Baumann Outline fall 2001

I. Possession

Ownership: a bundle of stick: control over use (determine who uses it), security for loan, sell it, pass it on as debt. but qualified: restrictions on use, must obey certain formalities 
Label “owner” does not have practical/abs. significance: only (may or may not) has meaning w/in particular context
Owner of prop. rts. possesses ability/consent of others to act in particular ways. Expects community to prevent others from interfering with her actions w/ regard to that prop. 
Property: legal relationship among people with respect to things. Not the stuff itself. All property is restricted by community w/ regard to law. Robert Hunt: Relationship of individuals to the community with regard to things.

A. Finders Keepers, Loser Weepers?

1. Acquisition by Find
relativity of title/ownership
finder #1 has claim over finder #2 – over all but true owner
expedite return to true owner
why does finder get it?
	simpler – promotes peace
	emphasizes possession
	honesty – encourages finder to report it
	discourages wasted time – don’t have to waste time protecting stuff

a. Armory v. Delamirie (King’s Bench 1722) 		 cb 100
FACTS: Armory(P), a chimney sweeper’s son, found a jewel and took it to Delamarie’s (D) goldsmith 
shop. Pretending to weigh it, D’s apprentice removed the stones. D offered P three half pence for jewels, which P refused. D refused to return stones, P sued
QUESTION: Who has rights of ownership to the jewel?
HOLDING: Finder has rights of ownership superior to all but true owner (or prior possessors). Protecting  weak from strong; keeps order; encourages honesty in abstract sense. Boy gets the value of the best jewel. This puts the burden of proving the value of the possibility of the true owner returning on D. If he could prove probability of return, ct. might accept lesser value. 

BAILMENT – rightful possession of goods by one who is not true owner. True owner: bailor, person in possession: bailee. 
Voluntary bailment: owner of the goods gives possession to the bailee; 
Involuntary bailment: found goods – involuntary from the standpoint of the owner, but not from that of the finder. By choosing to take possession, the finder assumes the obligations of the bailee. The bailee has the duty to care for the goods and deliver them to the owner as agreed.
– bailee must have intent to exercise physical control and bailor must intend to give up possession
– Various stds. of care/obligations for bailee: std. of great care; std. of minimal care (finders); ord. negl. std. of reas. care under the circumstances. Modern view: std. of reas. care.
– regardless of standard of care required of a bailee while the goods are in his/her custody, a bailee is held to strict liability when it comes to redelivery. If the bailee misdelivers the goods to the wrong person, liable even though s/he may have used reasonable care. Creation – to create a bailment, the alleged must assume actual physical control with the intent to possess.  Since a bailee has duties and liabilities, court define “physical control” and “intent” to carry out the expectations of the parties and to be fair.  If a court thinks that liability would be unexpected or unfair, it can usually find that D did not have “physical control” or “intent.” 
b. Finder v. “unconscious” possessor:  Hannah v. Peel  (King’s Bench 1945)	 cb 103
FACTS: Soldier (Duncan Hannah) stationed in D (Major Peel)’s unoccupied house during war. Adjusting curtains and found brooch. Told commanding officer, gave to police, after some time police gave to D	 who sold it. D had no knowledge of it before it was found, had never lived in the house. D offered P a reward, but P refused, demanded rt. to posses., sued.
HOLDING: The finder must have a claim to the found property superior to that of the owner of the 
freehold upon which the property was found (if the freehold owner was never phys. in poss., he may not have actual or constructive poss. of object.)  Two elements of  poss. – phys. poss. and intention.  Hannah found to be first possessor instead of Peel. Rationale: (1) reward honesty; (2) facilitation; (3) expectations; (4) ends are served.  Peele never moved into property (expectations). 
Court uses three cases (which don’t closely apply): 
Bridges v. Hawkesworth: P found parcel of bank notes on floor of shop. P given possession of them b/c of finder’s rule. Different from Hannah b/c public space rather than private, and parcel determined to be lost because assumed it was not intentionally placed on the floor of the shop. Private space: greater expectations. Shop owner never had responsibility for it. Since not a bailee, doesn’t get it.
South Staffordshire Water Co. v. Sharmon (1896): Employee cleaning pool, found rings. Rings go to South Staffordshire. Distinction: where rings/object found (in the land). When someone has to go through effort of digging under ground, higher expectation. Harder to find, thus belongs to prop. owner. Also, worker was invited into the area, not there to take anything out of the property.
Elwes v. Brigg Gas Co.: Land demised to gas company for 99 years. A prehistoric boat was discovered buried on the leasehold. Lessor owned the boast and it did not matter that the lessor had no knowledge of the boat’s existence. A person possesses everything attached to or under his land; expectations.
Ct. attempts to balance expectation against interests, policy of rewarding honesty, finding true owner.

c. McAvoy v. Medina (MA 1866)  cb 110
FACTS: Customer found pocketbook left on table of barbershop. 
QUESTION: Was the pocketbook mislaid or lost? Who has rt. of possession over the pocketbook?
HOLDING: P cannot maintain an action: D is allowed to hold the pocketbook. It is a “mislaid” object, since it was intentionally placed on the table, and not a “lost” object, as in Bridges, since it was not on the floor. This will facilitate the return and retrieval of the true owner, who will trace his steps back to the barber shop (those who mislay objects retrace steps, those who lose objects do not). implied bailor (person who mislaid it) – bailee (barber) relationship. 	

(Baumann:  does not seem to think there really is a difference b/t mislaid & lost, difficult to prove)

B. Acquisition and Possession, First come, first served and the right to exclude

law, political power, and property: those who have property have power.

“Original” acquisition: how does a.thing come to be owned in the first place? 

Doctrine of discovery/conquest: discovery – sighting or finding of hitherto unknown or uncharted territory; conquest – taking of possession of enemy territory through force.
Rule of capture
Ownership of property through creation
Locke’s Labor Theory: (1) encourages productivity; (2) investment; (3) can be extended to mean that no one can 
	use your property

Grounded in: (1) Rule of First in time; (2) Locke’s Labor Theory:  Accession: a person adds to another’s property by labor alone, increasing its value; encourages productivity of land. Problem: disregards joint labor effort, adverse possession.

1. Acquisition by Discovery
Impossible to generalize Native American land use systems. At least two important principles concerning land: (1) land regarded as spiritual; (2) not possible to “own” land. But there were prop. systems in place – much more about shared use, but still sense of ownership invasion of N. America – struggle over sovereignty and power. Three ways of taking land: declaration, purchase, ind. settler negotiation. Miscommunication: tribes thought land use, Europeans thought absolute land use
 
a. Johnson v. M’Intosh (S.Ct. 1823)  		cb3
FACTS: M’Intosh owned land in Illinois that he acquired under a grant from the U.S.  Johnson (P) had purchased same land from the Pinakeshaw Indians.  P brought an ejectment action. 
PRIOR PROCEEDING: The district court granted judgment for D and P appeals.
QUESTION: Can Indian land grants be recognized in US cts? Do Indians have power to give title which can be sustained in cts.? 
HOLDING: The courts of the U.S. may not recognize a title to real property obtained under a grant made by an Indian tribe. Doctrine of discovery: gives title to land (soil), rt. to govern. Native Americans will have to assimilate themselves. Justice Marshall says (1) Euro. nations agreed that discovery would give title to discovering nation. The discovering nation acquired exclusive rights to regulate its relationship with the Native Americans.  (2) After rev, the U.S. obtained by treaty all rights to realty that England had. U.S. also acq. land from Spain. Thus, U.S. followed practices of Europe. (3) Disc. gives exclusive rights of occupancy either by purchase or by conquest. Title by conquest is normally limited by humanitarian concerns, so that the conquered people are assimilated into society of the victorious nation. Because they are fierce savages, Indians are not susceptible to becoming part of society. The only alternatives are to abandon the land or enforce the claims of the U.S. by force. (4) Consequently, Indians are merely occupants and their poss. (rt. of occupancy) may be protected in peace, but they cannot transfer absolute title to others. The courts of the U.S. cannot recognize title based on a grant by the Indians. 
Commentary: (a) title gives pre-emptive right to deal with people already there; (b) political reality: courts were not going to go against rationale of conquest; (c) this decision, concept of property as conclusion, could have changed history. Justice Marshall avoids talking about first possession: firstness doesn’t count b/c they were conquered, and S. Ct. is the court of the conqueror. Institutional integrity: still developing S. Ct. Ct. doesn’t have enforcement power, gov’t still has more power. Overall: Europeans/U.S. have raw power to have possession mean what they want it to mean. Justice Marshall seems to find decision troubling: distances self, uses third person. 

2. Acquisition by Capture
Rule of capture now used for oil, gas, water: fugitive resources.

a. Pierson v. Post (NY 1805)  		cb19
FACTS: Post was hunting on unclaimed land w/ dogs and hounds, in pursuit of a fox. Pierson saw, killed the fox, and drove it away. Post’s theory: hunt/pursuit constitutes possession.
PRIOR PROCEEDINGS: Verdict for Post; Pierson appealed.
QUESTION: Who has possession? What amounts to it, as applied to wild animals?
HOLDING: Pierson, who captured/contained the animal first, has rightful possession of it. Whoever has actual control/corporeal possession over thing gets ownership. Ct. decides to set bright line rule regarding property right to avoid conflict & create certainty. The fox was not Post’s property; property does not vest upon seeing, starting, or pursuing such animals, but only upon wounding, ensnaring them, or otherwise obstructing them of their natural liberty and the control of their pursuer.
DISSENT: Should have been submitted to the arbitration of sportsmen; courts should encourage fox hunting because the fox is vermin—allowing the fox to be appropriated from its pursuer does not provide an incentive for people hunt fox

b. Ghen v. Rich  (MA 1881) 	 	cb26
FACTS: Usage on Cape Cod – shot whale, leaves mark, whale floats up later, captor collects it. In this case, Ghen shot the whale, man named Ellie found it and sold it to Rich, who got blubber/oil from it. 
QUESTION: Is Cape Cod usage/custom valid for claim of title?
HOLDING: Yes, usage is valid, claim of title goes to Ghen. because killer could be looking for other whales without waiting around for the whale to rise. Finder’s fee percentage traditionally went to finder who sent word.  Judgment for libellant, opposite ruling of Pierson v. Post: sounds like Livingstone’s dissent. (1) Custom, used to promote peace, was that usage on Cape Cod for many years has been that a whale killed and anchored and left with marks of appropriation under these circums. becomes property of the owner. (2) Other cases call whales ferae naturae and rule that complete possession by taker must be established before it becomes property.  (3) Custom might be counter productive and lead to overkilling. (4) Custom should apply to all parties when rules are the same.

c. Keeble v. Hickeringill  cb30
FACTS: Keeble had a duck decoy pond. Twice, Hickeringill came to pond and shot off rifle, scaring away the ducks. Keeble sues Hickeringill.
QUESTION: Does Keeble have possession over ducks?
HOLDING: Yes, ruling for P. About the trade, not a sport. When a violation is done to a person’s occupation, possession, or livelihood, actor is held liable. Hick. could lure ducks away by building a pond, engaging in the same activity, thus exercising same rt. as P to have a place to gain livelihood, but not through violent or malicious act. Violence = unproductive act. Should not infringe upon hard work.

d. Rule of Capture and Wild Animals 
Rule of increase - offspring belongs to a mother, culture accepts this notion. ie.) if dom. animal wanders off and she has calves, neighbor takes care of cow and calves, the court ruled that the calves would go to the mother  Carruth v. Easterling (cb35) Advantages: takes care of the rules of nature, Habitat; certainty about resolution: always know mother; awards productivity of cow owner; encourages investment in animals; clear, certain rule- cheap to administer; comports with fairness   Disadvantages: notions of fairness may conflict; prod., certainty, and fairness may not all point in the same direction
Fugitive Resources (cb38) – Legacy of Rule of Capture applied to resources other than wild animals. 
Analogy b/t gas, oil, water and animals. Resources that flow from one place to another underground.
Oil: A & B have a pool of oil underneath land. If B starts drilling, A’s recourse is to start drilling: Barnard v. Monongahela (p.38). Later, can stop excessive drilling/extraction of resources: Hammonds v. Central Kentucky Natural Gas (p.38). If land angled, could B angle down and pull resources out? Can do so to be productive/encourage industry, but can limit. Bottoming out Rule: Mitigates Rule of Capture. Can’t drill diagonally under another person’s land, can drill directly down on own land. 
Water: Groundwater: American Rule: Rule of capture applied w/an exception of waste of water (reas. use). If use of water is harmful to others, unreasonable & unlawful. Surface waters: first in time/ “prior appropriation.” Who ever first appropriates water and puts to reas./beneficial use has a right superior to later appropriations. A starts; B starts, finishes: B gets, until A finishes if A had worked diligently. Riparian rights: each owner of land along a water source (riparian land) has a right to use the water. Policy considerations - court wants to protect investment, but it also wants to reward diligence, certainty. Expectations are also considered. Relation Back:  rejects P v. P, protects a large investment of person who started project as long as they  proceed w/due diligence.
		
e. Harold Demsetz, “Toward a Theory of Property Rights”/Externalities  cb40
Externalities: communal ownership: many external costs (costs imposed on others, not taken into acct. 
by user). You will act in your own self-interest, which is not necessarily in the best interest of the community - ex. the actor may get the value of the tree that is cut down from the communal forest, but the community as a whole loses the future value of that tree.  Encourages over-consumption. Private ownership decreases (internalizes) transaction costs, easier to negotiate and easier to conserve. Encouraging productivity. Tragedy of the commons, basis for some of the Law and Economics theory. individuals will act contrary to the community good. Communal ownserhip works in a situation of abundance, as soon as there is a scarcity of a resource creating a “market” there needs to be private ownership. 

3. Acquisition by Creation
intellectual property: copyrights (works of authorship), patents (investments), trademarks (names)
Locke’s labor theory.
Do you have a prop. interest in what you create? Connected to Right to Exclude.
If yes, what is interest? What are limits? Why limits? What are arguments for making copying your creation against the law? What are courts afraid of in talking about monopolies or protecting creation?
Under common law (see Cheney Bros.), you are able to imitate designs of others. Ct. is afraid of monopolies.
protecting inventors’ labor/incentive to create v. protecting the rest of us against monopolies 
 
a. Intellectual Property: Cheney Brothers v. Doris Silk Corp.  (2d Cir. 1929)	cb60
FACTS: P designs silk so frequently that it is impossible to get patent (and never sure which silks will succeed). Somewhat impossible to copy under Copyright Act. D copied one of P’s silks, supposedly without knowledge that they were copying. 
QUESTION: Can a company protect their creative designs through the use of courts?
HOLDING: No, it is not the court’s role to copyright/protect designs. A man’s prop. is limited to the chattels which embody his invention. Others may copy design itself. Learned Hand says that the public needs to be protected against monopolies. Issue has too much public impact, must be decided by legislature.

International News Service v. Assoc. Press (S.Ct. 1918) 	cb62]
FACTS: AP gathers news, sends out. INS started taking it.
QUESTION: Can INS copy news that AP has gathered/labor that AP has put forth?
HOLDING: NO. Ct. decides that AP has a quasi-property interest. Developed branch of unfair competition law – “misappropriation.” Needed to help news services stay in business (making an empirical guess that this will happen—doesn’t know effect on service). 
Douglas Baird’s critique (cb62): AP news service would have still stayed in business b/c they had exclusive service in some parts of the country. News is different from private prop. Cts. grant prop. rights as a way of preserving scarce resources, and info. is not a scarce resource. “first time”/“lead time” advantage – AP was exclusive source as long as still had the incentive to do it.

Smith v. Chanel, Inc. (9th Cir. 1968)  	cb62]
FACTS: Smith, a perfume company, wanted to claim in advertisements that it’s product was the equivalent of the more expensive Chanel No. 5. Chanel sued. 
PRIOR PROCEEDING: District ct. found for Chanel, saying competitor could not take a free ride on the trademark owner’s widespread goodwill and reputation.
QUESTION: Can Smith copy and use Chanel’s name? 
HOLDING: Yes. Chanel’s perfume was unpatented, so Smith had a right to copy it. Strong public interest in doing so – imitation is the lifeblood of competition. Now, some names have been trademarked/copyrighted – there are ways to protect use of name.

Arguments in favor of property rights in created products:
	Encourage creation: if not protected, people might stop inventing
	Encourage productivity (of ind. ideas) ---- Encourage Labor
	Allowed to stay in business (i.e. AP)
	Ideas/designs can be protected – even when no copyright/patent available
	First in time – fair, easy, concise rule; person who did groundbreaking work should get something
	Will try to get highest price as quickly as possible – investment too hard to do

Arguments against property rights in created products:
	Monopolies – close the market, so not allow competitors to change/expand idea, do not allow comp. prices.
	Encourage productivity (of large-scale movements)
	“Imitation is the livelihood of competition”
	Prop. rts. discourage improved products --- give inventors great power over fellow inventors

b. Property Rights in Bodies: Moore v. Regents of the University of California  (CA 1990) 	cb66
FACTS: In 1976 Moore(P) sought treatment for hairy-cell leukemia at UCLA Medical Center, owned by 
the Regents (D’s), Ds confirmed the diagnosis after conducting tests and told P his condition was life-threatening and that his spleen should be removed. P was not told that his cells were unique and had scientific and commercial value. Ds retained his spleen for research purposes, and during seven years of follow-up tests, samples of P’s blood, tissue, and other fluids were taken w/o his consent. P sued for wrongful conversion, alleging that his blood and bodily substances were his “tangible personal property.” Conversion: wrongful exercise of ownership rights over person prop. of another.
QUESTION: Can someone take something from your body, w/o your permission, and use it for something else? And if they make money from it, are they required to give you some of it?
HOLDING: P only has a cause of action for lack of informed consent, and has no cause for conversion. Ds have right to use P’s cells for research and resulting financial gain. (1) There was no conversion because he could not establish interference with property interest since he cannot establish that his blood and tissue are his once they removed from his body. Once cells are excised, they are no longer his. Plus, he had no legal title to them. (2) The new cell line was a new product, and he had no labor invested in them. (3) We want to protect the future of scientific research.
			
c. The Right to Exclude 
Jacque v. Steenberg Homes, Inc.   (Wisc. 1997) 	cb86
FACTS: Jacques owned land. Steenberg Homes had to deliver a mobile home. Easiest way was across the land – couldn’t get permission. 
QUESTION: Can Ds got through land without permission?
HOLDING: No. Jacques’ right to exclude others is part of the most essential sticks in the bundle. Indiv. landowners have an interest in protecting their land from trespass.

State v. Shack   (NJ 1971)		cb87
FACTS: Tedesco, prop. owner, employs and houses migrant farm workers. A lawyer and a health care worker came onto land to deliver services. Landowner denied them access, had them arrested.
QUESTION: Can landowner exclude government workers who are delivering services to resident migrant workers from his land?  
HOLDING: No. Health care workers and professionals funded by federal program to provide 
legal/medical services to migrant farm workers, designed specifically for that purpose. (Broader holding: Non-owners can enter property if it serves others’ interests.) Cannot go against legislative intent. Also, property rights serve human values. Maxim of common law: Cannot use property to injure others. Dicta: members of the press, some others, may not be denied reas. access so long as workers don’t object. Property rights not absolute: qualified/restricted in many ways -- property rights serve human values

C. Adverse Possession  (Legalized Thievery?)

1. Theory and Elements of Adverse Possession 
If a person who does not own land possesses it for the period of time specified in the applicable statute of limitations, she acquires title to the land. The prior owner loses her right to the land. Depending on the state, the time period for acquiring title by adverse possession is 5 to 21 years. Furthermore, the general rule of possessors applies to the adverse possessor before the statute of limitations has run.

