to benefit subsequent lots, even if the owner of the dominant estate owns both.
		
		CONDEMN AN EASEMENT:
		 Some states in the west allow you to condemn an easement if you show necessity.  Such proceedings do not require that the lots be from the common ownership.  Where this is allowed, the dominant estate owner is usually required to pay damages.

6.	Condemn of Easement
	MATTHEWS v. BAY HEAD IMPROVEMENT ASSOC.
Beach front is public property
			Outline Section 04.A.01f 98.12.7  pp. 815.CB

	Facts:	Bay Head was a beach community which owned 1 1/4 miles of beach and whose members owned the pacels of land which were adjacent to the beach.  The association maintained the beach, providd life-guards, etc.  Only its members were allowed to use the beach.

	Rule:	The public must be given both access to and use of privately owned dry sand areas of the beach as is reasonably necessary.
		The public trust doctrine holds that no one can be denied access to running water, including the sea.  Modern doctrine holds that this right extends up to the high-water mark (in ME and MA the boundary is the low-water mark).
	Holding:	The court in this particular case extended the doctrine even further, holding that in order to be able to exercise their rights, the public must also be given access to the dry sand area of the beach, and such reasonable access across private proerty as is necessary to access the beach and sea.  In order to accomplish this the court held that the Association must open its membership up to the public at large.

7.	Scope and Termination
	BROWN v. VOSS (1986)
Dominant estate owner seeks to extend easement over servient estate to a second dominant estate.
			Outline Section 04.A.01g 98.12.7  pp. 832,842.CB

	History:	Trial court found no injury to Plaintiff owner of servient estate.

	Issues:	Can holder of an easement traverse the servient estate to reach not only the dominant estate, but a subsequently bought parcel when there is no increase in burden on the servient estate?
	Rule:	Generally, an easement appurtenant to one parce of land may not be extended by the owner of the dominant estate to other parcels owned by her.
	Holding:	The appellate court respects the findings of the trial court.
	Rationale:	The easement was created in an express grant only for passage to the dominant estate.  An extension of the easement to a non-dominant property is a misuse of the easement.  However, for injunctive relief against Defendant, there must be actual and substantial injury to Plaintiff.
		DISSENT: Misuse of easement is trespass, thus injunctive relief is the appropriate remedy.

	Notes:	Private easements do not allow above or below ground utilities because this use is not reasonably foreseeable.  Plus it would be a potential danger to the servient estate.
		GENERAL RULE: An easement, once fixed by the parties, cannot be changed by the servient owner without the permission of the dominant owner.  Current rule provides flexibility to move easement provided it does not significantly affect dominant estate.
		
		SCOPE OF EASEMNTS - GENERAL RULE: The scope of an easement depends on the intention of the parties.  Changes that could reasonably be expected or that are necessary to preserve the utility of the easement are permitted.

		TERMINATION OF EASEMENTS: Easements terminate when...
		a. title to dominant and servient estate are held by same person (e.g. if dominant owner releases it to servient owner).  Once terminated it is not revived if the land is divided again.
		b. there is a release. Dominant owner may release the easement to the servient owner. This is only valid if it is in writing - Statute of Frauds.
		c. servient owner prevents easement from being used for a period exceeding Statute of Limitations.
		d. dominant owner abandons easement indicating an intention never to make use of the easement again.
		e. dominant estate owner changes her estate so that the easement is no longer of use.  Likewise, an easemnet by necessity ends when the necessity ends.
		f. Exception: Non-use by a RR does not constitute abandonment.

8.	Negative Easments
			Outline Section 04.A.01h 98.12.7  pp. 854.CB

	Notes:	Negative easements are a right of the dominant owner to stop the servient owner from doing something on the servient land.
		a. In England there was no system for recording negative easements sand since they are generally unseen, the court was resistent to permit them in order to protect purchasers who could not see them.
		b. In the U.S. recording systems existed but the court for the most part accepted the English restrictions on creating new types of easements.
		-  Conservation easements developed to preserve scenic and historic areas and open space (statutes in almost every state protect them).
		c. Negative restrictionsare usually treated as equitable servitudes (courts often refer to equitable servitudes as negative easements).

9.	Scope
	MILLER v. LUTHERAN CONFERENCE AND CAMP ASSOC.
			Outline Section 04.A.01h 98.12.7  pp. 823.CB

	Facts:	Former owner of easement in gross (Plaintiff), now present owner in title of fishing and boating rights assigned 1/4 of his interests to his brother (Defendant's predecessor).  They formed a partnership which dissolved and resulted in them each granting liscenses independently.  Plaintiff is suing present liscensee Defendant for an injunction to stop them from bathing in the lake.  Plaintiff contends that bathing rights were not expressly conveyed, and further that bathing rights were easements in gross which were inalienable and indivisible.  Defendant contends that even if they weren't expressly conveyed, Defendant acquired them by prescription.

	Rule:	"One Stock Rule" - if two or more persons own an easement or profit in gross, they must use the easement or profit as one stock, neither can operate independently of the other
	Holding:	There is no principle of law which a) forbids an adverse enjoyment of easement in gross from becoming title by prescription nor b) the assignment of an easement in gross.  Both are permitted.  However, an easement in gross is not divisible in the sense that Plaintiff and his brother had the right to make separate uses of it, the rights were to be held as "one stock."  Therefore, Defenant's liscense was not valid.

	Notes:	Recently easements in gross have become assignable if the parties so intended except for recreational easements such as fishing, and boating, etc.