Ways this plays out: 	
(1) can bring claim against owner to acquire title – ask ct. to give you judgment that you are the adverse possessor/now true owner
(2) living there, owner comes to get you off, sues you – your defense is that you are the adverse possessor/now the true owner

a. Requirements
actual entry/possession of property
open/notorious use of property (depends upon land, size, and condition; owner must be given oppty. to find out about it)
exclusive use of property (possession must be exclusive and of such a nature that the community would think of the adverse possessor as the true owner)
continuous use of property (possessor maintains in customary manner for statutorily required period of time; i.e., farming someone’s land for a number of years)
adverse or hostile (or “under a claim of right”) (adverse possessor must have claim to land adverse to owner. If permission is obtained, no adverse possession)
must hold for the statutory period

b. Policy Reasons for Adverse Possession
earning/labor theory – rewards those who work land; property law rewards those who work the land. 
 punishment for lack of use of land
quiets title – clears up/aids ambiguous title if you have been here for thirty years
protects against trespassers; gives you time to oust them
protects investment/labor – if they spent time and money, it’s theirs
assigns land to active claimants
benefits society economically
owners ought not to sleep on their rights & ignore land
gain expectations of keeping it

Van Valkenburgh v. Lutz  (NY 1952) 	cb120
FACTS: Lutz (D) bought lots 14 and 15 in 912. In 1937, Van Valkenburgh (P) purchased lots 31 and 32. 
Between P’s and D’s property was an unsold, irregularly shaped parcel of land composed of lots 19-22. At first D used lots 18-22 for access to his property. Later, D built chicken coop on these lots. He also gardened on these lots, selling his produce in the neighborhood. In 1947 P bought lots 19-22 at a tax sale. P erected fence across the access way that led to lots 14 and 15 (D’s prop.). D sued P, admitting that P owned lots 19-22 but claiming right of access across them. D won. P then sued D to have him removed from lots 19-22. D hired a new attorney and asserted that he had acquired, by adv. possess., title to lots 19-22 previous to P buying the lots at the tax sale. 
PRIOR PROCEEDING: The trial count found for D. App. Ct. afffirmed. P appeals.
QUESTION: Did Lutz acquire title through adverse possession?
HOLDING: No. Lutz did not acquire title by adverse possession. To acquire title by AP there must have 
been exclusive “actual” occupation for the statutory period. The elements of proof of such occupation are that the premises (1) are protected by a substantial enclosure or are (2) usually cultivated and improved. Lutz never enclosed the land (the shed and garage were not substantial enclosures), and his use of the garden did not extend to the whole of the premises. Moreover, in his suit against the VV’s, Lutz admitted that the VV’s owned the property – so possession was not “adverse” since there was no “claim of title.”
DISSENT: Lutz’s farm was substantial, had worked long and hard on the land, had buildings on it, and the possessor needn’t occupy every inch of the property in order to acquire it. The notice function had been served because all the neighbors spoke of the property as belonging to the Lutzes. Lutz disclaimed title (said his ownership was non-adverse) only after the statutory period had run.
	(Baumann—botched case: doesn’t get to the intent and policy of adv. possession concept)	

c. Color of Title and Constructive Adverse Possession
	
Requirements:
- Actual entry/exclusive possession: 
- Adverse/hostile/claim of right: Idea is that use is non-permissive. Different rules: (1) “never reward a wrongdoer” – the good faith but mistaken adv. possessor can be an adv. possessor under this test. (2) Maine rule – must know that it is yours and not care (according to Manillo), encourages dishonesty. How do you know it’s non-permissive? Dominant thought: presumption that occupancy is non-permissive, burden is on orig. owner to show it was permissive. In some jurisdictions: presumption that occupancy is permissive, burden is on adv. poss. to show that it is not.
- Open and notorious: Acting like owner. True owner expected to file something before st. of lim. runs, 
must have some (at least constructive) notice that land is being possessed—open and notorious alerts t.o. of presence. Starts clock on st. of limitations. 
-  Continuous: not using to potential. Must use as a true owner would (i.e. can use seasonal house in season). Must allow t.o. to know you’re there – not just coming when t.o. is not there.
- Color of title: Claim founded on a written instrument (deed, will) or a judgment or decree that is somehow invalid (forged, signed by incompetent, etc.). Have better claim to land, partly b/c you might have paid for it. If you have a deed for the whole thing, but only occupying part of it, you can claim whole thing – allows you to get more than you might have. Absent color of title, can only claim what possessing.

d. Mannillo v. Gorski  (NJ 1969)  cb138
FACTS: D (Gorski) builds steps/sidewalk 15 inches onto P’s land. P files for injunction. D claims adverse possession. P says that D not consciously dishonest   
PRIOR PROCEEDING: Trial ct.: judg. for Ps. D appealed. S. Ct. granted cert. before arg. in Ct. of App. 
QUESTION: Does mistaken belief qualify as hostile? Does D’s act meet the open & notorious req’ment? 
HOLDING: (1) (state of mind/adverse & hostile possess.) When a party enters a piece of land by mistake, she may claim adverse possession regardless of original intentions. Policy: Ct. does not want to reward dishonesty, lying, but rather to reward good faith encroacher, therefore state of mind not required to be hostile. (2) A minor encroachment along a common boundary of land does not presume knowledge on the part of the true owner. True owner must have actual knowledge for adv. possession to be open and notorious. Remanded for new trial to understand facts consistent with these findings.

2. The Mechanics of Adverse Possession
	
a. Howard v. Kunto  (WA 1970) 	cb143
FACTS: Each property owner along the beach resided on a tract immediately to the east of the tract actually described in their deeds. Kunto’s predecessors had the land surveyed (the surveyor did not notice the error) and built a dock on their property. Howard later brought in a surveyor who noticed the error, and so Howard gave Moyers the deed to the land which Moyers occupied in exchange for Moyers’s deed (that is, the deed to the land which Kunto occupied).  H. then brought suit to quiet title. 
PRIOR PROCEEDINGS: Howard won in the lower court, since Kunto had not lived on the premises long enough to establish AP, and had only used the land over the summer, not “continuously.”
QUESTION: (1) Is summer occupancy sufficient for AP? (2) Can an owner tack on to the previous owner’s term of use in order to meet the statutory term required for AP?
HOLDING: (1) Continuity: Must use as a true owner, but true owners would be there only in summer months anyway. (2) Tacking: voluntary conveyance of land from one owner to the next is sufficient for the statute of limitations. Neighbors all had deeds, thus privity existed between them. Kuntos are allowed to tack because there is privity, and voluntary transfer. Open and notorious? Very open, though not so apparent to true owners b/c land not easy to survey.  English law: no privity req’d for tacking. Against principle of sleeping – not so careful about earning. Amer. law: privity req’ments. Adv. possess. must run out stat. of limit. or tack – favors principle of earning (and not so careful about sleeper). 

b. Improvements and Encroachments  cb150
Common law: buildings or fixtures w/o rt. become the prop. of the landowner. Modern tendency: soften the impact of the rule on innocent improvers (like Kunto). If bldg. not entirely on neighboring land, usu. not treated as a fixture on the wrong lot. If innocent: cts. look at hardship to two parties in granting/denying injunctive relief. If willful/intentional: most cts. issue an injunction. A party who intentionally encroaches does so at his own will.

c. Disabilities 	cb151 
Stat. of lim. differs if disabilities present. Attempt to mitigate effects of adv. poss. rule – true owners have a reason why they slept. Generally 21 yr. stat. of lim. If disability removed, 10 years from when dis. removed. Considerations: (1) can’t tack disabilities; (2) disability must exist at time of entry. Must balance interest of adv. possessor w/ interests of the heir. If statute runs before 10 year disability time runs out, cts. usu. say whichever is longer. Hard for adv. posses/earner – working hard, must wait longer. -- disabilities may be: under the age of majority, unsound mind, imprisonment etc.

3. Adverse Possession of Chattels
What’s different w/ chattels? Easier, smaller, can take with you. Open and notorious more difficult. W/o title of deed, hard to show true ownership. Can’t improve on it/productivity. Likelihood higher for “innocent buyer” to come into picture (how much of a burden are we going to put on the innocent buyer?).  Generally, st. of limitations for recovering piece of pers. property is short: 2 – 6 yrs. Thief can’t claim good title, BUT rt. to recover expires.  Big Question: When does statute of limitations begin to run???

a. O’Keeffe v. Snyder  (NJ 1980)	cb153
FACTS: O’Keeffe said stolen in 1946, reported in 1972, found in 1976. Snyder said assume stolen – stat. of  lim. has run. He can’t get good title from thief, but P can’t recover.
PRIOR PROCEEDING: Trial ct.: summ. judg. for Snyder. App.: said D didn’t meet possess. req’ments. To say stat. of lim. has run, must show all req. of adv. posses: didn’t meet open & notorious. 
QUESTION: When does the stat. of limitations begin to run?
HOLDING: Three ways of approaching adv. possess stat. of lim: (1) st. of lim. expires in 6 years – owner loses title. (2) Int. App. Ct.: possessor has to prove all of the elements of possess. Open & notorious difficult for pers. prop. (3) Sup. Ct. of NJ (adopted here): discovery rule – due diligence of owner. Shifts burden to owner. Once she finds possessor, stat. begins to run. If she’s using due diligence, but doesn’t find possess., stat. won’t begin to run. Was O’Keefe diligent in pursuing her property?  This in turn depends on questions such as the availability of a national register in 1946, when O’Keefe noticed the loss, and the other means she could have used to track down the paintings, so the court remanded for trial on those questions.

What is purpose? Fairness; gives ct. power to weigh equities; opening possibility of passing equity b/t innocent buyer/t.o.; help control laundering/theft (changing practice of art business. If t.o. has to prove due dilig., perhaps businesses will establish directories/registries for lost art and people will be more careful about the provenance of art – encourage honest sellers/buyers). 

Fourth way of approaching adv. possess stat. of lim. (in notes on p.165 following case – Guggenheim case): Stat. begins to run when t.o. makes demand for return and good faith purchaser refuses. Until demand is made, possess. by good faith purchaser not considered wrongful. This protects true owners, esp. in the case of stolen art, though t.o.’s diligence is relevant b/c cts. retain discretion to look at due diligence in the case of unreas. delay.

b. Article from “Art and Auction”: Rosenbergs and Seattle Museum  	Supp
Knoedler sold painting to Bloedels, who made donation to Seattle Museum. By a series of coincidences, heir to Rosenbergs found it. Eventually, case against Knoedler dismissed, museum gave painting back.

Depending on the set of rules, get different results:
(1) stat. lim. 6 years: no to Rosenbergs, yes to Museum
(2) adv. possess. (proving it) – open & notorious would be difficult
(3) O’Keeffe due diligence – Rosenberg started looking immediately after the war
(4) NY owners have to demand return – yes.

D. Givers and Receivers

1. Acquisition by Gift

a. Overview/Requirements
A gift is defined as a voluntary conveyance to another. As in the case of deeds, the gift must be intended and there must be delivery. The grantee must also accept the gift. Delivery means that there must be a change of possession from the grantor to the grantee. Manual delivery is not required if is impractical. Instead the grantor can effect constructive delivery (e.g., handing over the means of acquiring possession, such as car keys). Some courts will permit the gift to be made by a written instrument if manual delivery is impractical (either due to size of the object or due to circumstances the parties are in.) This form of delivery is symbolic delivery. Also, the intent to transfer must be a present intent. Finally, an escrow agent can be used in conveyance.

	Requirements: 	(1) intent   (difficult, interconnected w/ delivery)
					(2) delivery   (difficult, interconnected w/ intent)
					(3) acceptance (usually presumed)

		intention: makes a gift shown by oral evidence
		delivery: requires objective acts.
				– handing over makes the significance of the act vivid and concrete for the donor. Allows donor to 
					feel the “wrench of delivery.”
				– act is unequivocal evidence of a gift
				– gives the donee prima facie evidence of the alleged gift
				– constructive delivery: handing over a key or something that will open up access to the subject 
					matter of the gift.
				– symbolic delivery: handing over something symbolic of the prop. given, usu. a written 
					instrument declaring a gift of the subject matter.

			Why delivery? Easiest kind of proof; concrete; connected to intent; clear, unequivocal act; helps 
				understanding of “no more.” About dominion and control. 
			Connection b/w delivery and intent: if Q of competence or undue influence, cts. can play w/ req’ments 		
	Simplest way to give a gift: hand something, make a statement
	Once gift is made, IRREVOCABLE. 
	Tension b/t gifts and formalities of wills. Formal documents, certain form, witnesses.

	Gifts causa mortis (in contemplation of death): cts stricter about req’ments b/c person more vulnerable, more 
		impulsive, maybe less competent. If person doesn’t die, automatically revoked: redelivery req’d. 
	Gifts inter vivos (during life): Irrevocable.

b. Newman v. Bost   (NC 1898) 	cb170
FACTS: The instate, a widower without issue, was stricken ill and, due to paralysis, was confined to his 
bed. In the presence of a witness, Enos, the instate gave to Julia Newman (P), a woman of 28 who had been his live-in housekeeper since she was 18, everything he owned. The instate, who had previously announced his intention to marry P, gave her several keys and announced that he was giving her everything in the house, then pointed out specific pieces of furniture, including a bureau, and repeated that every thing in the house was hers. A few days later he died. P sued Bost(D), the intestate’s administrator, for $3,000 (amount of life insurance policy on the instate which was kept in a locked drawer in the bureau to which only P had the key); $300, the value of an insurance policy on a piano upon which collected; $200.94, the value of the household property sold by D; and $45, the amount D collected on the sale of the property from P’s bedroom. P claimed the $3,000 and $200.94 as gifts causa mortis and the $45 and the $300 as gifts inter vivos. Decedent dies, gives Julia the bunch of keys. Says he wants all to be hers. One key opens the bureau, insurance policy inside. Piano, bedroom furniture: gifts inter vivos. Furniture, insurance policy: gifts causa mortis. 
PRIOR PROCEEDING: Trial ct.: jury found unanimously for Julia. 
QUESTION: Did intestate make a valid gift?  
HOLDING: No. Reverses all but bureau (and any other furniture that keys will open) and bedroom 
furniture, which was a gift inter vivos, and possibly the money from the piano, if she can show delivery. Keys are part of constructive delivery, so the delivery of the bureau was constructive. No intent nor delivery for insurance policy – he never mentioned it to her, he could have handed it to her. NC doesn’t recognize symbolic gifts – only constructive. Ct. doesn’t talk specifically about intent, because (1) that allows them to make decisions about deservedness; (2) delivery is easier to deal with; (3) intent is a Q of fact, whereas delivery is Q of law. Favors wills, tends to make decisions leaning toward wills. No constructive delivery allowed if actual manual delivery possible. Policy rational: (1)prevention of fraud; (2) uncertainty; (3) importance of intent. New trial granted.

c. Gruen v. Gruen  (NY 1986)			cb178
FACTS: Father wrote college son a letter telling him that he was going to give him a Klimt painting for his birthday. P’s father stated that he would retain possession, for his lifetime, however. For tax reasons, P’s father later sent another letter describing the gift without referring to the life estate. P’s father also asked that P destroy the first letter, which P did. When P’s father died, painting was still in poss. of stepmother. P never had physical possession of painting. D refused P’s request for poss. 
PRIOR PROCEEDING: Trial ct. found that inter vivos elements not satisfied and that a donor cannot retain a possessory life estate after purportedly giving personal property to another. App reversed.
QUESTION: Can donor who has reserved a life estate/life interest in phys. prop. make a valid gift of it? Must one have possession in order to accept a gift?
HOLDING: No. Father gave son an irrevocable present transfer of a future interest, while retaining a life estate. A clear connection b/t title and ownership in the present gift (w/ future interest/remainder interest) enough. Father had given up title – the only thing he retains is the life interest. Ct. concentrating on intent – father wants son to get painting; allows symbolic delivery – not possible to physically deliver a future interest in a painting; difficult to coordinate transfer of painting; accepts writing as adequate delivery. D: no differ. b/w title and possess. – must be treated as same thing (some cts. say this); son didn’t list painting in divorce assets list; allowing donor to make present gift while retaining life estate will lead cts. to validate other (invalid) testamentary dispositions of prop. BUT all elements were met: (1) Critical test – whether the donor intended the gift to transfer a present interest or intended the gift to have no effect until donor died. Once inter vivos gift is made, it is irrevocable and title vests immediately in the donee;  (2) delivery of letters satisfies delivery req’ment; (3) evidence shows that father intended to give the painting to P while retaining a life estate. There is a difference  between ownership and possession; (4) P accepted the gift because there was evidence that he had kept the 2d letter for over 17 years to verify the gift, and had told others about the gift.

II. Estates in Land (Is property static or dynamic?) (or How property changes) (or The only thing you can be sure of is that things change)

Summary of Estates in Land
	1. No Future Interest:  FEE SIMPLE ABSOLUTE
	2. DEFEASIBLE FEES
   		A. Future Interest in Grantor or Her Heirs
       			1. Automatic Transfer
          			a. Current Interest: Fee Simple Determinable
         			b. Future Interest: Possibility of Reverter
			2. Transfer Only if Future Interest Owner Asserts Her Interest
          			a. Current Interest: Fee Simple Subject to Condition Subsequent
          			b. Future Interest: Right of Entry
  		B. Future Interest in Third Party
     			1. Current Interest: Fee Simple Subject to Executory Limitation (we didn’t cover)
      			2. Future Interest: Executory Interest
	3. LIFE ESTATES
   		A. Current Interest: LIFE ESTATE
   		B. Future Interest
        		1. In Grantor: Reversion
        		2. In Third Party: Remainder

ESTATE SYSTEM:  FREEHOLD INTERESTS
Present Interest	Traditional Words to 
Create Interest	Future Interest		
		In Grantor	In Third Person	
Fee Simple Absolute	“To A”
“And Her Heirs”	----	----	
Fee Simple Determinable	“So long as”
“While”
“During”
“Until”
“Unless”	Possibility of Reverter	----	
Fee Simple Subject to Condition Subsequent	“Provided that”
“On condition”
“But if”	Right of entry for condition broken (or power of termination)	----
	
Life Estate	“For Life”	Reversion	Remainder	

3 kinds of problems: 
	(1) how do you deal with ambiguous instructions
	(2) what form do you use – must fit into categories
	**(3) substantive rules that prevent owners from creating certain types of interest (like rule against perpetuity) 

A. Feudal Estates (up from Feudalism)  cb187-198

Background: Starting with William the Conqueror, England developed a feudal ladder. William claimed the whole of England as his won property. In return for certain services (providing yearly a given quantity of food, a certain sum of money, and /or a number of knights and soldiers), William gave vast tracts to his tenants-in-chief, in order to fulfill their obligations to the king, subdivided, so to speak, their vast landholdings to subtenants who provided a given quantity of services. The subtenants would subdivide their land and obligations in turn. In time, a feudal ladder was built, on the bottom rung, the man in possession who actually grew the wheat, plucked the goose, etc. Since the services were fixed and the value of the land increased, landlords were anxious for their tenants to either die without heirs (in which case the land returned to the landlord) or to breach their obligations (in which case the landlord took the land).

Definitions of feudal terms:
	(1) seisin: being in possession of the land short of ownership. Important concept because only the holder of a 
freehold estate could have seisin. One was “seised” of the land if he had a freehold estate and was in possession or a tenant was in possession from him. Using the example of a landlord/tenant situation, it is the landlord that has seisin to a grantee. This was accomplished by a grantor going onto the land and the grantor’s giving the grantee, in front of witnesses, a clod of dirt or twig from a freehold estate, In a time where few persons could read or write, this formal ceremony was important to protect from fraud, duress, etc. 
	(2) subinfeudation: The process of creating another rung in the feudal ladder below the particular tenant. Any 
tenant had a right to subinfuedate, creating a vassal beneath him. When he did so, he became a mesne (middle) lord, meaning he had a lord above him and a tenant below him.
	(3) substitution: A tenant who did not want to remain in the feudal ladder could substitute another tenant in his 
		place with his lords’ consent.
	(4) primagenetica: first born son gets land, mandatory rules of inheritance; unchanged until 1540. 
	(5) escheat: If a tenant dies without heirs, the tenant ‘s position in the feudal ladder was eliminated, and 
		possession of the land or whatever rights the tenant had reverted to the lord.
	(6) forfeiture:  If a tenant were convicted of breaching his oath to his lord or of a felony, he forfeited his tenure 
		to his lord. The lord retook possession or tenant’s rights. 

1. Tenure

2. Feudal Tenure and Services
	a. Free Tenures
		(1) Military Tenures
		(2) Economic Tenures (or Socage)
		(3) Religious Tenures 
	b. Unfree Tenure: Villeinage

3. Feudal Incidents
	a. Homage and Fealty
	b. Aids
	c. Forfeiture
	d. Liabilities at Death of Tenant

4. Avoidance of Taxes (i.e. Feudal Incidents)

5. Statute Quia Emptores (1290)
Prohibited subinfeudation of the fee simple. Tenants gained rt. to substitute a new tenant for all or part of their land w/o the lord’s consent. Tenants still had to give services to lord. Quia Emptores had two main historical forces: (1) Established principle of free alienability of land; (2) Mesne lordships disappeared and land came to be held directly from the crown.

6. The Decline of Feudalism 

B. Fee Simple

What does the owner of a fee simple have?
	right to possess, to use; can sell it – 
	can leave it in a will (say who it goes to)
	if no will, goes to heirs (statutes determine which ones)
		spouse, children, parents, collaterals
	NO FUTURE interest in property – no one has any legal right to it

1. How the Fee Simple Developed
fee simple – may endure forever
life estate – may endure for the life of a person
term of years – may endure for some period of time measured by the calendar

a. Rise of Heritability
After Conquest – tenant had only lifetime tenure. Lords slowly recognized right of sons. By beginning of the 13th century, inheritance of fee simple was matter of rt., but payment of relief to the lord cont’d.

b. Rise of Alienability
200 years after Conquest – not alienable inter vivos and not devisable by will. Value of land rose, landowners increasingly sold land before death. W/ increasing demand, tenants got rt. to convey fee openly. By the end of the 13th century, Quia Emptores settled that land was freely alienable.	

c. Rise of the Fee Simple Estate
Fee (was simply a holding) became an alienable fee simple, a freehold estate. Lawyer thinks of estate in land, not land itself. Fee simple is absolute ownership. 

2. Creation of a Fee Simple
	Year 2000 – can create fee simple absolute with various language (used to be very specific):
		“O to A” 	“O to A and her heirs”	“O to A in fee simple” 			
		owners/grantors are presumed to give everything (to A) in fee simple
		“O to A and her heirs” does not give heirs ANYTHING

3. Inheritance of a Fee Simple 
If person dies intestate (w/o will), prop. descends to heirs. Living person has no heirs (yet!). Preferred as heirs in following manner: 
	(1) Issue. synonymous with descendants
	(2) Ancestors. Parents take as heirs if deceased has no issue.
	(3) Collaterals. All persons related by blood who are neither descendants nor ancestors.
	(4) Escheat. If person dies w/o heirs, escheats to the state where the prop. is located. In feudal times, escheated to the overlord.

4. The Fee Tail
“O to A and the heirs of his body” --- abolished in all but four states: states deal with it by (1) create fee simple in A; (2) disentail it during lifetime by conveying it – convey it to a straw, straw conveys it back to you, which disentails it; (3) fee tail is read as “fee simple subject to divestment if A dies w/o issue”: if dies w/o issue, remainder goes on as fee simple absolute. If A dies w/ children, passes on as fee simple absolute, ties it up for one generation. intent of testator is filled, but land not tied up.

C. Life Estates
grant to A for life, interest in another party 
O to A for life – if you don’t name anyone, it will revert back to O after A dies
			OR
O to A for life and remainder to B and her heirs – B is remainder person
The granting language could be  “to , so long as he lives” or to “b for his life.”
-- main thing with life estate – can’t give it to anyone when you die. PLUS bunch of limitations
can sell “life estate pur autre vie” – for the remainder of one’s life period

Important points in transferring life estate: 
	A. Discerning the intent of the testator/grantor (White v. Brown, Baker v. Wheedon)
		(1) first source: actual language used
			lawyer must convert wishes into specific language – must be something to signal intent
			Rules of construction and preferences
		(2) second source: evidence of surrounding circumstances
			in White v. Brown, if circumstances different, ct. could have decided different intent.

	B. Basic policy concerns
	Rule against constraints on alienation -- Cts. don’t like restraints – viewed as antithetical to philosophy of country (landed gentry not desired) -- BUT cts. treat partial restraints differently than absolute restraints. 

	Restatement takes the view that forfeiture restraints are valid and disabling restraints are not. Forfeiture are not absolute restraints – you lose the property. Disabling: prevents creditors from accessing asset; don’t like that you enjoy benefits while running up debt

	C. Relationship between life tenant and owners of future interests (Baker v. Wheedon)
		how do you work that out w/ respect to property? 

WASTE: relationship b/w life tenant, future interest person (heir, reversioner, remainderman) who has possessory interest could be liable for damages. Ameliorative waste doctrine dead in U.S. even if changes increased value, you could be liable for waste.

1. White v. Brown (TN 1977)		 cb210
FACTS: Lide devised her home to White (P) (elderly sister-in-law), “to live in and not to be sold.”  P contended that she received title to the home in fee simple. Brown (D) and the testator’s other heirs at law claimed that the will conveyed only a life estate to P, leaving the remainder to pass Ds by intestate succession. 
PRIOR PROCEEDING: The Chancellor held for Ds and the court of appeals confirmed. P appeals.
QUESTION: What type of estate did Lide leave to White?
HOLDING: Ct. decides it is a fee simple absolute. Restraint on alienation is VOID (Policy is for prop. to be freely alienable). (1) Intent was ambiguous, thus rule of construction was applied in interpretation. (2) Ct will apply statutory rules of construction in effect in TN. Statute provides that fee simple is passed unless the words and context of the instrument clearly demonstrate an intention to convey a lesser estate or interest. In contrast to the common law presumption that a life estate is intended unless the intent to pass fee simple is clearly expressed in an instrument. (3) D did not supply sufficient evidence of an intent to limit P’s interest to a life estate. (4) Doubts should be resolved against limitation and in favor of the absolute estate. So interpreted, the caveat “not to be sold” expresses an attempt to impose a restraint on alienation of the fee, rather than an attempt to create a life estate. The attempted alienation, being inconsistent with the principle of free alienability of a fee estate, is void as contrary to public policy. 
Class discussion: Entirely contextual, based on intent of the decedent. What did Lide want? She 
wanted White to have a home to live in, shelter until she died. If she could no longer live in house (because of sickness, etc.), she would have to have money to go elsewhere and not selling the house would not give her money to do that.  
DISSENT: Language was not ambiguous – followed a basic rule of construction. Ct. is supposed to give effect to all language, can’t ignore some of it. Knew how to make gift – could have made outright gift to White. 

2. Baker v. Wheedon   (MS 1972)		cb 219
FACTS: John Wheedon leaves prop. to Anna, his third wife, then her children; if no children, to his 
grandchildren. Grandchildren never knew him, didn’t know about prop., came into knowledge in haphazard way. Anna wants to sell property to live off the income. Grandchildren have future interest, though. They argue that the prop. value will be almost double in 4 yrs. b/c hwy will be built (though the numbers lie – what someone is willing to pay includes speculative value). Grandchildren have no sentimental value attached to prop.—they want it sold. 
PRIOR PROCEEDING: Lower ct. for Anna: sell land.
QUESTION: Should farm be sold to provide for Anna’s needs?
HOLDING: Ct. urges partial sale of land – pieces sold off to alleviate Anna’s hardship/“reasonable needs,” proceeds invested, still get income. Protect remainderman’s interest and current possessor’s interest. Ct. feels that selling the land would be a drastic remedy. (though compromise doesn’t make a lot of sense, b/c forces lawyers to be in ct. a lot to request more sales for Anna’s “reas. needs.” Way for John Wheedon to provide for Anna today: trust.
Class discussion: What does Anna want? Enough $ to live on for the rest of her life. Facts that support 
her: She contributed to land during and after John’s life; relationship w/ John compatible; he left it to her; he wasn’t in touch w/ daughters or grandchildren; grandchildren didn’t know about land; numbers are suspect – present mkt. value does support speculative value. Must think about what Anna wants and what John would have wanted for her and of the land. Grandchildren’s arg. would be stronger if John wanted land to remain a family farm and they were interested in farming it.

3. Seisin
Seisin was possession of particular kind and w/ part. consequences. Before 1536, freehold estate could only be transferred w/ “livery of seisin”: delivering seisin by some symbolic act and making statement.
	
D. Defeasible Estates

General defeasible fees simple:
	*smaller than fee simple absolute
	*estate created so as to be defeasible upon the happening of a future event
	*may last forever (potentially infinite) or may come to an end upon the happening of an event in the future
	*granted fee simple until designated set of facts ceases to exist or condition occurs – smaller than fee simp. abs.
	*residue owned by person who created it – possibility of reverter
	*don’t need to put poss. of reverter in explicit terms
		however, presumption against forfeiture, so better to put reverter terms in it 
			– if you don’t make it plain that it will revert, cts reluctant to give it up. 
			– might say it’s some other estate for which remedy is lawsuit or penalty other than forfeiture
	*sometimes used for land use control
	*whenever transferred, transferred subject to the same conditions 
	*words that merely state a motive do not create a determinable fee

Fee simple determinable: 
	*when conditions cease to exist, reverts immediately and automatically (penalty is forfeiture)
	*Typical language has durational aspect: “to A so long as  . . .,”  “to A while . . . ,” or “to A until . . .” (during 
		the continuance of …, etc.)  
	*The grantor’s future interest is possibility of reverter

Fee simple subject to condition subsequent
	*does not revert immediately 
	*grantor can oust person if condition ceases to exist; must affirmatively take it
	*Typical language indicates that the estate may be divested if the specified event happens:
		“but if …” “provided, however, that  when the premises …” “on condition that if the premises …”
	*The grantor’s future interest is a “right of entry” (or “power of termination”)

GENERAL: 
ct. prejudice against defeasible fees b/c penalty is forfeiture  -- cts. prefer fee simple subject to condition subsequent – responsibility on claimant to act – nothing automatic -- medium conservation principles that limit alienability in affordable housing: want something that will defease prop/unit if not kept affordable -- we are haunted by idea of “dead hand control”: past (dead) controlling the present also feeds into idea of hierarchy b/c land/reverter will be held and controlled by past owner

Adverse possession and fee simple defeasible:
	From the grantee’s perspective, determines whether can use adverse possession or not
	Ex.: Grant in 1900. Condition violated in 1935. Heirs bring action to quiet title in 1983. 
		If fee simple determinable, heirs cannot quiet title, because they had been adversely possessing for 48 yrs.
		If fee simple subj. to cond. subseq., heirs can quiet title, because technically never adverse

	When do you start measuring adverse possession?
		f.s. determinable: when condition broken, automatically reverts, starts st. of limit. running
		f.s. subj. to cond. subs.: theoretically, not adverse until rt. of entry is exercised. Stat. of lim. doesn’t begin to 
			run until that time.

Defenses available:
	*Grantor/heirs failed to exercise rt. of entry 
		laches (time): purely equitable, waited too long, delay is unfair
		waiver (waiver your rts.): whether person w/ rt. waived their rt. of entry 
		WORKS FOR FEE SIMPLE SUBJ. TO COND. SUBSEQUENT
	*Grantee raised the value of the land (invested something, spent money)	
		estoppel: spent money in reliance on someone else’s failure to act -- when grantor/heirs failed to exercise 			right, grantee chose to invest on reliance of the failure. 
Grantor/heirs can be estopped from exercising rights. They’ve acted in particular way, so reliance is justifiable. Must have made an investment (purchased one painting to show in the house v. purchased 10 paintings, then built an adjacent museum)
		WORKS FOR EITHER FEE SIMPLE DETERMINABLE OR FEE SIMPLE SUBJ. TO COND. SUBSEQ.

1. Mahrenholz v. County Board of Trustees  (IL 1981) 		cb231
FACTS: Huttons gave 1 ½ acres of land to Bd. of School Trustees “to be used for school purposes only.” Sold parcel to Jacqmains – thought they were selling future interest, but statute says fut. int. not devisable (can’t convey it). Jacqmains gave deed to Mahrenholzes (Ps). Son of Huttons, Harry, sold interest to Ps. Issue: whether fee simple determinable (Harry would have automatically gotten reverter if condition had ceased, would have s.thing to pass on) or fee simple subj. to cond. subse. (if condition not upheld, Harry would have had to re-enter - can’t convey this to 3rd party, though he can release School Bd.). 
PRIOR PROCEEDING: Trial ct.: warranty deed created fee simple subj. to cond. subseq. w/ right of entry, not a determinable fee followed by the possibility of reverter. Ps appealed. Here: Reversed and remanded.
QUESTION: Did the trial court correctly conclude that the Ps could not have acquired any interest in the school property from the Jacqmains and Harry Hutton?
HOLDING: 1941 deed created a fee simple determinable, followed by a possibility of reverter in the Huttons and their heirs. Trial ct. erred in holding that Ps could not have acquired any interest in the prop. from Harry Hutton. Remanded to determine if Harry’s conveyance was legally sufficient to pass his interest, if Harry effectively disclaimed interest, and if Ds have ceased to use prop. for “school purposes.” (1) Though deed did not contain classic language used to create a fee simple determinable (“for so long as,” “while,” or “until”), ct finds that grantors intended to create such an estate followed by a possibility of reverter.  (2) The word “only” following the grant “for school purposes” constitutes a limitation within the granting clause. This suggests that a limited grant was intended, rather than a full grant subject to a condition.  (3) When read in conjunction with the phrase “otherwise to revert to grantors,” the granting clause seems to trigger a mandatory return rather than a permissive return. There is no language, such as the words “may re-enter,” indicating that the grantor must act affirmatively to retake possession of the land.

2. Mountain Brow Lodge No 82, Ind. Order of Odd Fellows  v. Toscano  cb240 
FACTS: Action to quiet title to real property. Toscanos deeded lot Lodge (P). The deed contained  a clause which provided that if (1) (use) the land failed to be used/benefited by P or (2) (sale) if P sold or transferred the lot, then the lot reverted back to Toscanos, their successors, heirs, and assigns. Toscanos died. P sued heirs (D) to quiet title in itself. P lost and appealed. P contends the restriction was an absolute restraint on alienability and thus void. D contends deed created a fee simple subj. to cond. subs.
PRIOR PROCEEDING: Trial ct. for Ds. 
QUESTION: Is the sale condition a restraint on alienation? Did the use condition create a defeasible fee or is it also a restraint on alienation?
HOLDING: Restriction on sale is void – can’t have limits on alienation (“repugnant to the fee”). Ct. upholds restriction on use. A grantor may restrict use of the land.  A limitation that restricts the sale of land and property use is not void as a restraint against alienation. Ct. says deed is a “fee simple subj. to cond. subse. w/ title to revert to the grantors” – these two don’t fit together. Error of terminology, which is somewhat typical. (Restriction on use means that it can’t really be sold in a practical sense, b/c who would want to buy land that can only be used by one party?)
DISSENT: The entire clause is invalid as a restraint upon alienation. The clause the majority allows to stand has the same effect as the clause forbidding the sale of the land; it limits who can use the land w/o reverting to the grantors. This is impermissible.

	When are conditions restraints on alienability? Factors:
		(1) What effect does it have on marketability: how many people will still be willing to buy land?
			one or two v. many -- w/ affordable housing, many -- w/ Oddfellows, only people willing to rent to them
		(2) How will it be used? 
			cts. make a distinction for charitable orgs. Under IRS rules, charities are exclusively for religious, 
				educ., prevention of cruelty to animals/children, etc. NOT social – Oddfellows is ques. charity.
		(3) Effect on investment/improvement in property
			If there’s a restriction on property, is lender going to lend?
			Banks use threat of foreclosure as security to lend for improvements, borrowing $, paying off loans
		(4) Forfeiture as penalty if you violate condition ultimately effects alienability
			Buyer risks losing property if they buy it (if penalty is a fine, buyer could pay it and still have prop.)

		BUT might have positive effect on value of surrounding land 
			
3. Keswick dispute  Supp.
Coggins  gives money to a nursing home, puts a condition on the way it can be used: could only go to the facility if it served only white people. If they violate condition, goes to the Univ. of MD hospital. No condition on how U. of MD uses $. 	Con law: racial restrictions banned, but only if enforced by the gov’t. Congress has passed a bunch of statutes to cover private people, housing, employment, public accom (incld. Civil Rights Act 1866) – first interpreted as applying to private action - 1968. There are laws out there saying Keswick cannot comply w/ Coggins’ condition.

	Estoppel argument: Kewsick acted in reliance of expectations of receiving the $.

	Ct. interpreted in highly technical sense: 
		if fee simple determinable, ends automatically, no state action; can’t be stopped.
		if fee simple subj. to con. subse., fam. needs ct. action to enforce; can be stopped.
III. Co-Ownership – Common Law Concurrent Interests 

A. Types, Characteristics, Creation
common law-  three basic forms of concurrent tenancies -  tenancies in common, joint tenancies, and tenancies by the entirety.

	(1) Tenancy in common
		*simplest and default form 
		*created by an express conveyance or when the property is inherited 
		*each tenant (co-owner) of an interest has a stated share of the property
		*each tenant has an undivided interest in and equal right to possess the whole property
		*unless co-tenants object, one tenant can enter and use the whole property
		*when one tenant dies, interest goes to heir (there are no rights of survivorship) 
		*tenants in common can have unequal shares of the property and need not have the same estate 
			**unless otherwise stated, it is presumed that a conveyance creates a tenancy in common.
			**tenants in common can petition the court to divide the property among them. 
				The court will do so if it is in the interests of the tenants as a whole.

	(2) Joint Tenancy 
		*each tenant has an undivided interest in the whole property
		*distinctive characteristic of this tenancy is the right of survivorship 
			*when one tenant dies, the surviving joint tenants receive the decedent’s interest in the property. 
				Decedent’s interest can never pass to his heirs (unless one of them happens to be a joint tenant).
		*four unities required for jt. tenancy. If one is interrupted, jt. ten. is broken, becomes a ten. in common. 
			(1) Unity of Title: each joint tenant must acquire title by the same conveyance, be it a deed or a will. 
This requirement must be carefully scrutinized for its pitfalls. Often a husband will desire to convey property to himself and his wife as joint tenants. If he does this by “granting Blackacre to myself and my wife, as joint tenants,” all he has created is a tenancy in common. The reason for this is that at common law no one could convey property to himself. Thus, the husband’s conveyance to himself and his wife amounted to a conveyance to his wife of one-half of the property, with him retaining the other half.
			(2) Unity of Time: each joint tenant’s interest must vest at the same time. 
If G conveys Blackacre “to A for life, then to her heirs and the heirs of B as joint tenants,” tenancy in common is created. Failure of the concurrent estate to vest in A’s and B’s heirs at same time.
			(3) Unity of interest: each joint tenant’s interest must be equal and must be the same type of estate. 
Thus, a conveyance of one-third of Blackacre to A for life and the other 2/3rds to B in fee simple fails because (1) the interests are not  equal and (2) the estates are not equal (one is a fee simple, the other a  life estate).
			(4) Unity of Possession: when each joint tenant acquires her interest, she must have the right to 
possess the whole. After the tenancy is created, the tenants can agree that only one of them is to have actual possession of the property.
		*typical language: Today, to create a joint tenancy, must clearly make this intention known. 
			Ex.:  “To A w/ right to survivorship as joint tenants.”
		*right to partition - to get out of joint tenancy
			(a) by agreement of the parties
			(b) by ct. partition or a ct. ordered sale
			(c) to create a tenancy in common from a joint tenancy, can sell your interest to a straw
			(d) can’t sever joint tenancy by a will
		*severance (reverts to a tenancy in common): 
			A joint tenant may sever rt. to survivorship by severing any of the unities. Common law viewed this 
			strictly. Modern law generally requires that joint tenant intend to sever one of the unities. 
				(a) Voluntary partition – selling to a straw (can sell part of interest
				(b) Involuntary severance – one of the 4 unities is disturbed
					(1) conveyance by one joint tenant creates a tenancy in common for that person with 
						remaining joint tenants keeping joint tenancy with each other
		*if one JT dies, creditor can’t come after his portion of prop. Must be creditor of both jt tenants to do so.
		*lease of property in joint tenancy: does not sever JT b/c only for specified period of time.  If one of JT 
			leases, the lease expires upon his death (burden on lessee to obtain signatures from all joint tenants.)

	(3) Tenancy by the entirety
		*can exist only between husband and wife 
		*quite similar to joint tenancy because:
			*four unities must be satisfied (plus a fifth: marriage)
			*there is a right of survivorship 
		*severance by one of the tenants acting alone is impossible 
			*implications for creditors – some protection against (Sawada v. Endo)
		*In the states which still recognize this form of tenancy (many states no longer recognize it), it is presumed 
			that a conveyance  to a husband and wife creates a tenancy by the entirety.

	Rights and Duties of Co-Tenants
		(1) Rule of Accountability: One Co-T does not have to account to another cotenant for 1/2 of his profits.
			“In the absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not 
			liable to his cotenants for the value of his use and occupation of the property.” (Spiller v. Mackereth)
		(2) Exceptions – when a Co-T will be accountable:
			(a) Ouster: keeping Co-T off property – if refused actual entry, can demand rent under ouster 
Must actually attempt to enter (can’t simply ask for rent) (Spiller). Ouster is fact-bound: might have diff. results under diff. circumstances (consider domestic violence case)
			(b) Agreement to Share
			(c) Lease by Co-T to 3rd party
			(d) Minority jurisdictions: occupying cotenant obliged to pay rent
		(3) Contribution
			(a) Rt. of one Co-T1 to force other Co-T to pay share of some expenditure Co-T1 paid on the prop.
			(b) No contribution for improvements made to prop: contributions and taxes only for necessary repairs.

B. Severance of Joint Tenancies

1. Riddle v. Harmon   (CA 1980)		cb326
FACTS: Mr. Riddle and his wife acquired a parcel of real estate as joint tenants. Mrs. Riddle decided to terminate the joint tenancy so she could dispose of her share by will. Her attorney had her execute a deed granting herself an undivided one-half interest in the real estate. The deed specifically stated that the purpose of the deed was to terminate the JT. 
PRIOR PROCEEDING: The trial court refused to sanction plan to sever joint tenancy and quieted title to the real estate in Mr. Riddle (D). The executrix of Mrs. Riddle’s will appeals.
QUESTION: Could Mrs. Riddle unilaterally sever joint tenancy by transferring her interest to herself?
HOLDING: Yes. A JT may terminate a joint tenancy by granting one half undivided interest to herself. Ct. looks at arguments why she can’t do it, then sets them aside in favor of intent. She should be able to do directly what she’d be able to do indirectly: (1) Each JT has the right to destroy the joint tenancy without consent or knowledge of the other joint tenant by conveying his or her separate estate by gift or otherwise. (2) At common law, the only way for a person to create a joint tenancy with another person was to use a “strawman,” who would receive the property, then re-convey it to the original owner plus the other joint tenants. CA changed this rule by statute so that a joint tenancy conveyance may be made from a sole owner to herself and others;  (3) Prior cases have held that a joint tenancy cannot be terminated without a using a straw; i.e., the joint tenant would have to re-convey to the former joint tenant. This is outdated: can be met by using a trust or an assoc. of the attorney involved as straw. Because there is no reason other than tradition for following the feudal law req’ments, the straw procedure is no longer necessary. (4) Other ways to create an indestructible right of survivorship is creating a life estate with a contingent remainder in fee to the survivor; a tenancy in common in fee simple w/ an executory interest in the survivor; & a fee simple to take effect in possession in the future.
Ct. fails to consider modern objections to this action: husband might have made plan for estate, can’t follow through with that. There was no issue with probate, now there is. Could she do this by writing it down, or does she need a lawyer? There is no notice req’ment for the benefit of the other jt. tenants. 

2. Harms v. Sprague  (IL 1984) 		cb332
FACTS: Harms (P) and his brother took title to some real estate as joint tenants with right of survivorship. P’s brother obtained a mortgage on the joint tenancy. When his brother died, P sued Sprague (D), the executor and sole devisee, and the mortgagees, to quiet title and to obtain a declaratory judgment . D counterclaimed, seeking recognition of his interest as a tenant in common; says that mortgage severed rt. of survivorship and he should get ½ interest in the house. 
PRIOR PROCEEDING: The trial crt found that the mortgage severed the joint tenancy and survived the death as lien against D’s one-half interest. The appellate court reversed, and D appeals. Here: affirmed.
QUESTION: Is a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property? Does such a mortgage survive the death of the mortgagor as a lien on the property?
HOLDING: Harms gets the whole property, free & clear. No, a mortgage does not sever a joint tenancy. 
Unity of title was preserved b/c mortgage was only a lien on the brother’s interest, which was extinguished at his death. No, a mortgage does not survive the death of the mortgagor. The joint tenant did not take the mortgage subject to an encumbrance. Surviving brother’s interest was unencumbered when he got title (when joint tenancy began), so it must be unencumbered when he gets full interest. 