B.	Covenants Running with the Land
1.	Scope and Termination
	RESTE REALTY CORP. v. COOPER (nj 1969)
			Outline Section 04.A.02a 98.12.7  pp. 508,891,907.CB

	Facts:	Tenant rented basement to conduct business.  After every rainstorm the basement floods.  Tenant moves out after particularly bad rainstorm.

	Rule:	When a LL causes a substantial interference with the enjoyment and use of the leased premises, the tenant may claim constructive eviction.
	Holding:	Court holds that Tenant had been constuctively evicted because of interference with an implied covenant of quiet enjoyment.  Constructive Eviction requires that the Tenant leave, even though she stayed for a period of time it was reasonable for her to do so because she had a promise from the LL that the problem was going to be fixed.

	Notes:	COVENANTS ENFORCEABLE AT LAW: REAL COVENANTS
		A covenant is a promis to do or not to do a certain thing.  The promise to do something is an AFFRIMATIVE PROMISE.  A promise not to do something is a NEGATIVE PROMISE.
		-   Real covenants run with the land
		-   They may only be enforced through damages

		COVENANT OF QUIET ENJOYMENT: A tenant has a right of quiet enjoyment of the premises, without interference of the LL, this right is implied in every lease.  The covenant of quiet enjoyment can be breached by either actual or constructive eviction.
		1. ACTUAL EVICTION: If T is evicted, his obligation to pay the rent ceases.
		Partial Eviction: - Two views - some jurisdictions hold that when T has been evicted from any portion of premises, the obligation to pay rent is extinguished.  Restatement and other sources hold that partial eviction means partial rent abatement, with the right to sue for breach of covenant for damages.
		2. CONSTRUCTIVE EVICTION: In effect the T's obligation to pay rent is dependent upon the LL's performance of the covenant of quiet enjoyment.  Elements:
		A. Substantial Interference: courts decide the purposes for which the premises were leased, the foreseeability of this type of interference, the duration of the interference, the nature and degree of harm caused, and the availability of means to abate the interference.
		B. Must Tenant Vacate? - 2 views: In some jurisdictions, T must vacate within a reasonbale time from the interference before they can claim constructive eviction and be released from the obligation to pay rent.
		
		Restatement rejects thsi view - T has the right to terminate or stay on and receive damages or rent abatement.
		Note: T may seek a declaratory judgment before vacating, so they are certain of how the court will decide.
		C. Fault of Landlord: The interference must result from an act or a failure to act by the Landlord.  Interferecne must be under the LL control.  Exception to this rule is that the LL has a duty to control activity in common areas.
		D. If the Tenant knows of the interference when they take possession, they waive their rights to sue.
		E. Tenant must give notice to LL of the interference, and the LL must fail to remedy the situation before T cna claim constuctive eviction.
		F. Interference must be PERMANENT.  Later cases hold that conditions which are occassional may still amount to Constructive Eviction i.e. failure to supply regular heat only interferes on cold days but will still bring about Constructive Eviction.

2.	Implied Warranty of Habitability
	HILDER v. ST. PETER (VT, 1984)
			Outline Section 04.A.02b 98.12.7  pp. 519.CB

	Facts:	Plaintiff Hilder leased an apartment from St. Peter.  During the course of the tenancy, serious problems occurred.  These were brought to the LLs attention but were not fixed.  After 14 months, Plaintiff brought action to recover rent.

	Rule:	An implied warranty of habitability exists in residential leases.
	Holding:	Court awarded damages.
	Rationale:	Lease is a contract where there is an implied warranty of habitability, to provide less than habitable premises is a breach of that contract.

	Notes:	GENERAL RULE: LL has no duty to provide habitable premies because T has the opprutnity to inspect premises before entering into lease.  Three exceptions:
		A. Where there is a short-term lease of a furnished house, i.e. summer rental.
		B. Hidden, latent defects - LL has a duty to disclose such defects.
		C. When a building is being constructed at the time the lease is executed, there is an implied covenant that the building will be fit for the purposes intended.
		
		Problems: Its hard to control the IWH once it has begun.  The burden falls on the LL.
		A. Different from constructive eviction because T does not have to leave.  T can stay and sue for damages.
		B. Warranty is considered a dependent covenant of the lease, meaning that if the premises are not habitable, the T cna stop paying rent and the LL has no action against him.
		C. POSNER: Argues that enforcement of IWH actually has a negative effect on low income tenants because the burden on LL's leads to higher rents, abandonment or less investment in new housing - less supply.
		D. At this time applies only to residential leases.  Argument can be made to extend to commercial leases i.e. habitable/suitable for the purpose intended.
		E. Some jurisdictions look to compliance with the housing codes as evidence of habitability, but it is usually not conclusive - depending on the jurisdiction the standard may be higher or lower.
		F. Waiver of the warranty is not permitted in regards to defects which render the premises unsafe or unehalthy, or when the waiver is unconsciounable or against public policy.
		G. RETALIATORY EVICTION: conventional common law allowed LL to terminate periodic tenancies and tenancies at will with no good reason i.e. retaliation for notice that they weren't in compliance with housing codes.  In most jurisdictions that is no longer the case.  Retaliatory Eviction has become a defense against eviction.

C.	Homeowner's Associations
1.	Kiss of the Condo Owner
			Outline Section 04.A.03 98.12.7  pp. 919,934.CB

D.	Gated Communities
1.	Serene Fotress
			Outline Section 04.A.04 98.12.7  pp. 937.CB