How facts of this case (in which mortgage doesn’t survive) affect joint tenancy:
(a) lender won’t give mortgage w/o consent of both parties
(b) bad judgment against land (lien creditor) will not survive death of co-owner (therefore, go after prop., as soon as you can)

		interest of the whole exists from the beginning of the right of survivorship 
		
	Leases: not intended to give rt. of survivorship
		– cannot get more on a lease than person has to give
		– joint tenant can only lease what they have: their share (½ interest in the whole)
		– when lessor dies, lease ends b/c jt. tenancy trumps
	Practical: get both jt. tenants on lease

C. Relations among Concurrent Owners

1. Partition
The act of dividing; esp. a division of real property owned by two or more persons into individually owned  interests. Available to any joint tenant or tenant in common; not available to tenants by the entirety.

a. Delfino v. Vealencis  (CT 1980)  		cb341
FACTS: Delfinos (Ps) and Vealencis (D) own prop. as tenants in common. Ps own 99/144 interest and D owns 45/144 interest, on which she occupies a dwelling and operates a rubbish and garbage removal business. Ps propose to develop property into forty-five residential building lots. Ps want partition of  prop. by sale, w/ division of proceeds according to interests of parties (wants to buy land). D moved for a judgment of in-kind partition (lives there, has business).
PRIOR PROCEEDING: Trial court ordered a sale, because the value of the property is less b/c of a garbage center – wouldn’t get planning for residential. D appeals: not supported by facts.
QUESTION: Did the trial ct. properly order the sale of prop. owned as tenancy in common? 
HOLDING: Since the prop. may be physically divided and the interests of owners will be better promoted by partition in kind, trial ct. erred. Standard for partition by sale: (1) cannot be physically split; (2) best interests of the parties (how much you could sell as whole vs. sell as parts). Petition in kind far preferred, though more rare (b/c takes into acct. background, personal, subjective ideas). Here, D would lose business if sold; plus, Ps had not questioned zoning board to see how they would zone acreage. This is not typical result – typical is to look at value per acre. (see Notes cases, p. 436-7: Courts do not necessarily respect the fact that one of the co-owners also owns adjacent property when deciding how or whether to divide up the land. Johnson v. Hendrickson, Gray v. Crotts).

	Partition questions (cb348 question 5):
	(a) A & B have agreement not to partition land; A subsequently brings partition action. ALIENABILITY: 
		ct. holds that agreement w/o end point unduly restricts alienability – A allowed to partition.
		(b) agreement for a limited time period. Ct. hold it valid: agreement for limited purpose/period of time 
			furthers alienability.

2. Sharing the Benefits and Burdens of Co-Ownership

a. Spiller v. Mackereth  (AL 1976)		cb348
FACTS: Spiller (D) and Mac (P) owned a building as tenants in common. When lessee vacated, D entered  the building, began using it as a warehouse and installed new locks. P wrote a letter demanding that D vacate half of the building or pay half the rental value. D refused.
PRIOR PROCEEDING: The court found for P, awarding $2100 back rent. D appeals.
QUESTION: Can a cotenant be found liable for rent if the other cotenant demands it back?
HOLDING: No evidence that supports a legal conclusion of ouster, so D does not owe rent to P. P never  made a physical attempt to enter the premises, thus cannot claim ouster. Before an occupying cotenant can be liable for rent, he must have denied his cotenants the right to enter. Simply requesting the occupying cotenant to vacate is not sufficient as an attempt to enter b/c the occupying cotenant holds title to the whole and may rightfully occupy the whole unless the other cotenants assert their prop. rights. In the absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property.  (this is different from an adv. possession claim b/c occupying cotenant would need to claim sole ownership – deny fact of co-owner’s interest – for it to be adverse.)
(what can co-owner do? (1) can say she hasn’t lost interest; (2) can claim waste – deteriorating value; (3) can seek partition – physical partition or partition by sale – then move it into Q of mkt. value; (4) move into space – lease share, rent share, exercise possessory interest (then if denied, can claim ouster).

b. Swartzbaugh v. Sampson  (CA 1936)		cb352
FACTS: P and her husband owned as joint tenants 60 acres of land. Her husband entered in an option to lease this property to Sampson (D).  P sued her husband and D to have the lease canceled.  (Sampson leased the property in order to remove walnut trees and construct a boxing pavilion on it. P disapproved of this and would not sign any lease. Her husband and D then entered into the lease without P’s knowledge.  Subsequently, the two men entered into a second lease.)
PRIOR PROCEEDING: D’s motion for nonsuit (dir. verdict) was granted; P appealed.  
QUESTION: Can one joint tenant, who has not joined in leases executed by her cotenant and does not agree with lease maintain an action to cancel the lease? 
HOLDING: Wife does not get cancellation of the lease b/c husband has undivided half interest to property, and has a right to lease out his interest. Since lessee doesn’t sever joint tenancy, lessee has a right to stay on property. Leases are valid contracts giving to Sampson the same right to possession of the leased property that Mr. Swartzbaugh had, and cannot be cancelled by P.

What can Mrs. Swartzbaugh do now? 
– “acquiesce and accounting”: acquiesce on deal & demand accounting from husband for rent received 
– “partition of the fee/in kind or sale”: demand partition of the area, either in kind or in sale – BUT would lose right of survivorship		
– “partition of the leasehold”: Sampson has 10 yr. lease. Could sell the leasehold – partition of the sale –  interest in prop. for 10 years. She would get half of whatever was generated.
– get physical partition of the leasehold: for 10 yr. period, ct. could physically divide up the leasehold.
– could move onto premises – exercise her right to occupy her share.
– he might try to bar her, which would be an ouster; she could demand half the reas. rental value
– When Mr. Swartzbaugh dies, lease disappears
– if partitioned as a leasehold, leasehold would continue to exist for 10 yr. period not subject to survivorship. Otherwise, lease ENDS.

D. Marital Interests
(from section on gifts, Newman v. Bost): Spouses supposed to have joint dominion and control over things in the marital home.

History of marital interests: 
* Under common law, husband held entire interest in, power to alienate, property. Since he could alienate, creditors could get at property subject to rts. of survivorship.
* In 19th century, Married Women’s Property Acts were passed. Married women were not allowed to own, sell, acquire prop. w/o husband. Married Women’s Property Acts gave women the rt. to hold, sell property as if single. BUT did not address tenancy by the entirety.
* Group II states: both husband’s and wife’s creditors can get at property. What would happen? (1) execute on debt; (2) end up in relationship w/ husband – concurrent ownership. cts. call it tenancy in common (though not exactly). If wife survives husband, they have interest/rts. of survivorship (kind of like jt. tenancy).
* Hawai’i goes with the majority of jurisdictions – creditors can’t get either wife or husband’s property. Treat husband just like the wife was treated. Must deal with both owners in all affairs. 
* MA protects ONLY domicile – creditors can get to other property
* This is why both parties sign off on credit cards, other interests

1. Sawada v. Endo  (HI 1977)			cb363
FACTS: Action to set aside a conveyance of real property. The Ps were struck by a car driven by Endo (D). On the date of the accident, D owned a parcel of real property through a tenancy by the entirety. Shortly after the accident, D and his wife conveyed, without consideration, the real property to their sons. The deed was recorded shortly before the auto accident trial. Ps won the auto accident trial, and, after being unable to satisfy their money judgment from D’s personal property, sought to have the D’s property conveyance set aside so they could satisfy the money judgment. (Wife of D died a few days after the auto accident trial.) 
PRIOR PROCEEDING: Trial ct. refused to set aside the conveyance; Ps appealed.
QUESTION: Is the interest of one spouse in real property, held in tenancy by the entirety, subject to levy and execution by his or her individual creditors?
HOLDING: No. The interest of one spouse in real property held in tenancy by the entirety is not subject to levy and execution by his or her individual creditors. Rationale: (1) Marital estate stays intact – permits planning for children’s educations, family emergencies. (2) Married Woman’s Property Acts abrogated husband’s common law dominance over the marital estate and insulated wife’s interests in the estate from sep. debts of her husband. (3) Each spouse owns entire estate. (4) Not unfair to creditors – can combine signatures.

IV. A Short Detour into Mortgages

A. Mortgage Basics

Mortgages Background: 
* Traditional mortgage: deed in fee simple given to lender, with a condition subsequent that if the mortgagor paid off the debt by law day the lender’s deed would be extinguished. If mortgagor couldn’t pay it back, the lender owned the land in fee simple absolute. 
* Not just a loan. 
* Sign a note and a mortgage
	– Obligation is to pay the note
	– As you pay off the note, you get equity 
	– In conjunction, mortgage is the security device to go after property if you don’t pay.
	– Mortgage is not debt itself; it is the security arrangement
* Under early mortgage arrangements, if you didn’t pay by the law date, you lost everything
	– went to ct. of equity, became the practice that ct. of equity would give you relief from law date (extend it)
	– this became known as equitable right to redeem
* Lender never knew exactly when their title was firm
	– Procedure developed where lender could go in and cut off rt. to redeem (foreclose on it): foreclosure
* Redemption impossible after decree of foreclosure
	– “strict foreclosure” – no restitution of any amount 
	– even if you only owe $10,000 on $20,000 property, you lose it all
* early 18th century – if you went for foreclosure, you must sell the land in public sale, then pay over the mortgagor the amount over what you’re owed
* in most places now, public sale is the law
	– judicially ordered/overseen by strict procedures

Process of buying a house: Family submits loan application to lender (bank, savings and loan). Lender checks their credit rating, earnings, and job security. Lender commits to finance a house on specific terms. Family gives mortgage in return; mortgage gives the lender a claim against the land for repayment of the money loaned, prior to other creditors. Family also gives lender a note promising to pay the money with interest. Family receives deed to property; loan proceeds go to seller.  

Problem 1  cb635-636: 	Byars – $100,00 house, pays $10,000; mortgage of $75,000, jr. loan of $15,000
						They default. At public sale, house goes for $50,000. How is it distributed?
						All goes to first lender. Can sue for the deficiency in all but a few states.

When you go to get a mortgage, goes on the deed according to the date.

Hypo: If got house for $100,000, mortgage for $75,000, second mortgage for $15,000, sell for $200,000 – 
		money goes to discharge previous loans first (in the order that they were borrowed). don’t want to work 
		with property that has a lien on it already.

If mortgagee forecloses, later loans are wiped out (no longer exist)
If 2nd mortgagee forecloses, later loans are wiped out (no longer exist)
	obligated to pay back anything over the foreclosure sale
If the real estate mkt up, won’t be foreclosures, but can always sell the prop. 

1. Murphy v. Financial Development Corp.  (NH 1985)		cb637
FACTS: Ps behind on mortgage payments. Lenders unsuccessfully discussed revising payment schedule, postponed foreclosure sale once, attempted to arrange new financing with third party, conducted frcls sale. Lender only prospective buyer bought for  $27,000 - promptly resold for $38,000.
PRIOR PROCEEDING: Lower ct.: ruled for Ps - lenders failed to exercise good faith and due diligence in obtaining a fair price. 
QUESTION: Did the lower ct. err in concluding that the lenders had failed to comply with the rule that a mortgagee executing a power of sale is bound both by the statutory procedural req’ments and by a duty to protect the interest of the mortgagor through the exercise of good faith and due diligence? 
HOLDING: Yes. In executing a power of sale, a mortgagee must exercise good faith and due diligence in obtaining a fair and reasonable price under the circumstances, even to the extent of adjourning the sale of establishing an upset price below which he will not accept any offer. (1) In order to constitute bad faith, must be intentional disregard of duty or a purpose to injure. Inadequacy of price alone is insufficient to demonstrate bad faith unless the price is so low as to shock the judicial conscience. Lenders did not act in bad faith: complied with statutory requirements of notice, etc. (2) Test for lack of due diligence: whether a reas. man in the lenders’ place would have adjourned the sale, advertised commercially, or taken other measures to receive a fair price. Lenders did breach due diligence, b/c they did not advertise, publish, or otherwise give enough notice to the general public of sale. Req’ment that sale be conducted in a reas. manner means that they use ordinary methods of making buyers aware. Use ad in daily newspaper for homes, or in financial section for business property, but not ad in legal publication. Damages: (a) Where there is bad faith, damages are equal to the difference between the fair market value and the price obtained at the sale. (b) Where there is lack of due diligence: damages are equal to difference between a fair price for the property and the price obtained at the sale. 

V. Landlords and Tenants

A. Leaseholds and Leases
	* Erosion of principles – revolution of LL/Tenant law in the 20th century
	* Statutory law and litigation – where changes happened/are happening
	* began in England – usury law/lending device
		– if you needed $, let your land to someone who would work the land, give you interest
		– then mortgage law, but leaseholds lived on b/c useful – way to get land worked, make $ off of it
	* lowly origins, tenants had no rights, not even a possessory interest
		– called “non-freehold estates” (not meaningful now, except as cultural concept)
	* life tenant – right to protect possessory interest; whereas regular tenant – no right
	* eventually, relationship conceived of as conveyance of possessory interest for a period of time
		– LL gave up possessory interest to tenant – held reversionary interest
		– this is why LL/tenant law part of property law and not contract law
		– now, changes have made it less like property law and more like contract law
	* developed in agrarian areas – some rules that made sense then no longer make sense for urban/commercial
	* for years, tenants had one right – to pay rent. Common law focused on LL’s rights, since tens didn’t have any
	* four kinds of tenancies. difference between them is the kind of notice required to terminate them
		– if no proper termination, LL/tenant relationship continues, with all that the relationship entails.
	* leases are alienable, can pass by will, can go on for years
	* customarily conveyed in written instrument
		– most state say if more than one year, must be in writing
	* Procrustean model/analysis – ct. tries to fit cases into one of the categories of tenancies
		(Procrustes was a mythical figure who placed everyone he captured into an iron bed. If hung over, he cut 
		whatever hung over off. If small, tried to stretch.)

1. The Term of Years
* fixed period of time (any fixed term – days, months, years)
* the calendar dates for beginning and end are ascertainable; ex.: “one year after from the date of signing this lease” (a lease for more than a year has to be in writing)
* alienable, divisible, inheritable
* stated; created by writing (entered lease orally, most cts will say is periodic tenancy)
* no notice required to terminate b/c lease provides termination date

2. The Periodic Tenancy 
* fixed period of time until LL or T gives notice of termination.
	– examples are “from month to month,” or “from year to year.” Absent contract, terms and conditions carry over from period to period.
* endures until one party gives proper notice to terminate tenancy at end of period - without notice, automatically renews
* requires advance notice, common law requires 30 days for month to month, 6 months for year to year. 
* notice is to be received no later than last day of period you want to terminate
		– ex.: you want out on Nov. 30, you have till end of Oct. to terminate

3. The Tenancy at Will
* lasts at will only so long as the LL and T desire. Both can terminate at any time. Lease may provide for a 
		given period of notice, such as 30 days, before the lease can be terminated.
* potentially infinite duration
* at common law, could be terminated at any time by any party
	– death could terminate
	– but (under common law) limits on no notice rule – could still harvest crops, etc.
* most states now require a period of notice to terminate
* Five ways tenancy at will may end: (1) death of either party, (2) waste of T, (3) assignment by T, (4)    transfer of title by LL, (5) lease by LL to another party.

a. Garner v. Gerrish  (NY 1984) 		cb421
FACTS: Donovan leased house to Gerrish (D) for $100 month. Lease was to continue until D terminated the agreement at his own choice. D moved in and lived there for over four years when Donovan died. Garner (executor – P) served D with notice to leave. D refused, and P initiated an eviction  proceeding on claim that the lease created a tenancy at will. D claimed that lease was a tenancy for life, says he can terminate whenever he wants, b/c of LL intent– written in the language of  lease. 
PRIOR PROCEEDING: Court granted P summary judgment, holding that since lease term was indefinite, it was month-to-month term. Appellate affirmed, D appealed. Here: Reversed.
QUESTION: Did lease create a determinable life estate or a tenancy at will?
HOLDING: Lease grants a personal right to the named lessee – a life tenancy terminable at the will of the tenant. Takes modern argument and looks at the intent of the lease. Says it is a life tenancy (does this mean for all purposes, i.e. warranty of habitability, or just termination purposes). Ct. trying to fit this into one of the categories of tenancies. Restatement: allows tenancy at will w/ termination rights by only one party; Common law: if tenancy at will of one party, tenancy at will of the other. 

4. The Tenancy at Sufferance: Holdovers 
* A tenant who was rightfully in possession but wrongfully remains in possession after the tenancy expires 
	becomes a tenant at sufferance. 
* not a trespasser, but not really a tenant because there w/o LL permission 
* tenancy at sufferance lasts until landlord either evicts the tenant or elects to hold T to another term 
* States apply varying rules as to the terms of the tenancy if the LL elects to hold tenant to another term
* there was a violation of a fixed term  * not really tenancy  * was tenant, stayed after tenancy terminated
* mostly “holdover tenants”: often come from miscommunication/misunderstanding (or people ignoring what others said)
	
a. Crechale & Polles, Inc. v. Smith  cb425
FACTS: Tenant with 5-year fixed term lease stayed on for two months after its expiration, despite lack of LL’s agreement (although two sides disputed that). LL first said tenant had to leave, then accepted check for first month’s rent after expiration. After rejecting check for the next month that was accompanied by a note from tenant saying it was for the final month, LL tried to hold tenant to a new tenancy of another 5 years.
QUESTION: Did Smith’s holdover on a term for years create a year long lease?
HOLDING: No. If LL treats a holdover tenant as a trespasser, he cannot later hold the tenant liable for a new lease. By telling tenant to leave, LL had opted to evict, even though he had not enforced this decision. Therefore, LL could not go back and hold the tenant to a new tenancy because that would have been trying to change its previous decision. By accepting rent for first month after expiration of initial lease, LL then created an entirely new lease, but a month-to-month one: “We are of the opinion that once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-to-month basis, but fails to pursue his remedy of ejecting the tenant, and accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-to-month basis.”

5. The Lease 				cb431-34
* lease or something else (ex.: license)?
	– fewer rights as licensee	– licenses are revocable, can be ended at any time
	– look at (1) intent, (2) breadth of control over premises, (3) kind of rent agreement held, (4) possibility that it can be passed on, (5) assignability
	– examples on p. 431:
		– billboard? doesn’t look possessory
		– cosmetic booth in a mall? more possess. than billboard, but not much control, no assignability
		– farm where farmer req’d to grow certain crops? depends on spec. facts/how specified
		– room in inn? limit on # of people, control over room/space, maid service, entry by innkeeper?
		– au pair? work in exchange for room, relationship based on space or employment?
		– dormitory arrangements not leases – licenses b/c revocable, lots of restrictions
* Terminology: landlord is “lessor,” tenant is “lessee”
* Not all things that call themselves “leases” are: could be licenses (would be covered in Easements, below) or life estates (estate in land that endures for life of licensee) 
* It matters whether really a “lease” b/c certain obligations b/w ll & t  arise out of the law beyond text lease.
* Leases are both “conveyances”—conveying a property right to the tenant—and “contracts,” b/c contain promises (or “covenants”) subject to and interpreted under contract law. Common law - leases convey land/property to the tenant entirely for the period of the lease w/ ll  having right of reversion. One covenant always included is tenant’s promise to rent of certain amount periodically. Leases also may contain express covenants by tenant or by landlord to make repairs. 
* Courts have been tending to stress the contract aspect of leases more and more. Whether contract law is applied matters, e.g., in interpreting rights of recission—if a landlord fails to repair something, is that a material breach lifting tenant’s obligation to continue paying rent?
* Statute of Frauds: nearly all states require that leases > 1 year be in writing. 
* Form leases and bargaining power: Some courts police lease terms on grounds of substantive unconscionability due to inequality in bargaining power. 

B. Housing Discrimination
Discrimination laws did not suddenly appear in 1960s – racial zoning ecisted throughout country – couldn’t exercise freedom to sell to anyone – privately held racially restrictive covenants & deeds
**Public laws and private restrictions required you to be discriminatory

Now, can be totally discriminatory as long as you don’t violate protected categories – doesn’t go to class or status.

Racial zoning: 	– if residents of area/block were of majority one race, couldn’t be sold to another
				– long effort of civil rights activists/lawyers to change this: 
					case that struck these down in 1917 –  Buchanan v. Wiley
				– struck down on basis of freedom of contract theory (econ. freedom as Const. rt.)
				– in same period, made clear that racially restrict. covenants could be upheld b/c b/w private parties

1928: study found that ½ of subdivisions studied had racial covenants
	– viewed as private agreements, but gov’t played an important role in it.

starting in 1930s, to encourage homebuying, gov’t agencies set up:
	– Homeowner’s Assoc., which offered insurance to banks.
		– set up a rating system, which gave “minority” neighborhoods the lowest rating so banks wouldn’t lend
	– FHA req’d that deeds have racial covenants
		– only 2% of FHA loans made available to minorities	
1948 – ½ of Chicago; 56% of NYC suburbs subdivisions covenanted

1926 –1948, NAACP brought hundreds of cases, lost most, until:
	– Shelley v. Kraemer (1948): ct.’s role in enforcing covenant was state action, therefore violated 14th Amend.
1968:	Jones v. Mayer held that Civil Rights Act of 1866 applied to private parties as well as gov’t
		same time – Congress passed Fair Housing Act
1988: discrimination against children, disabilities added and enforcement beefed up

1. 42 U.S.C. §1982 
	§1981 – same right in any state to make and enforce contracts, sue, full and equal benefit of the laws
	§1982 – same right to inherit, purchase, lease, sell, hold, and convey real and personal property
		LIMITED b/c of 2 reasons: 	(1) assumed only against state discrim. (not private parties)
							  		(2) Plessy v. Ferguson – separate but equal doesn’t violate 14th 
										Amendment pursuant to these Codes.	
	Statutes pretty ineffective. When Civil Rights Act passed in 1866, they were re-passed 
		
2. Fair Housing Act §§3601, 3603, 3604
* Applies to discrimination on the basis of race, color, religion, sex, handicap, familial status or national origin
* Discrimination based on wealth is acceptable (and many rental properties do require minimum income levels) 
	even though this has racially discriminatory effects.
* “Mrs. Murphy’s exemption”: Rental Unit in house where 4 or less units if one occupied by LL
* Other exceptions: single family home sold/leased by owner if she owns no more than 3 homes 

Four categories of claims under the Fair Housing Act (get models from Title VII – employment discrim.): 
	(1)  Go to apt., told that it’s already been rented:  “I, myself, was treated wrongly” (disparate treatment)
		– Rule that they don’t rent to people who make < $100,000 –
	(2) LL #1: pure innocent
	(3) LL #2: knows of disparate effect, but that’s not why he has restriction in place
	(4) LL #3: knows of disparate effect, adopts rule for that reason
				(2), (3), (4): disparate impact – facially neutral rule w/ disparate impact, disparate effect
						which of these has violated Act?

Two models: disparate treatment and disparate impact
	* Disparate Treatment
		Individualized case, act of exclusion – b/c you are part of category
		*PFC:	(1) P member of protected class (statute tells you)
				(2) P applied for housing
				(3) otherwise qualified to rent/purchase
				(4) rejected
				(5) oppty. remained available – apt. remained avail. or rented to member not of protected class
		* If you make out PFC, doesn’t mean you win, means burden of justification shifts to D
		* D must then articulate reasons (how much proof D needs is questioned)
			– come forward w/ legitimate, non-discriminating reason for what D did (rented to niece, flooded, etc.)
		* If comes up with reason, burden shifts back to P
		* P must show that reason was pretextual 
			– that action was motivated by protected class  – essentially, P must show intent
		* Burden ultimately on P to show that it was [race, gender, disability, etc.]
		*difficult in employment, not so much in housing b/c of use of testers
			– cts. accept tester experience as proof of discrimination
			– in employment, so many variables; in housing, fewer
		* could also use pattern and practice case – must have some causal connection, not just inference (in 
			disparate impact, can have severity issues – discrim. is so severe, ct. can make inferences)
	* Disparate Impact
		How much state of mind must you prove?  Where do you get evidence of intent? Deals with people who use neutral terms/rules -- -- messy – cts. are very inconsistent and S. Ct. has not addressed this in housing
* must show that neutral rule has a disparate impact 			--  what does that mean?
			(1) straight numerical case			(2) segregative effect

3. Hanson v. Veterans Administration  (TX 1986) 	Supp
FACTS: “pattern case”: P alleging patterns of discrimination.  Appraisals in minority communities are consistently lower than those in other neighborhoods. P veteran attempting to obtain loan based on appraisals. VA will only give insurance of loans for reasonable value of home. If appraisal is lower than selling price, buyer must come up w/cash or seller must come down in price. VA says FHA only applies to renting and selling but not appraisals. P’s claims: (1) intent, at least some: appraisal text reads “adjust down if ethnic content of neighborhood is not homogeneous” – VA insists no one uses race as a factor, expert testified that no one uses this language any more. (2) disparate impact: statistical analysis – battle of the experts – P says 80% were underappraised - 29% in equivalent white neighborhoods. PRIOR PROCEEDING: P’s claims dismissed. Here: affirmed.
QUESTION: Has P proven discriminatory impact & effect sufficient to recover on claim under the FHA?
HOLDING: No. Appraisal has to do with real estate transaction, so FHA does apply.  But P did not establish disparate impact – errors in appraisals were not racially based (If P had shown disparate impact, D would have to come up with some compelling reason to show did not intend to discriminate). Ct. also says that P did not establish disparate effect: ct. believes D’s expert over P’s expert in finding no difference b/t neighborhoods. Not all about state of mind – ct. goes through why P’s numbers are wrong (too small, only one neighborhood compared, failed to consider non-racial variables).

4. Arlington Heights  (7th Cir. 1977) Supp (Helped establish the “discrim. effect” standard.)
FACTS: Disparate impact case (that actions would significantly impact racial minorities who would 
disproportionately be affected by it). Ps sued to compel the village D to rezone the Ps’ property to permit construction of 190 federally subsidized housing units for lower income families. P brought suit claiming racial discrim. in violation of EP clause and two federal “fair housing” statutes. Argued that it would be further segregating area (this housing would alleviate segregation) and a disproportionate # of blacks would have been eligible. By refusing to rezone, would have disparate impact. 
PRIOR PROCEEDING: Tr. ct. dismissed after finding that the Village’s refusal to rezone was motivated by factors unrelated to racial discrim. Ct of App. reversed on grounds that zoning had discriminatory impact & village’s refusal could not be upheld absent a compelling interest. Since Village had not provided CI, it violated EP clause of 14th. D appealed.
QUESTION: Is refusal to rezone illegal under the Fair Housing Act?
HOLDING: Showing of some discriminatory intent required to establish EP violation absent “stark” pattern.  Ct. remanded case to determine whether Village’s conduct violated Title VIII. Title VIII violation can be shown under some circumstances by a showing of discrim. effect without a showing of discrim. intent.  Every action that produces discrim. effect does not violate Title VIII.  Examined four critical factors: (1) how strong P’s showing of discrim. effect is; (2) whether there is some evidence of discrim. intent, but less than const. violation; (3) D’s interest in taking the action complained of; and (4) nature of relief P seeks. P was seeking to build interracial housing rather than trying to compel P to do so. 7th Ct. returned suit to dist. ct. to determine whether any parcel existed in Arlington Heights that was already properly zoned and suitable for low-cost housing. Village had burden of identifying site and if D could not, Ps would be entitled to relief sought.  Ps and Ds then compromised.
	Public D needs less evidence than private D to lose case. Why?
		– More willing to put on public D something that looks like an affirmative duty.
		– business justification v. public duty
		– don’t see LL as responsible for basic economic differences based on race

5. Soules v. U.S. Department of Housing and Development  (2d Cir. 1992)	cb439
FACTS: Soules (P), who has a 12 yr. old child, answered ad.  Downs (D), a real estate agent, claimed failure unit to Soules (P) not  based on P having a child, but b/c of P’s negative and combative attitude when D inquired if she had noisy children.  A public interest group contacted by P sent in two testers both of whom were asked if they had noisy children. Unit was offered to a woman with children, then leased to woman with no children. P filed complaint with HUD.
PRIOR PROCEEDING: ALJ dismissed discrim. claim b/c D had exercised legitimate discretion in renting the unit. Petition for review. Here: petition denied.
QUESTION: Did ALJ properly dismiss the case/has P made out a case for disparate treatment? 
HOLDING: A PFC of housing discrimination can be rebutted if a legitimate reason for a refusal to rent housing can be offered. P showed a PFC - burden shifted to D to prove a legitimate reason for refusal. In rebuttal, D showed that her refusal to rent based on fact that P, in phone conversation and in personal meeting, failed to satisfy her that her child was sufficiently reserved so as to not annoy the other couple in duplex. Not renting due to concern that would be tenant would constitute a nuisance is a legitimate course of action, and the ALJ’s conclusion here is supported by substantial evidence.

6. Bronk v. Ineichen  (7th Cir. 1995)	cb448
FACTS: Ineichen (D) leased a unit to Bronk (P) and Jay (P), both deaf. Lease had “no pets” clause. P brought in a dog. D demanded - get rid of the dog, move out, or pay increased rent & security deposit. P told D dog was a “hearing dog” to help them cope with their disability.  D did not change position - tenants later moved out. Ps then sued in fd. ct., contending violations of FHA, Wisconsin ordinance, and Madison ordinance (various levels/intensity of proof needed). Evidence unclear as to whether or not the dog was a bona fide hearing dog, as it was not certified. FHA requires reasonable accommodations, ordinances require proof that dog is certified and has gone through training. 
PRIOR PROCEEDING: Jury returned verdict in favor of D, and Ps appealed.
QUESTION: Did Ineichen violate the FHA?
HOLDING: Accommodations provided to a disabled person need only be reasonable, not absolute. Whether accommodations are reasonable requires an analysis of the benefit to tenant and burden on LL.  Jury instructions improper because they did not differentiate b/n federal and state claims. Reversed and remanded because issues of fact still exist. LL probably has good defense under ordinances.

C. Possession, Subleases and Assignments
1. Possession
	Delivery of possession: English Rule v. American Rule
	English Rule: LL must put you into actual possession b/c (1) LL has better idea of intentions of holdover; (2) what people think they’re getting; (3) since all info is in LL’s hands, let LL have duty to evict; (4) security deposit: power to kick old tenant out; (5) LL has more experience.
	American Rule: Lease only gives right to legal (not actual) possession b/c (1) LL would lose $ if apt. was empty waiting for new tenants to come in; (2) consistent w/ idea that lease is a conveyance of possessory interest in property; (3) conforms w/ long term goals – after in possession of prop., must kick all trespassers out (whether there when you arrived or later); (4) parties could always argue otherwise – could put it in the lease.
	Restatement: favors English rule. LL has knowledge ahead of time. LL can more efficiently anticipate 
problems, in a better position to see them and do something about them.

a. Hannan v. Dutsh  (VA 1930) 		cb459
FACTS: Hannan (P) signs a lease with Dusch (D). Dusch does nothing to force the current tenants to leave.  Hannan sues on the grounds that Dusch did nothing to get the holdover tenants to leave. There was no express covenant in the lease requiring Dusch to evict the tenants. Dusch says that absent such an express covenant, it was Hannan’s responsibility to see that the premises were open for entry.
PRIOR PROCEEDING: Here: affirmed.
QUESTION: Is L required to oust trespassers and wrongdoers so as to have the property open for entry by the T at the beginning of the term? Even though there wasn’t an express covenant stipulating this, is there an implied covenant by the L to deliver possession?
HOLDING: No. D not liable. LL is obligated only to place a tenant in legal possession of the rented real property. Where a new tenant fails to obtain possession of rented premises solely b/c a former tenant wrongfully holds over, T’s remedy is against the former T and not against LL. P should have brought action for unlawful entry or unlawful detainer against the former T, rather than seeking relief from D.

2. Subleases and Assignments
	Generally, T can transfer interest unless specified in lease
		compare w/ restraints on alienation in fee simple – cts. more tolerant of restraints on leaseholds
Assignment:	* tenant conveys all of her interest in property
			* does not retain any future interest
Traditionally: under assignment, assignee was directly responsible to the LL. Orig. T not off  the hook, but all obligations that run with the land pass to the assignee.
privity of estate: assignee in possession of estate, thus liable to LL under privity of estate
privity of contract: assignee never entered into contract w/ LL, thus not liable under privity of contract
LL and orig. T: no longer have privity of estate, but still have privity of contract
Rule of Assignments:  once LL permits one assignment, LL has permitted all future assignments unless specifically stated by LL. Dumpor’s Case (Does not apply to subleases). Restatement does not accept the rule b/c doesn’t express the intent of the parties.
Novation: if LL agrees, release of contract w/ T1 and re-contracts w/ T2. T1 is no longer in privity w/ LL.
Sublease: * tenant gives up less than entire interest
Traditionally, orig. T has a reversionary interest. LL and orig. T in privity of estate and privity of contract
T1 not in privity of estate b/c interest doesn’t do back to LL, goes to T (sublessor)
T1 is in privity of estate w/ T
Exception: if assumption of obligations b/w  T and T1, third party beneficiary in theory, T1 liable to LL
			assumption: T1 assumes T’s obligations under lease, and LL can sue as third party beneficiary
Landlord Conveyance of Property: If LL1  sells building to LL2, Ts still have good lease against LL2. LL1 cans 
only convey what s/he has – ownership subject to a lease. T can sue LL2 under privity of estate, but absent statute or provision in original lease, there is no privity of contract.
Subrogation Theory: If LL sues T1 based on privity of contract, T can sue T1 for compensation.

a. Ernst v. Conditt (TN 1964)		 cb465
FACTS: LL, Ernst, leased land to Rogers for 53 wks. Rogers went into possession and built a race track on the premises, other improvements. Lease does not allow any assigns or subleases w/o LL permission. Renegotiated lease to let Conditt sublease w/ Ernst’s permission, so Conditt could run Roger’s business. Conditt stopped paying rent. Ernst sues Conditt (sublessee) for back rent.
PRIOR PROCEEDING: Chancellor found the instrument to be an assignment; judgment against Ds for $6,900. Ds appealed. Here: Affirmed.
QUESTION: Did the renegotiated lease grant Conditt an assignment or a sublease?
HOLDING: An assignment arises when a lessee transfers his entire interest under a lease. Ernest can sue Conditt directly because there is privity of estate. Ct. looks at intent of two parties -  it was an assignment b/c it was a transfer of the entire interest in the property – Rogers had no reverter rights.  When D’s lease ends, reverts back to P, so privity of estate and LL could recover. The fact that Rogers expressly agreed to remain liable for the performance of the lease does not create a reversion nor rt. to reenter. He merely agreed to become personally liable for the rent and the expense of removal upon the default of D. Two approaches to decide whether it is a sublease: (1) Intent of the parties and (2)What’s the basis of the claim against Conditt? Conditt entered into a contract assuming the oblig. of the lease.
	Baumann:  Regardless of exact words, D signed an agreement where he “assumed everything in the original lease” Ernst can sue Conditt as a 3rd party beneficiary to the contract b/t LL & Rogers.

b. Kendall v. Ernst Pestana, Inc.  (CA 1985)		cb473
FACTS: Ernest Pestana, Inc. (D) was the lessor of hanger space from the City of San Jose. Kendall (P) was one of D’s lessees who bought a business which included a 25 yr. sublease.  The lease provided that written consent of lessor was required b4 lessee could assign his interest, and that failure to obtain that consent rendered lease voidable at option of the lessor. P approached D, seeking permission to sublet. D denied P for no reason. P sued for injunctive relief and damages.  D demurred to the complaint.
PRIOR PROCEEDING: Lower court sustained the demurrer, and the appellate court affirmed. P appealed.
QUESTION: Was Pestana’s refusal to consent to the assignment an unlawful restraint on the freedom of alienation? Can Pestana refuse to consent to assignments? 
HOLDING: Yes. In the absence of a provision in a lease contract to assign or sublet, consent to do so must not be unreasonably withheld. Ct. follows Minority/Restatement rule that lessor can’t reject right to transfer land, except on reasonable commercial grounds (Majority view is that lessor can arbitrarily reject to consent). Based on two theories: (1) Policy argument against restraints on alienability pertains to leases as conveyances. Majority rule says T shouldn’t be allowed to force a new T on LL. But Restatement (2d) adopted minority rule, b/c lessor’s interest in maintaining character of space is protected by ability to object to consent on reas. commercial grounds; and (2) Lease as a Contract – includes a duty to act in good faith and limits lease as conveyance theory. If LL concerned about increased value of prop., can build rent increases into lease. Demonstrates a trend to treat leases like contracts. 
	Baumann: T could have negotiated a better deal when lease ended, but clause in lease which said LL has reasonable rights to consent – T thought LL would be reasonable. LL really wanted to gain money from not allowing assignee.

c. American Book Company v. Yeshiva University Development Foundation, Inc.  (NY 1969)   Supp.
FACTS: Amer. Book Comp. (P), office tenant brought action to compel successor LL to grant consent to sublease to planned parenthood org. Clause in lease that consent will not be unreas. withheld. 
QUESTION: Can Yeshiva, as a successor LL, work around unreas. clause in lease?
HOLDING: LL must use objective std. of commercial responsibility to reject consent to subleases and assignments. Cannot use doctrinal differences to deny subleases/assignments. Subjective criteria of LL run counter to public policy (b/c most liberal orgs. would be out on the street if LLs could use subjective criteria). Obj. std. –  Judge subtenant according to: (1) financial responsibility; (2) “identity” or “business character” of subtenant – suitability for particular building; (3) legality of proposed use; (4) nature of the occupancy – i.e. office, factory, clinic, etc. Consent was unreas. withheld.

Many Common Law Rules still apply to Commercial Leases;  moving away from CL in Residential Leases.
	What is commercially reasonable?
		(1) financial ability of sublessee/assignee
		(2) Will the sublessee/assignee succeed?
		(3) Image of property for commercial interest only
		(4) How will it effect economics of other businesses?
		(5) If rent is based on the profits?
	Should this reasonableness Standard apply to Residential leases? No wins.
		No Reasons:
			(1) Equities are different b/c a shorter term
			(2) More of a personal relationship
			(3) More of a burden for LL to switch to new s/a
			(4) LL wants stability
		Yes reasons:
			(1) Tenant has less bargaining power
			(2) May need sublease
	(Mass. did not apply Kendall to res. or comm. subleases – LL may arb. refuse to consent to subletting.)

D. Tenants in Default
One of the big changes: change in independence of covenants of the lease.
Previously, T agreed to pay rent, LL agreed to provide heat. These were separate, independent covenants. 
	If LL didn’t provide heat, T still had to pay rent. 
	If T didn’t pay rent, LL still had to provide heat.
	At common law, LL/T must sue as a remedy – can’t use any form of self-help.

1. The Tenant in Possession
a. Berg v. Wiley   (MN 1978)		cb 484
FACTS: Wiley (D) leased restaurant space to Berg (P). Lease provides LL right to re-enter if T breaches lease. D claims P breached by remodeling w/out permission and health code violations. D changed locks when P was still in possession but had left for the day. D claim that P had abandoned the property.  D claims it was urgent to lock out to stop P from further damaging the premises. 
PRIOR PROCEEDING: Tr.ct. awarded P money for lost profits & chattels, holding P neither abandoned nor surrendered the premises. D appealed.
QUESTION: Is there sufficient evidence that P did not abandon property? Did the trial ct. err in finding D’s re-entry forcible/wrongful? 
HOLDING: P did not abandon property, and D was forcible and therefore wrongful in his re-entry. The only means to dispossess tenant who has not voluntarily abandoned/surrendered property if by resort to judicial process. A LL may not use self-help to retake leased premises from a tenant who has not abandoned or voluntarily surrendered them. Self-help was not peaceable b/c P wasn’t present to defend interests & it would not have been peaceable if P were present. Can’t exercise self-help b/c too great a harm. Two remedies for eviction based on breach or lease when T holds possession: (1) traditional American std. of peaceable self-help (i.e. lock out); or (2) summary proceedings. Wiley should use summary proceedings. Cts. look down on self-help remedies when summary proceedings are available & will hold LL liable for damages incurred as a result. Fear of LL abuse.
	Bauman: Prohibition against self-help wasn’t majority view when written, might be now.

b. Summary Proceedings  cb 492
Summary proceedings are meant to be a quick and easy means by which to recover possession after termination of a tenancy. Often expensive and time-consuming, even if uncontested. 

c. Serreze v. YWCA   (MA 1991)	Supp57
FACTS: Three women residing in transitional living program in a YWCA. The women expected to work or attend school & participate in activities/program. The three women had dispute w/ program manager, stopped participating. They were issued 30-day notices, had meetings w/ director, given warnings. During a meeting, locks on Ps’ apt. doors were changed. Women alleged violations of a state statute and the state Civil Rights Act claiming that they were unlawfully evicted without judicial process.
PRIOR PROCEEDING: Trial ct. granter summary judgment for D. Ps appealed. Affirmed in part.
QUESTION: Are Ps are statutorily protected from self-help eviction? Was summary judgment on the Civil Rights Act claim properly granted?
HOLDING: (1) Yes, they are protected. LL’s self-help was breach of quiet enjoyment given in MA statute that says LL can’t use self-help, interfere w/ quiet enjoyment of premises. Though they are not technically “tenants,” the statute says “occupant,” which they are. Also look at policy: these women need more help than others, and evicting them will go against aims of program/may perpetuate cycle of shelters/dislocation. (2) Yes, summary judgment on civil rts. claim was correctly entered for LL b/c there was no evidence of non-peaceable means (threats, intimidation, coercion) in the self-help eviction. Case remanded to assess reas. fees for Ps, add an award for them. 

2. The Tenant Who Has Abandoned Possession
a. Sommer v. Kridel   (NJ 1977)		cb494
FACTS: D canceled lease in writing before occupancy b/c wedding was canceled.  P did not respond to letter and did not rent to 3rd party who showed interest. P later sued D to recover the full amount of 2 yr. lease. In Riverview: D entered into a 2yr. lease with P. D took possession and occupied the premises for 1 yr. D then vacated the premises. P sued for rent due on the remaining year.
PRIOR PROCEEDING: 2 cases. App. Divisions held that LLs could recover rent due. Reversed.
QUESTION: Is LL seeking damages from defaulting tenant under a duty to mitigate the damages by reletting the apartment?
HOLDING: Yes. New rule: LL has a duty to mitigate damages and make a reasonable effort to re-let the premises. LL has duty to prove mitigation of damages b/c LL in position to know what had happened w/ lease. If LL cannot prove, LL loses. If LL mitigates, may keep case out of court. Can deduct cost of mitigation & if rents for less, can get remainder from defaulting tenant.

b. Landlord’s Remedies and Security Devices
	LL’s rights: 
		* receive rent  * have premises intact (tenant cannot commit waste) * rt. to reversion - end of  lease
	LL’s remedies:
		* failure to pay rent, no abandonment
			– LL can sue for back rent, regain possession  – evict tenant  – strike a deal  – seek back rent
			– sue for anticipatory breach – damages for rest of term (diff. b/w what he can get now for 					damages and what lease due) (can be $0) (damages for rest of term)
		* tenant stops paying rent and leaves
			– can accept surrender of lease and move on – sue for back rent, damages, but tenant no 					longer legally obligated to pay
			– rent on a tenant’s account: saying LL accepting possession of premises, but renting it again 				– tenant not off the hook - still has priv. of contract, better in bad econ., diff. type of lease.
Frequent source of litigation – whether LL accepts surrender. Behooves LL to say exactly what 
he’s doing: “I am re-letting the premises, but on your account.”  T’s args: improvements look like LL reasserted self.
		* Basic remedies
			– rent it again, sue for back rent. Problem: must wait for lease to end to sue for back rent. 
			– Some LLs use “rent acceleration”: if one month breach, then all the rent is due.
			– T’s args.: unfair, burdensome, accelerating rent is penalty/punitive
			– cts. who haven’t accepted it say its unfair, punitive				
			– liquidated damages: if you can’t figure out damages, say damages $___ a day for every day 					of breach (used in prop./construction when not finished yet). Ct. have invalidated liq. 				damages b/c too punitive, can’t accept if LL can actually figure out damages. 

E. Condition of the Premises: Landlord’s Duties; Tenant’s Rights and Remedies 
			Evolution:
	1. Common Law: No duty on LL to convey any property of minimal quality.  Conveyed property as is.  Only 
		obligation was quiet enjoyment.
	2. Exceptions to Common Law no duty rule
		(a) Short term furnished apt. – LL has duty to repair, b/c not an expectation of party who rents it. Common 
Law says that T has time to inspect premises & if signs lease, then LL not responsible. In short term furnished lease, T has no time to inspect.
		(b) Latent defects – LL has duty to tell of latent defects but not to repair them. 
		(c) Defects in common areas – LL’s responsibility to repair	
		(d) If LL covenanted to do something or volunteered to repair, LL can’t do them negligently b/c T relied on 
			the promise made
		(e) LL has responsibility for areas open to the public – injuries to third parties
		(f) Fraudulent misrepresentation
		(g) Immoral conduct of other tenants – LL in best position to act
	3. 1960’s: Cts. started to read more into lease – convey and maintain habitable premises.  T’s remedies: T could 
		sue for damages if LL breached this, but T still had to pay rent.
	4. Beginning with the 1960’s: abandonment of this notion that rent was still independent from LL’s breach.  T 
		could withhold rent. Obligations to pay rent based on LL upholding covenants.

1. Quiet Enjoyment and Constructive Eviction
	Expressed and implied terms in LL/T relationship
	
Traditional view: “caveat lessee”
		tenant takes premises as is, LL has no duty to repair, etc.
		made sense in agrarian land – farmers had skills to care for cottages, land.

	Implied covenant of quiet enjoyment: 
		Idea that tenants’ possession could not be interfered with by LL
		Possessory duty on part of LL: duty to deliver possession and not to evict tenant.
			– possess. duty breached, T could not pay rent
		
	Expanded w/ notion of constructive eviction:
		LL cannot evict tenant. If LL gives possession, can not move in, etc.
		Constructive eviction: LL substantially interferes with quiet enjoyment of premises
		Possession became a dependant covenant with rent.
	
	Early years: tenant had to physically move out to assert constructive eviction.
	Now: If T’s quiet enjoyment is disturbed by LL, T can treat lease as terminated & vacate premises – T is no 
		longer liable for rent.
	Necessary Elements:
		(a) Substantial/severe interference – failure of LL to do something – breaches duty in lease
		(b) Notice to LL of defect with reasonable time to fix it.
		(c) Tenant must vacate in some jurisdictions (Restatement says not necessary)

	only can assert constructive eviction if cts. can find duty – 
		violation of expressed provision might be so serious to mean constructive eviction
			OR
		cts. even imply something into lease – most cts. imply covenant of quiet enjoyment

a. Reste Realty Corp. v. Cooper  (NJ 1969)		cb508
FACTS: LL rented basement commercial space to Cooper for 5 yr Term. Lessee knew at lease signing of faulty driveway construction causing basement to flood. Each time flooded, resident manager fixed it. Orig manager died & new one did not fix flooding prob. Cooper vacated premises.  Reste claimed - not a latent defect b/c D knew & took “as is.” P sued for rent. D defense - constructive eviction. 
PRIOR PROCEEDING: Tr. ct. found for D, App. ct. reversed. Here: Reversed – trial ct. judg. reinstated.
QUESTION: Was this a breach of quiet enjoyment and did it constitute constructive eviction for the T? 
HOLDING: Prior LL said he would repair, express promise to remedy the situation. P breached implied covenant of quiet enjoyment, driveway is latent defect. If leased premises are made substantially unsuitable for the purposes for which they are leased, or the beneficial enjoyment is seriously interfered with, that constitutes a breach of the covenant of quiet enjoyment and will allow a tenant to claim a constructive eviction. Condition of the premises deprived D of use and enjoyment. P says she didn’t move out soon enough, but ct. says only need to be in reas. amount of time. Ct. substantially expanding covenant of quiet enjoyment.

b. The Illegal Lease
	Lease was an illegal contract made in violation of statutory provisions and therefore unenforceable.
		does not apply if 	– code violations developed AFTER making of lease
						– minor violations 	– LL didn’t have actual/constructive notice			
2. The Implied Warranty of Habitability
	* Before 1970s, most cts. held that LL had no duty to repair – needed to bargain for it. 
		– Exceptions (common law) for latent defects. 
	* Even if you had bargained for it, covenants of leases independent (no heat, still must pay rent)
		if you didn’t pay rent, LL still provided water – independent.
	* Tenants’ remedies: sue for damages; attempt to use constructive eviction (but had to move out)
	* Almost every state has abolished the no duty rule, implemented the implied warranty of habitability
	* Can raise breach of the implied warranty of habitability as a defense to non-payments of rent
	* Constructive eviction – can use in commercial, use in both
	* Implied warranty of habitability mostly applies only in residential spaces

Residential only (recognized in most states)
	(1) Cts. will imply in residential leases that the premises be delivered to the T in fit & habitable shape
	(2) Tenant must show: notice of violation and reasonable time to repair.
	(3) Varies state to state: gen. T can w/hold rent (pay in escrow to 3rdparty) or make repairs & deduct from rent.
	(4) Few cts. have extended this to commercial leases.
	(5) As public policy, T cannot waive their right to warranty of habitability.
	(6) Applies to latent and blatant defects.
	(7) Breach of warranty if defects affect T’s safety or health.

Note:
(1) There is no “good excuse” for LL to breach this implied warranty of habitability. Does not matter if breach due 
	to strikes, natural disaster, etc.  no defense for unsanitary conditions.
(2) Ct. will not uphold exculpatory clauses, based on unequal bargaining power, unconscionable.

a. Hilder v. St. Peter (VT 1984) 	cb519
FACTS: Hilder (P) rented an apartment from St. Peter (D) that had problems: sewage leaks, broken locks, windows, and toilets, and falling plaster.  Although P notified D of the problems, D did nothing to remedy situation. P occupied apartment and paid rent for 14 months, sued D to recover the money paid.  
PRIOR PROCEEDING: The court awarded P damages, and D appealed.
QUESTION: Does an implied warranty of habitability exist in residential leases?
HOLDING: Yes. An implied warranty of habitability exists in residential leases. Abandonment is not necessary in order to claim damages under an implied warranty of habitability in residential leases. The old view of leases was that the lessee took the property as he found it. This view was proper in an agrarian society, but in a modern urban setting is improper. The modern tenant bargains for viable habitation, and if he receives less, he is not getting that for which he contracts in a lease. Has to be a substantial code violation. Ct. leaves door open for whether there is a breach of the covenant if there is no building code violation. A T who enters into a lease agreement  w/ knowledge of any defect in essential facilities cannot be said to have assumed the risk. To invoke warr. of hab., T must show: notice to LL and reas. time given to fix. B/c contractual relationship, standard contract remedies of rescission, reformation, and damages are available to T when suing for breach of the imp. warr. of hab.

Measure of Damages (Vermont): value of dwelling as warranted vs. value in defective condition. 
	(1) If T pays $300 in defective condition > that is the value. Ct says agreed value is a warranted value.
	(2) Even if crummy apt. rented for a low rent, still rented w/ implied warranty of habitability based on the fair 
		market value of the apartment.
	(3) Policy: protects T’s rights b/c LL must pay on the basis of fair market value. Protects low income families.  
		Uninhabitable apts. effect other people externally.
	(4) Consequential Damages:  Cts. possibly can grant punitive damages.  
	(5) T can pay rent in escrow while waiting for litigation.
	(6) Statutes have different requirements:
		(a) some permit T to rescind contracts
		(b) permits T to withhold rent
		(c) permits T rent abatement
		(d) injunctive relief to force LL to do repairs	
		(e) criminal penalties for code violations
Second way of computing damages
	Cts will take percentage and reduce the rent. Not as generous as Vermont’s. Problem is that LL can increase 
		rent a certain percentage knowing that later courts will reduce that percentage.

SUMMARY: 
	 advantages/disadvantages of implied warranty of habitability: 
creates duty of LL to maintain certain level;  measure of damages generous; applies from onset of tenancy on
	 risks to tenant:
		cts might say it is not a breach; have to pay $ in eschrow; LL might raise rent to tenant
	 hardly ever asserted: 
most juris., not made a big impact (unless represented by counsel, tenants usu. don’t 
		assert a defense)
		(economics of it: CB pp. 538, 540-541)

VI. Servitudes: Easements and Covenants

Servitudes: controls on property – putting additional controls on land that are agreed upon by parties for certain use; 
	one parcel of land burdened to benefit another parcel of land

Three Main Kinds: 
	1. Easements (v. licenses)
	2. Equitable servitudes
	3. Real covenants

Purposes:
	– affirmative servitude that allows someone to affirmatively use someone else’s land (except for neg.) 
	– restrict how neighbor uses that land – limits what neighbor can do with prop. 
	– impose affirmative obligations on neighbor – neighbor shall maintain fence, shall prune trees, etc.

Results: 
	increase value of land (residential only)
	preserve land for conservation (land trusts)
	develop social milieu (gated communities, affordable housing)

different functions, but often overlap
most commonly in written grants/deeds, but can be implied
resemble contracts, but different b/c if appropriate requirements met, they run with the land. 2 neighbors can agree, 
	binds future owners to the agreement

Issues that arise: 
	1. creation: how? formally, informally, in writing, implied
	2. when in writing, how do you ascertain meaning? how do you ascertain intent?
	3. compulsory reading of it – racially restrictive covenants illegal. what absolute restrictions are there?
	4. when do they run with the land? what do you need so they pass on?
	5. termination – when do they end?

A. An Introduction to Deeds and Titles (cb600-606)
Real property conveyed by DEEDS
	– enter into contract to buy/sell property
	– actual conveyance done by deed
	– contains warranties/promises by seller – determined by kind of deed (warranty, quitclaim) 
	– grantor, grantee, description, other promises/covenants (servitudes)
To find out restrictions on land, go to registry of deeds

(1) Three types of deeds currently in general use in US. Kind depends on local custom.
a. general warranty deed: warrants title against all defects in title, whether they arose before or after the grantor took title. (see p. 601 for example)
b. special warranty deed: warrants only against grantor’s own acts but not the acts of others. If the defect is a mortgage on the land executed by the grantor’s predecessors in ownership, the grantor is not liable.
c. quitclaim deed: no warranties of any kind.  Merely conveys whatever title the grantor has, if any, and if the grantee of a quitclaim deed takes nothing by the deed, the grantee cannot sue the grantor.
(2) Customary to state in deed that some consideration was paid by the grantee, in order to raise a presumption that the grantee is a bona fide purchaser entitled to the protection of the recording acts against prior unrecorded instruments.
(3) A deed must contain a description of the parcel of land conveyed that locates the parcel by describing its boundaries. 
(4) Deed must be signed. Statute of Frauds 1677.
(5) A forged deed is void.  The grantor whose signature is forged to a deed prevails over all persons, including subsequent bona fide purchasers from the grantee who do not know the deed is forged.
(6) A present covenant (ex. covenant of seisin, covenant of right to convey and covenant against encumbrances) is broken, if ever, at the time the deed is delivered.
(7) A future covenant (ex. covenant of general warranty, covenant of quiet enjoyment and covenant of further assurances) is not breached until the grantee or his successor is evicted from the property, buys up the paramount claim, or is otherwise damaged.
(8) Statute of limitations begins to run on a breach of a present covenant at the date of delivery of the deed.  It begins to run on a future covenant at the time of eviction, or when the covenant is broken in the future.

B. Easements
1. Summary of Easements:
	*Grant of property interest created by deed or implication
	*Run with the land
	*Unlimited time
	*Irrevocable except for certain circumstances
	*Look to intent of parties
    	*Not a possessory interest
	*Generally private, except for few circumstances that allow public to gain use. reasons include  (often about access to beaches): 1. prescription (exclusivity not there); 2. implied dedication – intended dedication of public use; 3. custom; 4. public trust doctrine 
    		
a. Affirmative easements - gives person right to go onto another’s land (servient tenement)
b. Negative easements - owner of easement can prevent servient tenement from doing some act (ex. 
building factory).  Cts. don’t like to uphold b/c want productive use of land.
c. Appurtenant (2 tracks of land) - easement attached (burdens) a servient estate and gives benefit to the dominant estate (ex. easement over servient estate (property) to reach landlocked dominant estate).
d. Easement in gross - easements which are personal to their owner; independent of particular parcel of 
land.  The servient estate is burdened but there is no benefited dominant estate (ex. telephone wires/utility companies’ easements).

2. Types of Easements
a. Express:  written, signed by owner of servient tenement
b. Implied: Requirements for implied:
        	1. continuous
        	2. open and obvious notice
       		3. reasonably necessary

Quasi-easement:  When a landlord uses a portion of his estate to benefit the remainder of the estate, even though there is no specific grant of the easement to himself.  It is implied b/c was used by previous owner.  Easement need only be reas. necessary, not as strict as easement by necessity. 
Factors of QE:  1. Reasonable necessity , 2. use is apparent/gives owner inquiry notice (or notice of some kind), 3. one common parcel,  4. continual/pre-existing use
c. Implication by necessity:  if only means of ingress & egress is across another’s land.  This easement ends when the necessity ends, unless pre-existing use (i.e. VanSandt v. Royster). (Impl. by necessity rejected by Othen v. Rosier/TX juris.—need absol. necessity).

Must show:
1. Necessity existed at time of severance
2. Unity between dominant and servient estates
3. Roadway is not mere convenience
4. Look to intent of the parties
Justifications:
1. public policy: against public policy to have landlocked parcel
2. presumed intent: no one would have intended to have landlocked parcel
d. Easement by estoppel: in some states, licenses give rise to easement by estoppel (Holbrook v. Taylor) 
e. Prescriptive easement: like adverse possession, but not exactly.  The process of acquiring an affirmative easement by continuous use, rather than asking the owner of the property. American cts. will not imply negative easements based on prescription. 
Four requirements:
	1. use must be adverse to true owner
	2. continuous and uninterrupted for statutory period (seasonal ok)
	3. visible and notorious or with owner’s knowledge
	4. Exclusivity (i.e. not using with public, this is different than adverse possession
Justification: 
	1. maintain status quo – encourage use.
	2. alleviate problem of digging up old records to justify easement of necessity
	3. settle things – as the status quo is
3. Termination of Easements
a. Merger of the dominant and servient owners
b. A valid release complying w/Statute of Frauds
c. Abandonment w/a physical act.  Mere non-use not OK
d. Estoppel - (equity)
4. Licenses 
a. Permission given by occupant of land allowing a licensee to do some act that would otherwise be trespass, ex. can come on my land and pick mushrooms
b. Revocable.  two exceptions: 1. attached to an interest or 2. rules of estoppel (to uphold fairness)
c. Gives a possessory right
d. Relates mostly to specific location
e. For a limited time
f. Usually for a shared right, ex. park
g. Don’t have to be written
5. Lease v. Easement
a. Duration - lease is limited, easement not
b. Types of use
c. Specificity of location - easements are usually general - right to walk across land, leases are usually fixed to a specific area
d. Leases have rent, easement usually no periodic payment
e. Statute of courts - necessary for easements, not for S-T leases
f.  Recording - easements must be recorded, leases do not
g. A lease reverts back to the original owner
6. Cases
a. Willard v. First Church of Christ, Scientist   (CA 1972)	cb783 		(appurtenant easement)
FACTS: The previous owner of a lot (McGuigan), who had allowed a neighboring church to use the lot for parking during church services, conveyed the lot to a new owner (Petersen), along with a clause for the easement for the church.  Petersen then sold the lots to Willard, but the easement clause didn’t make it into the new deed.  Willard moves to quiet the title and cancel the easement.  
PRIOR PROCEEDING: Dist. ct. entered judgment for Ps, quieting their title, b/c under common law grantor can’t reserve an interest for a third party. Church appealed.
QUESTION: May a grantor, in deeding real property to one person, effectively reserve an interest in the property to another?
HOLDING: In this case, such a reservation vests the interest in the third party. Under common law, an 
easement cannot be reserved in favor of a third party. Ct. REJECTS this rule b/c it is left from feudal times, doesn’t make sense in today’s society, and can frustrate a grantor’s intent. Ct. looks to follow the grantor’s intent, partly as a practical reason b/c grantor probably discounted the price of the land b/c of the easement. Uses a balancing test: injustice in granting v. injustice in not granting. For Church. – How could McGuigan have avoided this? Conveyed a fee simple determinable to the church; conveyed 
easement directly to the church; conveyed deed to buyer, he conveys easement to church; use 2 pieces of paper.	

b. Holbrook v. Taylor  (KY 1976)		cb790
FACTS: In 1964 Taylor (P) bought land adjacent to Holbrook (D). P built a house on his land.  D gave P 
permission to use a roadway on D’s land during construction, and later extended this permission after P’s house was built. P made some slight improvements to the roadway throughout this time. After a dispute, D refused P permission to use the roadway. P sued D to establish right to use of roadway by prescription and estoppel. D said P had a mere license, not an easement, which was revocable. 
PRIOR PROCEEDING: Trial ct. ruled that use of roadway by prescription had not been established, but that it had been established by estoppel. D appealed.
QUESTION: Have Ps gained a right to use the roadway by prescription or estoppel?
HOLDING: The right to the use of a roadway over the land of another can be established by estoppel. P 
relied on the ability to use the road, evidenced by the fact that he made a significant investment (slight roadways improvements and house itself). License to use the roadway may not be revoked, as Ps established easement by estoppel. Lower ct. was correct in saying no easement by prescription – use of land was not adverse (they had permission), continuous, or uninterrupted. But, since D stood around, let P use $, estopped from revoking his license to use the roadway.

	Shepard v. Purvine   (OR 1952)		cb794
	Consistent w/ Holbrook, as applied to oral contracts. Oral license b/w close friends promptly acted upon is just as valid, binding, and irrevocable as a deeded right of way.  (considers intent of parties at time of agreement?)

	Henry v. Dalton  (RI 1959)		 cb794
Oral arguments easily misunderstood. Could encumber the land for a long time. Ct. reluctant to accept 
implied easements – prefer that parties put it in writing. Refuse to recognize easement by estoppel or prescriptive easement because it makes deeds less secure.

Restatement (p.795): Servitude may be created by estoppel. “Normally the change in position that 
triggers application of the rule stated in this subsection is an investment in improvements either to the
servient estate or to other land of the investor.”

c. Van Sandt v. Royster  (KS 1938)	cb795         (quasi-easement by implication, appurtenant)
FACTS: Common owner partitioned and sold land after building a sewer system across all lots. Van Sandt  (P) purchased lots w/out easement of sewer written into deed.  He finds his basement flooded due to sewer line breaking & seeks an injunction of continued use of sewer.  Royster and Gray (Ds) argue for the easement of the sewer line on 2 theories: (1) Prescription and (2) Quasi-easement. P argues that evidence fails to show easement on land; he took premises burden-free as bona fide customer.
PRIOR PROCEEDING: Lower ct. in favor of Ds. P appeals.
QUESTION: Can Ds use underground, non-visible drain as an easement?
HOLDING: Cts. may imply an easement of the sewer by a quasi-easement by necessity. Ct. only addresses easement by implication – easement must have existed before land was partitioned and was the intent of the common owner and P had NOTICE. Here, P did not purchase w/o notice – should have known about sewer line b/c sewer was apparent. Cts generally will imply a quasi-easement in favor of the grantee if there is a reasonable necessity (this ct. actually favors the grantor; cts. more hesitant to do favor grantor b/c grantor could have written it into the deed to begin with.) 
Factors for a quasi-easement: (1) reasonable necessity (more stringent if asking for benefit of grantor), (2) inquiry notice (did or should the servient estate have known? was it apparent?), (3) it was a common parcel of land and (4) continuous use. Affirmed for Ds – allowed to use easement by necessity.

d. Implied Easements
Easements implied in two basic situations: 
		(1) easement implied from a prior existing use: an apparent and continuous (or permanent) use of a portion of the tract existing when the tract is divided (Van Sandt v. Royster)  
		(2) easement by necessity: claimed easement is necessary to the enjoyment of the claimant’s land and that the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel (involved in Othen v. Rosier (no easement by necessity)
		
e. Othen v. Rosier   (TX 1950)			cb 802
FACTS: Othen (P) and Rosier (D) own tracts of land which they received from a common grantor. P could not access a public road from his property w/out crossing over someone else’s property, so he used a road on D’s property.  P wants an injunction to prevent D from building a levee which floods the area by which P passes to get to his land. P claims an easement by prescription.
PRIOR PROCEEDING: Trial ct.: Othen had an easement of necessity. Court of Civil Appeals – no easement of necessity or prescription; judgment for the Rosiers.
QUESTION: Does P have an easement of necessity or prescription to get to his land?
HOLDING: Ct. says that to prove easement of necessity, must prove that there was no other way out at the time of severance – at the time the parcel was landlocked/time of conveyance. Othen failed to show that easement was implied in the original deed or that roadway was necessary, not merely convenient, to reach his property. Not sufficient that parcel is landlocked now; must have been necessary at time of conveyance. No easement by prescription either b/c failed to show exclusive use and a fixed path (specific location) which would have given the owner notice.  Use by express or implied permission or license no matter how long continued cannot ripen into an easement by prescription. P’s use was permissive, not adverse, since others used the right of way.
Justifications:   policy -- reliance - Othen did things in reliance on continued use of and to get to his property.  Owners were on notice of his use (could have stopped him)

f. Matthews v. Bay Head Improvement Association  (NJ 1984)	cb815    (Public Trust Doctrine)
FACTS: 76 separate parcels of land bordered beach, owned by private individuals (D) and the Bay 
Head Improvement Assn. (D), which owns 6 of them.  D monitored beach strictly, and only allowed Assn. members to use beach during peak hours in the summer.  The Assn. hired about 40 employees who serve as lifeguards, beach police, and beach cleaners.  Membership was limited to Bay Head residents.  Except for fisherman, who were permitted to walk through the upper dry sand area, only members were permitted to use beach b/t the hours of 10am and 5:30pm during the summer. Matthews (P), the Public Advocate, brought suit on behalf of nonmembers who were not allowed to use beach.  
QUESTION: Public trust doctrine applies to the municipally-owned dry sand beach immediately landward of the high water mark (Avon). Does the public have a right to gain access through and to use the dry sand area owned not by a municipality but by a quasi-public body?
HOLDING: Under the public trust doctrine, the public must be allowed to access and use dry sand areas of beaches. Under the common law rule, the public has access to the mean high tide. Beaches may be used for traditional common use, i.e.: boating, fishing. The ct. extends this rule for modern needs: swimming. Public has a reasonable right of passage across the dry sand area and can use the dry sand area as is reasonably needed to enjoy the access to the beach. Remedy is that association has to open up its membership. Ct. uses PTD b/c doesn’t fit into easement by necessity or prescription.

g. Pazolt v. Director of the Division of Marine Fisheries  (MA 1994)	Supp.88
FACTS: P owns title to land to the mean low tide line (MA cut off point). Town licensed an individual 
shellfishman to use aquaculture to grow shellfish from mean low tide line to mean high tide line. P argues that D’s activities not w/in public trust doctrine, whose scope is fishing, navigating, and clamming/oystering – cannot set up structures.
PRIOR PROCEEDING: Sup. Ct. judge said P had title to flats, 
QUESTION: May the shellfishman be permitted to use aquaculture to raise shellfish above the low mean water mark under the license granted by the town? 
HOLDING: No. P holds title to the tidal flats; D may not engage in aquaculture b/w high water mark and 
the extreme low water mark; the licenses granted for this purpose are invalid to the extent that they permit D to conduct aquaculture activities or construct structures on the tidal flats above the extreme low water mark. Also, D is not permitted to “plant, grow and take shellfish” on the tidal flats either w or w/out structures. Aquaculture is not protected fishing under the Colonial Ordinance, is not natural and is therefore not a protected activity. Public has right to fish, but not to fix structures. If the town wants to help shellfishmen, can pay landowners for a license to do this (eminent domain)

2. Assignability of Easements
a. Miller v. Lutheran Conference & Camp   (PA 1938)		cb823     (easements in gross)
FACTS: Two brothers take control of land and make lake for recreation and an ice business. Frank was 
granted an express easement in gross to fish and boat. He obtained an easement to bathe in the lake by prescription. Frank granted an easement in gross of 25% of the lake to boat and fish to Rufus and his heirs and assigns forever as part of a recreational business. Rufus got an easement to bathe by prescription. Rufus dies. Rufus’ executors grant to Lutheran camp an easement to fish, boat and SWIM. Heirs of Frank try to enjoin Lutherans from swimming in lake.
QUESTION: Can the easement in gross be passed from Rufus? Is his 25% interest divisible? 
HOLDING: As to assignability: There is no reason to prohibit assignments, but there is a difference 
between personal and commercial interests. As to divisibility: Ct. looks to the “one stock” rule, which says that an easement conveyed as an entirety cannot be divisible. Limits use to prevent over-exploitation of the rights of an easement. Reduces ct. actions by leaving to parties to devise a solution.

Camp can negotiate w/ Frank’s heirs and Rufus’ heirs to get permission/license.
(cb831)	– could have been treated as tenants-in-common
		– could be treated as “riparian owners” w/ a right or reasonable use

3. Scope of Easements
a. Brown v. Voss   (WA 1986)			cb832
FACTS: Voss (D) granted Brown (P) an easement over his land.  D bought another parcel of land, and attempted to use D’s land to access it.  D wanted an injunction to refuse P’s use of the land for the new easement.  P sued for use of the land.  The ct. denied D’s counter claim for injunction.  D appealed.  The ct. of App. reversed and P appealed.
PRIOR PROCEEDING: Trial ct.: Denied injunction sought by Ds. Ct of Appeals: reversed. Here, reversed, reinstate the judgment of the trial ct. Gives Browns and Vosses damages of $1 – Ds for a slight inadvertent trespass by Ps outside the easement.
QUESTION: To what extent can the holder of a private road easement traverse the servient estate to reach not only the original dominant estate, but a subsequently acquired parcel, when those combined parcels are used in such a way that they do not increase the burden on the servient estate?
HOLDING: Ct. ignores/changes bright line rule, that only orig. dominant estate can benefit, into a reasonableness test. Will not allow injunction b/c P put substantial money into property -  D sat for over a year & did nothing. No real damage to D’s property &  D only brought injunction to use as leverage against P. Parcel would be totally landlocked – so easement is for a reasonable use. Ct. extends an express easement appurtenant. Relies on rule of reasonableness: no increased burden -no injunction.

b. Sheftel v. Lebel  (MA 1998)			Supp.75
FACTS: Ds have an easement to the mean high water mark. Ds sought to extend their easement across land owned by Ps by building a walkway/pier to the mean low tide line so they can get their boats out more easily. Ps say extent of easement was expressly terminated by relevant deeds at the mean high water mark, thus sought declaration preventing proposed extension. 
PRIOR PROCEEDING: Trial ct. allowed them to extend the easement to the mean low water mark and construct walkway and pier for the reas. enjoyment of their easement, b/c w/o walkway, use of 
easement would be difficult and sometimes dangerous, as well as environmentally damaging. 
QUESTION: May Ds build walkway/pier to the low tide mark for the reas. enjoyment of their easement?
HOLDING: No. Ct. looks at and follows specifics of easement language. Says easement unambiguously 
not intended to extend beyond high water line. In addition, language says “foot travel only,” which is consistent w/ intent of grantor limiting easement only to firm, upland ground above the mean high water line. Based on Public Trust Doctrine, public can use tidal flats for boating, so Ds have no need to extend easement. In addition, under the Public Trust Doctrine, public is not allowed to construct anything, including walkways/piers.

4. Termination of Easements
a. Preseault v. United States   (US Ct. of Appeals 1996)		cb842
FACTS: 1970 the RR shut down service - 1975 removed tracks but the RR never applied to the Interstate Commerce Commission  for an abandonment order.  In 1985, RR entered into an agreement w/ St. of Vermont & City of Burlington that the latter would maintain the former RR strip as a public trail.  In 1986, the ICC approved the trails agreement & authorized the RR to discontinue service. Ps, owners of the underlying fee simple, sued the US claiming Rails-to-Trails was unconstitutional. In 1990, the S.Ct. held the act was constitutional, but that the Presaults may have a remedy under the 5th amendment if St. law defines it as a taking of their property. Ct. of Appeals looks at it based upon trad. rule of takings law that permanent phys. occupation of prop. by the gov’t or the public is a taking of the owners’ property.
QUESTIONS: (1) Did RR own land in fee simple (no problems) or as an easement (other issues)? (2) If easement, what is scope? (3) Did  RR abandon easement, thus extinguishing the easements & allowing Ps to take possession of it? (4) Is compensation due Ps for use of RR right-of-way as a public trail?
HOLDING: (1) Ct. says land is held as easement, b/c RR conveyed no more than what was needed, both through private conveyances for two parcels of land and eminent domain for the third. (2) The original intention was to use the easement for RR transportation, nothing more. Since the idea of using the easement for public trails was not foreseeable at the time of the establishment of the easement, the scope of the easement remains RR use (cb848 and below). [Modern view follows the Restatement: as times/technology changes, development of use of land changes.] This would be one ground for concluding a taking. (3) Vt. state law says that easements are not extinguished by simple non-use, but by affirmative acts w/ present intent to relinquish. Since RR tore up tracks in 1975 and no move has been made to reinstitute service on that line (despite RR’s arguments that it could easily be done, they’ve been charging fees to use land, etc.), ct. finds an abandonment, thus another ground for concluding that a taking had occurred. (4) There was a physical taking of the right of exclusive possession that belonged to the Ps, and the Fifth Amendment compels compensation.

Changes in use:
General Rule (case cb848): Scope of easement may be adjusted in the face of changing times to serve the original purpose, so long as the change is consistent w/ the terms of the original grant. Parties are to be presumed to have contemplated such a scope for the created easement as would reas. serve the purposes of the grant. Does not permit a change in use not reas. foreseeable at the time of the establishment of the easement.
Restatement § 4.10 (cb840): “The manner, frequency, and intensity of the beneficiary’s use the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.

Changes in location:
General Rule: location of the easement, once fixed by the parties, cannot be changed by the servient owner w/o permission of the dominant owner.
Restatement § 4.8 (cb841): grants the servient owner the right to change the location of an easement, at his expense, if the change does not significantly lessen the utility of the easement, increase the burdens on the holder of the benefit, or frustrate the purpose for which it was created.

5. Negative Easements			cb854
Right of the dominant owner to stop the servient owner from doing something on the servient land. English cts. recognized four types: (1) blocking your windows; (2) interfering w/ air flowing; (3) removing bldg. support; (4) interfering w/ flow of water. Seemingly closed in England.
Not so closed in U.S.: views, solar easements, conservation easements. 

C. Covenants Running with the Land
*Determined by remedies sought:  injunction v. monetary damages
*Private arrangements of land use to control the future of the land use property
*Real covenants enforceable at law for monetary damages; equitable servitudes enforceable in equity 
	for injunctive relief
*Must be in writing
*promises running with the land --  can enforce against the owner and successor.
*Courts unwilling to enforce negative easements even though functionally similar to real covenants and
 	 equitable servitudes.

Covenants define housing patterns in the US 
		– suburbs would not look like they look now w/o planned communities
		– style/social relationship maintained through equitable servitudes/real covenants
		– residential neighborhoods maintained color bar through servitudes
		– price, # of garages, race, religion, shrubs, paint, design approval, single-family use, etc.

Begin w/ a bargain – put something in the deed. Looks like a contractual mechanism, but different b/c in deeds, thus can run w/ the land. The people bound by this may not have been parties to the original agreement. 
		
Two different types of covenants: real covenant and equitable servitude: the promise could be exactly the same, the ct. decides what kind of covenant it is by what remedy is sought when covenant is not honored
If you sue for damages  -- real covenants --- if you sue for an injunction  -- equitable servitudes)
		– cts. much more willing to give injunctive relief than damages
			– if injunctive, only affects that asset – that piece of land
			– if monetary damages, greater burden
			– injunction goes with the interest of the original parties (can’t buy your way out of the promise)

1. Historical Background
	a. Covenants Enforceable at Law: Real Covenants  cb857
		– plaintiff asking for damages
		– Requirements stricter than if equitable servitude

		1. For BURDEN to run with the land:
				A. When originally promised, intent to bind successors (using word “assigns” or clearly stating 						that you want to bind successors)
				B. The promises “touch and concern” the land - unarticulated public policy concerns
				C. Vertical privity AND horizontal privity (horizontal is easier in the US)

			A. Intent to bind
				– Spencer’s case – LL/ten case about whether covenant to build a wall binds assignees
					Ancient ct talks about the intent of the original parties 
					– if grant says “grantee and his heirs and assignees” 
						OR deed explicitly says “covenant is intended to run with the land” 
						then burden does pass
					– if no language today, need some kind of intent to bind

			B. “touch and concern” 
				virtue of vagueness – not specific  - “you’ll know it when you see it”
				cts use it to strike down bad ideas (w/o saying policy)
					– could have struck down racial covenants by saying they didn’t t & c land
			 	must have something to do w/ land, affect the value of the land
					– kind that might not t & c – something personal b/w owners
			C. privity – horizontal and vertical
				Historically, needed BOTH horizontal and vertical
				1. Horizontal – relationship b/w original 2 parties (grantor - grantee)
					– both English and American cts. need it to run
					English cts. – only relationship for privity is the LL/ten relationship so not many real 								covenants in England
					US – different kind of relationship, including grantor/grantee, b/c we have recording system 
							(means suburban development can work)
						– can always develop grantor-grantee relationship through a straw
						– the promise has to be in the original grant b/w the grantor and grantee
						– new rules don’t require horizontal privity as much b/c you can always establish it
				2. Vertical – relationship b/tw one orig. party and particular successor in interest
					– successor must succeed to exact estate in land as held by successee
						– if orig. party had fee simple, and successor has life estate, BURDEN does not run	
						– LL/Tenant relationships – does the burden run to the tenant?
							– new Restatement: 	negative promises should be enforceable against tenants 
										affirmative promises should not be enforceable
							– exception for what is reas. for tenant to undertake

Privity: horizontal and vertical

A	Þ	B		A and B have an agreement not to build a factory - in 
				deed -- benefit and burden to run with land dependant 
ß		ß		(for covenant to run - strict vertical privity)	

C	Þ	D
(benefit)		(burden)

classic covenant problem - if there is a homeowner’s association is there privity -- ex. even if every person in association agreed to an environmental provision with land - it is not enforceable b/c no privity - nothing running with the land

		2. For BENEFIT to run (REAL COVENANTS)
			The benefit runs to C if C can prove:
				A. When originally promised, intent to bind successors
				B. The promises “touch and concern” the land
				C. Relaxed vertical privity (if C is tenant, succeeds to some of the benefit)

			– if you are an outside group w/o ownership over a piece of land, cannot sue
				(Neponsit is slightly different b/c group represents interests of owners)	
			– developer comes in to build office bldg. 
				– needs variance from city, so makes deal w/ city for public space	
				– who can sue? NOT city, b/c no interest in land

	b. Covenants Enforceable in Equity: Equitable Servitudes  cb863
		– plaintiff asking for injunction
		1. For BURDEN to run
			A. intent to bind successors
			B. promises touch and concern the land
			C. successor in interest has actual or constructive notice
			D. promise is in writing
		2. For BENEFIT to run
			A. intent to benefit
			B. touch and concern
			C. very relaxed vertical privity (in some jurisdictions)
Cts. generally hold that if a neighboring land benefits from restriction, it was intended to run with land

Tulk v. Moxhay	(Ct. of Chancery 1848)		cb863
FACTS: Tulk conveys property in the center of Leicester Square to Elms with the agreement that Elms will (1) maintain the garden and iron railing (affirmative covenant); (2) give people keys to the garden if they pay (easement); (3) not cover ground with a building (negative covenant). Elms deeded the land to Moxhay at a later time w/o the promises, though he (Moxhay) had notice of it, and wants to build on the land. Tulk, who owns adjoining land, sues for an injunction. There is NO horizontal privity b/w Tulk and Elms b/c not LL/ten relationship (requirement for privity in England)
QUESTION: Can Tulk get an injunction against Moxhay, even without strict requirements?
HOLDING: Tulk receives  injunction b/c of policy reasons: (1) building would render adjoining land worthless – land is worth so much b/c of square/garden. Overall value greater if square not developed. Also, would be impossible for someone to sell piece of land w/o risk of rendering what he retains worthless; (2) squares should continue; (3) unfair if Elms got discount in orig. purchase, then makes a profit; (4) would defeat purpose/value of  land itself. Ct. also says b/c Moxhay had notice of covenant, he cannot act against it. Court was either creating equitable servitude (for the first time) or expanding law of negative easements.

2. Creation of Covenants
a. Sanborn v. McLean  (MI 1925)		cb868
FACTS: McLaughlin owned 91 lots, conveyed them through deeds over a period of time. Some of them (53), including the original conveyances, have restrictions (residential use only) on them, some (48) do not. Ds own a lot in Detroit with no restrictions on the deed, start to build a gas station on it. Neighbors sue for an injunction based on argument that this will be a nuisance per se, is in violation of a general neighborhood plan, and that the lot is subject to a negative easement barring such a detrimental use. 
PRIOR PROCEEDING: Neighbors get injunction, Ds appeal.
QUESTION: Can a covenant be enforced against Ds, even though their lot doesn’t have restrictions on it? 
HOLDING: Covenant enforced, because a reciprocal negative easement is created in all real property that is conveyed by the same common grantor even if the restriction are explicitly contained on some but not all lots. Ct. implies this negative easement (equitable servitude) b/c (1) many of the other deeds that went out had restrictions on them – D should have noticed that there were only single family houses and appears to be common scheme. Scheme arise from sale of first lot conveyed by common owner. First time lot sold out, scheme starts & gives rise to reciprocal easements. (2) inquiry notice – Ds have notice of history of restrictions on other deeds b/c in MI you have to check back on neighboring deeds. Also, should have looked around to see what neighborhood looked like. 
If properly done, buyers should demand that developers put restrictions in all of the deeds. Neighbors must look at all neighborhood deeds to figure out if theirs was intended to have a restriction on it.

b. Neponsit Prop. Owners’ Assn., Inc. v. Emigrant Industrial Savings Bank  (NY 1938)	cb873
FACTS: Neponsit Realty Co., the assignor of Neponsit Property Owner’s Assn. (P), conveyed land to Deyer. The original deed had a covenant stating that there would be an annual improvement charge of not more that $4 per year, which would be a lien running with the land, payable to subsequent purchasers. D bought the land at a judicial sale. P wanted to foreclose a lien upon the land. P brought action to recover this lien. D arguing that this is an affirmative act that does not touch and concern the land. Two issues: 1) touch and concern and 2) vertical privity.
PRIOR PROCEEDING: P awarded a judgment. D appealed denial of a motion for a judgment on pleadings.  
QUESTION: Does the covenant touch and concern the land, and is Neponsit’s role (not owning property) sufficient for the vertical privity requirement? 
HOLDING: A covenant in an original deed subjecting land to an annual charge for improvements can touch and concern the land. Ct says (1) Covenant does touch & concern b/c the burden imposed increases the value of the land and the maintenance fees are essential to the enjoyment of the prop.  The original intent of the grantor and the grantees was that the covenant run with the land and it is binding on subsequent purchasers. (2) Vertical privity: P asserting a benefit, even though they don’t own property.  Ct. says that they can still enforce the covenant b/c the assn. represents the other property owners in that the assn. is for the benefit of other property owners. Ct. considers assoc. as an agent of the property owners. Fairness also an interest: original intent to give permission to assign to an assoc.  To make P’s claim stronger, the assn. could own a parcel. D has affirmative obligation to pay. (even though the court doesn’t usually enforce affirmative promises)

Ct. passes by general rule (cb879) that the burden doesn’t run if the benefit is in gross (no dominant estate – benefit is not attached to a particular piece of land).Modern rule – if owner owns a piece of land that was intended to benefit, doesn’t matter about privity (i.e. third party beneficiary can still benefit (880 prob. 1)). 

distinction b/w affirmative & negative promises - courts have said in NY that they will not enforce an affirmative promise (adoption of English view) - why not? affirmative promise may be too burdensome, may affect alienability of land - easier to enforce a “shall not do” than to judge and enforce an affirmative promise such as “keep the garden in good repair” - court doesn’t want to have top determine what “good repair” is.

Restatement (p.884) suggests abandoning “touch & concern” requirement and substitute instead with public policy: how servitude affects property values, what the passage of time has done to the meaning of the servitude, etc. (Allow benefit in gross if there is a justifiable reason to enforce.) This replacement, which would look at how to refuse to enforce a covenant both at its inception and after a period of time, would be b/c it is more straight forward.

Purpose of “touch and concern” requirement - a way to be certain that the parties wanted the covenant to run with the land - give courts power to limit incumbrances on the land (regardless of original parties intents)

c. Restatement (Third) of Property, Servitudes, §7.11  cb885
		Modification or Termination of Certain Affirmative Covenants
		– provides sets of requirements to terminate promises – when, after a passage of time, they shall no longer be enforced.
		– may also be modified if obligation becomes excessive

d. Caullett v. Stanley Stilwell & Sons, Inc.  (NJ 1961)		cb885
FACTS: Developer (D) sells first buyer a piece of land w/ a requirement that only D can build the first bldg. on the land. (D wants to seel off land and be the builder of any houses on land) New buyer (P) doesn’t want to abide by this promise - doesn’t want D to be his builder) Action for a injunction to quiet title to a parcel of land – P wants recital stricken from the deed. 
PRIOR PROCEEDING: Trial Ct.: summary judgment for P. D appeals.
QUESTION: Is the recital in the deed an enforceable covenant restricting Ps use of land?  	
HOLDING: No, the recital is not enforceable, because its meaning is vague and ambiguous, (should tell what type of structure, costs etc.) it impairs the alienability of the subject property, and it is meant only for a personal benefit, not to benefit the land. Ct. says the burden doesn’t touch and concern the land (giving a specific requirement of architecture style or an architect would touch & concern). Court views this as an affirmative promise (which courts are wary of enforcing). Even if it did, the burden won’t run when the benefit is in gross and there is no benefited land. It is only a personal covenant b/c it does not operate to influence the operation and use or enjoyment of the premises. Personal covenants do not run with the land.

Conservation servitudes run into the rule that if a benefit is in gross the burden will not run.  However, this is usually not a problem b/c of statutes authorizing conservation servitudes in gross.

Notes, cb890 problem #4:  Problems city may have in allowing a variance to an ordinance if the developer gives the city a covenant running with the land limiting the use of five apartments to families of low income:
	– since the city doesn’t own any property, come up against the burden doesn’t run where the benefit is in gross.
	–doesn’t touch and concern the land in that it deals with income levels of families
	– no horizontal privity b/n landowner and city
	– affirmative obligation which could require the cts. to uphold, supervisory problem.
	– does it affect the alienability of the property?
	– can city transfer benefit in gross if they grow tired of the property?

e. Defeasible Fees as Land-Use Control Devices		cb890
		Defeasible fees may be employed to control land use.  A defeasible fee differs from a servitude in that the remedy for its breach is forfeiture, whereas the remedy for breach of a servitude is damages, injunction, or enforcement of a lien.

3. Scope of Covenants
a. Hill v. Community of Damien of Molokai   (NM 1996)		cb891
FACTS: Community was non-profit organization that provided homes to people with AIDS and other terminal illnesses. There was restrictive covenant limiting the use of property to single-family residences. The homeowners bring a suit with the argument that the single family residence does not include group homes for unrelated people living together.
PRIOR PROCEEDING: District Court ruled in favor of homeowners and enjoined the use of the property as a group home. Ds appeal.
QUESTION: Does the restrictive covenant restrict the use of the house as a group home? How does the Fair Housing Act apply to this situation?
HOLDING: The group home did not violate the restrictive covenant, and even if it did, the Fair Housing Act would render it unenforceable as a matter of law. General rules of construction: (1) if language ambiguous, resolve against restrictions (2) will not read restrictions by implication (3) must interpret reasonably/strictly to not create strained construction (4) give words ordinary/intended meaning. 
Did not violate restrictive covenant for 3 reasons: (1) not a commercial use, (2) residents met single-family requirement, (3) increased traffic was irrelevant. Group homes are not commercial per se just because of administration. Do residents bear character of relatively permanent family unit? “Family” is to be construed broadly b/c ambiguity in the covenant; not restricted to those related by blood or law. Albuquerque zoning ord.: family = any group of not more than 5 people living together in a dwelling.  Strong policy interest removing barriers to integrate disabled people into residential communities.  Increased traffic complaints irrelevant since the covenant was not directed at controlling traffic or street parking, but the maintenance of the structural appearance and use of the homes.  
Enforcement violated the Fair Housing Act for 2 reasons: disparate impact and reasonable accommodation. Community failed to meet burden of proof for claim of discriminatory intent – have to prove that the specific handicap of the potential residents was in some part the basis for the policy being challenged. Did prove that the homeowners’ conduct resulted in a discriminatory effect because disabled people frequently need congregate living arrangements. FHA requires reasonable accommodation so long as the accommodation would not pose undue hardship or interfere with the plain purpose of the covenants. Non-enforcement of the covenant would have been a reas. accomm.

BACKGROUND: post Civil War, § 1982 – equal right to own prop. S. Ct.’s in Plessy was that sep. but equal did not violate the 14th Amend., § 1982 b/c they req’d gov’t action. § 1982 changed in 1968 (Jones v. Mayor) to say it doesn’t have to be just public – can be private, too. 

One of key instruments in maintaining segregation was covenants. Most common kind – racially restrictive. Opponents had a well-orchestrated campaign to get rid of them. 1917 – Buchanan v. Whorley – S.Ct. struck down rac. restr. zoning b/c zoning interferes w/ freedom of contract. 1926 – Corrigan v. Buckley – In dicta, said that covenants are purely private, not gov’t, thus giving a seal of approval to covenants. 1945 – NAACP began an effort to get rid of rac. restrct. covenants

b. Shelley v. Kraemer  (S.Ct. 1948)		cb902
FACTS: Two cases joined. (1) Based on a restriction by property owners that for a term of 55 years, no property in the neighborhood could be occupied by anyone not of the Caucasian race. Shelley, black man, received warranty deed from seller, and Shelley did not know about the restrictive agreement at the time of the purchase. S.Ct. of MO held the agreement effective and that it did not violate rights guaranteed by the Constitution. (2) Factually similar: S.Ct. of MI affirmed lower court’s decree that the petitioners move. Petitioners argued equal protection claim.
QUESTION: Does Equal Protection Clause inhibit judicial enforcement by state courts of restrictive covenants based on race or color? 
HOLDING: Enforcement by state courts of racially restrictive covenants constitutes state action under the 14th Amendment. Fourteenth Amendment intended to protect the right to own property, as this was considered an essential pre-condition to realization of other civil rights and liberties. However, §1 of the Fourteenth Amendment only prohibits State action, not private conduct. So long as restriction was effectuated by voluntary adherence to its terms, there has been no state action and the Amendment has not been violated. In this case there was state action because the purposes of the restriction could only be secured by judicial enforcement by state courts. If the state courts hadn’t intervened, petitioners would not have been able to occupy the properties.
Common law arguments: (1) restraint on alienation – affects marketability, restricts buyers; (2) doesn’t touch and concern land – race has nothing to do w/ land; (3) violates 1866 law (§ 1982) – though under Plessey it was OK; (4) times have changes, conditions no longer enforceable; (5) general public policy – cts. have power to strike down conditions of land that violate public policy

4. Termination of Covenants
	When do covenants end? (1) by prescription (violate for 15 yrs, people estopped from enfocing); 
		(2) by their own terms
		
a. Western Land Co. v. Truskolaski  (NV 1972)			cb907
FACTS: Developer (D) owns border lots on a subdivision, and wants to get out from under the single family residential use covenant (which he started). Ps, homeowners, brought an action to enjoin D from constructing a shopping center there. D claims that the area around the land has changed enough, that there have been some violations of the covenant already, that the city council is considering rezoning for commercial use (though they didn’t actually do it), and that this rezoning means they think that the land is better used for commercial purposes than residential.  
PRIOR PROCEEDING: Dist. Ct. held that the original restrictive covenants were still enforceable.
QUESTION: Did changes in the area around the neighborhood nullify the covenants? 
HOLDING: D hasn’t carried his burden of showing that the subdivision is now not suitable for residential purposes because of changed conditions. Isolated violations of the covenants don’t constitute an abandonment of the original agreement.
SIGNIFICANCE: For the defense of change of conditions to succeed, most cts require either that (a) the change *outside* the subdivision must be so pervasive as to make *all lots* in the subdivision unsuitable for the permitted uses, or (b) substantial change must have occurred *within the subdivision* itself. Change outside the subdivision that affects only the border lots in a subdivision is not sufficient to prevent enforcement of the covenant against the border lots.

b. Rick v. West  (NY 1962)		cb912
FACTS: Rick subdivided 62 acres in 1946, filed single-family restriction covenants. In 1956 P sold 1/2 acre to D (West), she built a house. 1957: land zoned for residential use. Rick contracted for sale of 45 acres contingent on rezoning to industrial use. Town rezoned, but D wouldn't release covenant in her favor and sale fell through. 1959: Rick conveyed remaining acreage to Ps, who contracted to sell 15 acres to a hospital. D again refused to release covenant. Ps sued, claiming covenant unenforceable due to change of conditions.
QUESTION: Is covenant still enforceable with only one holdout?
HOLDING: D may continue to abide by covenant as framed and will be protected by all the power of the law. As a general rule of equity, a ct. of equity may deny an injunction when the hardship to D is great and the benefit to P small. But where the right to the benefit of a servitude is clear, the defense of disproportionate harm and benefit is usually not persuasive to a ct. in covenant cases.

c. Restatement (Third) of Property, Servitudes, §7.10  cb913
Section 7.10 Modification and Termination of Servitudes because of Changed Conditions
	When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, the court may terminate the serv.
If the purpose of the servitude can be accomplished,  but because of changed conditions the servient estate is no longer suitable for any use permitted by the servitude, the court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude.
	Conservation and preservation servitudes are not subject to termination under this section.

d. Massachusetts Statute (cb914, note 2)
Makes damages rather than an injunction the only remedy in a number of cases. No restriction shall be enforced or declared to be enforceable unless it is determined that the restriction is, at the time of the proceeding, of actual and substantial benefit to a person claim rights of enforcement. Only money damages if any of several conditions exist, including (1) changes in the character of the properties affected of their neighborhood; (2) conduct of persons ; (3) for common scheme, parcel not in a group of parcels still subject to the restriction; (4) impede reas. use of land; (5) enforcement is not equitable or in the common interest.

e. Pocono Springs Civic Association v. MacKenzie  (PA 1995)		cb916
FACTS: MacKenzies invested in property which later turned out to be worthless (couldn’t put in a  septic system - land wouldn’t perk -  so couldn’t build on the land). They attempted to abandon property by trying to turn it over to the civic association (they refused), stopping tax payments, and sending notarized statement to all interested parties that they intended to abandon property. Association sued to collect association fees. MacKenzies argued that intent to abandon was a question of fact which precluded summary judgment.  
PRIOR PROCEEDING: Trial court granted summary judgment for Civic Association.
QUESTION: Have Ds properly terminated their easement by abandonment? 
HOLDING: No. Ct. found that under Pennsylvania law, perfect title cannot be abandoned.  MacKenzies still had perfect title and remained owners of real property in fee simple.  Absent contrary proof, possession presumed to be in party that has record title.  Their intent is irrelevant. 
POLICY RATIONALE: Statute of Frauds - have to convey interest by deeds. No authority exists in state to abandon under the MacKenzies’ conditions. Ct. afraid people with get out from under liability for misdeeds done on the property.  If people could abandon, it could lead to unseemly scramble to take over abandoned property.

D. Common Interest Communities

1. Nahrstedt v. Lakeside Village Condominium Association, Inc.   (CA 1994)		cb921
FACTS: Nahrstedt owned condominium in Lakeside Village. She had three cats, which she kept inside her apartment, but the project’s declaration recorded by the developer had pet restriction. CA legis. enacted Civil Code that requires cts to enforce covenants, conditions and restriction contained in the recorded declaration of common interest development “unless unreasonable.” Court of Appeals concluded that homeowner’s association could only enforce it if had proof that these specific cats would be likely to interfere with the right of other homeowners to peaceful and quiet enjoyment of property – looked at the reasonableness as applied to her and to the specific cats. 
QUESTION: Is a pet restriction contained in recorded declaration of condominium complex enforceable against the challenge of a homeowner?
HOLDING: Supreme Ct. must look at the reasonableness of the covenant overall, not as applied to specific people. Makes a distinction b/w restrictions in the master deed and restrictions made by condo assns after people had accepted master deed. Restrictions set forth in the master deed should only be held unreasonable/unenforceable if such restrictions are (1) arbitrary or (2) in violation of public policy or fundamental constitutional right. The pet restriction was reasonable, not arbitrary and did not go against public policy: Reasonable and not arbitrary because rationally related to sanitation, health and noise concerns. Public policy favors enforcing restrictions in the master deed because it protects expectation of owners, which is essential to common interest property (doesn’t think so highly of restrictions made after the fact). No public policy favoring pets and no constitutional or statutory right to keep pets.

2. David Willman, Woman Faces Fine for Kissing Her Date  cb934
3. Riss v. Angel  cb936
4. Timothy Eagen, The Serene Fortress: Many Seek Security in Private Communities
	a. Comment, Public Gated Residential Communities
		
VII. An Introduction to some basic Constitutional Principles Concerning Property: the Limits of Police Power and the Constitutional Prohibition against taking Property

ZONING: state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens.  Zoning power is based on the state’s police power and is limited by the Due Process and Equal Protection Clauses of the 14th Amendment, and  “the no tacking without just compensation”clause of the 5th Amendment.  Cities and countied can exercise zoning power only if so so authorized by a state enabling act.  (state courts differ on how much planning is required for zoning,  no specifics on how)

Zoning divides town into geographical pieces with dimensional requirements and how to apply, appeal, etc. -- specified uses for each -- Need map and narrative  -- notion that if segregated uses then it would create more efficient use of land, the use of land would continue through time, actually huge demand for not living with theses restrictions, demand for changes and time went by (political pressures to make changes)
-- non-conforming uses- i..e. shop in residential property, not asked to leave, thought that eventually the non-confoming would close and go away, instead grocery in residential became very profitable and land highly valuable
5th Amendment –govt. cannot take land without just compensation
14th Amendment -  includes states  -- prohibition of deprivation of property without due process of law

1.) non-conforming use- a use that exists at the time of passage of a zoning act that does not conform to the statute cannot be eliminated at once
2.) Special use permit- one that must be obtained, even though the zoning is proper for the intended use. (usually required for hospitals, funeral homes, drive-in businesses,etc.)
3.) Variance- a departure from the literal restrictions of a zoning ordinance granted by administrative action.
4.) Unconstitutional takings and exactions- may reduce value of real property. If the ordinance constitutes a taking, local government must pay damages to the landowner equal to the value of reduction.  If the ordinance regulates activity that would be considered a nuisance under common law principles, it will not be a taking even if it leaves the land with no economic value.
a. Denial of All economic value-Taking- regulation that deprives owner of all economic use of this land constitutes a taking (unless use was prohibited by nuisance or property law when owner acquired property)
b. Denial of Nearly All Economic Value- Balancing Test- If a regulation leaves property with very little economic value, to determine if there was a taking the court will balance:  
	1.social goals of regulation,
	2.diminution in value of the property, and 
	3.owner’s reasonable expectations for use of the property.
c. Unconstitutional exactions- local governments often demand, in exchange for zoning approval for a new project, that the landowner give up some land for public purpose, such as widening a street.  However such demands are unconstitutional under  5th & 14th Amendment unless the government proves:  1. government demands are rationally connected to an additional burden the project will place on public facilities or rights, and  2. the dedication is reasonably related in nature and extent to the impact of the proposed development
d. Remedy- if a regulation constitutes a taking, the government will be required either to compensate the owner for the property or to terminate the regulation and pay the owner damage for the temporary taking.

Village of Euclid v. Ambler Realty Co.   cb950
Supreme Court of the U.S. 1926- set up as test case to challenge constitutionality of complex zoning ordinance ---- kept out immigrants
Facts:    Euclid (D)zoned property of Amber realty (P) in a manner which materially reduced its potential value, city divided into “use” districts, also “area” districts and “height” districts (overlay zones - not classic type of zoning ordinance) The ordinance restricted the building of apartment houses, hotels, churches, schools or any other public or semi-public building for the first 620feet from Euclid Ave., then no industry, theatres, banks, shops for the next 130 feet.   Property value of Amber realty dropped from $10,000 to $2,500 an acre.  Claimed that deprivation of his property is in violation of due process violation of the 14th Amendment, not challenging ordinance as applied to his property, but the mere existence of zoning ordinance has a negative impact on his property and on its face is unconstitutional. P did not seek relief from the zoning ordinance - he was challenging zoning itself as a valid exercise of the police 
Zoning is like the control of nuisance, apartment houses are like nuisances court refers to apartment houses as “parisitic” -- need to protect single family houses and people in them - the “public” interest (health, safety and welfare) is only interest of people in single-family homes (class distinction)
Court says in determining consitutionality of ordinance - the meaning doesn’t change- the application changes -- these matters are “fact bound” - health, safety and welfare will change with the times - interesting b/c this was a very conservative judge saying this - clearly this was solely to legitimize his ruling.

Rule:  A zoning ordinance, as a valid exercise of the police power, will only be declared unconstitutional where its provisions are clearly arbritary and unreasonable, having no substantial  relation to the public health, safety, morals or general welfare.  *LANDMARK CASE*

Rationale:  we are not going to second guess the zoning laws (defer to local bodies)

5th amendment states that the gvt cannot take property from an individual for public use without due compensation
5th amenddment applies to states through the due process clause of the 14th amendment

Loretto v. Teleprompter Manhattan CATV Corp. -- pg. 1124  - statute that requires landlords to allo cable operators to install cable facilitites on the proeprty. P sued saying this was a taking of her proerty and she is intitled to comenstation. No balance of stentght of public interest vs. impact of -- court makes distinction b/w permananet physcial occupation vs. temporary invasions of the space -

Hadacheck v. Sebastian  cb1140
the city attempted to ban the use of brickyards - or any brick related acts -  within certain limits of the city  -- this is a zone-like restriction (restricted one kind of use in one particular part of the city) -- case took palce in 1915- pre-zoning -- propety owner says the clay on the land is valauable - the land is not meant for residential use - it was “rural” when he bought it -- not feasiable to move clay -- land is worth much less if it is restricted in thei way. Consistuional claim -- it si a deprivation of his property - a taking w/out just compensation & it unfairly doisadvantages him in reagrds to otehr brickyards - eqwual protection type argument (to which court says - only prohibition in that area - he is free to move his business elsewhere - the  govt. doesn’t have to treat you absolutley eqwually with respect to this partaicular ill - they van go one step at a time) -- Heart of matter here is excercise of police power - court decides this is not a taking - b/c it doesn’t deprive him of the actual property just use of it in the way he has been  - he says transporting clay and using elsewhere is expensive -  city says we need progress and change - if this amounts to a taking we will never be able to progress - we need to nrestrict in this way. P claims he is a legiyimate business I do good things - court says his business is “nuisance-like” - this ordinance is made in the public good - balance of good of birckyard vs. nuisance of it - we are deferring to city council (whoever enacted ordinance) and if they feel this is a good restriction, we will follow it.
it is not a taking if the govt does not actually acquire the land (common view in those times)

Pennsylvania Coal Co. v. Mahon  cb1147 -- new view - a police power regulation could go too far and could amount to an unconsitutional taking of property-- a regulation of land could amount to taking of property -- should be limit on what govt can do -- Penn statute reqwuired that miners keep enough coal in place to prevent surface subsistence - (there were surface rights and mining rigths)  compare interests of property owners & interests of coal miners -- Holmes doesn’t see this statute as serving a public purpose - sees it as protecting a rpivvate property interst (of thsoe with surface rights) -- three estates recognized in Penn. - surface, mineral, & support - Hplmes says owners of the surface should have acquired supprort estate just b/c they neglectedto do so - the govt cannot require coal comapnies to maintain supprto estate (govt cannot “take” support estate.) (Last line of case --) If a private person or community has taken the “risk” of only acquiring the surface rights - why should they be given greater rights than those they boguht simply becasue the risk has now become a danger??? 
reciproctiy of advantage: even though you are restricted - you are getting benefits of others being restricted. -- burdens everyone and benefits everyone
Nollan v. California Coastal Commission pg. 1181 - P wanted to destroy a bungalow in great disrepair build a larger house (of the same general sort as rest of neighborhood) - in order to get a permit they were to be required to agreee to an easement that would allow the public access to the waterfront - - Supremem Court holds that if the commission wants to restrict the Nollans property by requireing an easement on their property in order to allow a permit for rebuilding - it is considered a “taking” and they must compensate the Nollans for it.
signals a willingness by Supreme Court to scrutinize land use/restrictions more closely . From a doctrinal persepective - there will be a five point approach: 

1.	could govt have prohibited the use in the first place (denied permit)? 
2.	would that denial have been a “taking”? 
3.	identify adverse affects that would have justified denial of the permit? 
4.	matching the exaction to the adverse effect (in Nollan the exaction is the passage - the easement )
5.	case by case close scrutiny (look at these issues on a case by case basis) 

question that remained unanswered in Nollan was the strength of scrutiny that the court would give between the nexus b/w the the restiction and the reason given for it
Nollan changed the burden of proof - in this case the court focused on the coastal commission (Def) to show the nexus 

Dolan v. City of Tigard  pg. 1186 -- store owner wanted to make the storefront bigger and make a bigger parking lot  -- city said you’ll have to do certain things -- dedicate 10% of property to a pedestrian and bike way. requirement of open space for each owner - required the open space and required this walk/bike way. (could be combined) -- part of this area that would be dedicated is within the flood plain (where building is limited) -- link b/w exaction and building -- new development would increase traffic (bigger parking lot and bigger facility cause more traffic - this walk/bike way will offset traffic issue) -- flood control needs b/c of runoff caused by paved parking lot (as opposed to gravel one she has now)
Supreme Court said there was no real proof that the traffic would be reduced by the walk/bike way -- not enough of a nexus b/w the impact of the development and the exaction requirement --
what else could the city have come up with for proof -- the city had some pretty good statistical information regarding traffic increase b/c of store and that some traffic could be offset by the path - the standard the court was looking for was pretty high to meet - they wanted a connection b/w the actual users of the store and the bike path 
the burden of proof here is on the city planners -- major shift -- very different from Euclid etc. where the burden was on the petitioner -- court applying a general ad hoc, rough proportionality level of scrutiny -- this high level of scrutiny is justified by court by distinguishing from Penn Central: if we applied Penn Central questions to this case - you would look at nature of govt action and the economic effect on the landowner -- court says Penn Central involved a legislative scheme - this case did not
In this case the landowner had to deed certain things to her property -- in Penn Central the landowner had a restriction on use (couldn’t use air space) -- the physical exaction makes the court scrutinize the restriction more closely.

Lucas v. South Carolina Coastal Council   pg. 1198 Supreme Ct. of US  1992
Supreme Court reviews taking law
Facts:  1977 law required owners of coastal land in “critical areas” (including beaches and immediately adjacent sand dunes) to obtain a permit from the South Carolina Coastal Council prior to committing the land to a use other than the use the critical area was devoted to in Sept. 28, 77. In 1986, petitioner Lucas paid $975,000 for two residential lots on an island off the coast of South Carolina with the intent to build single-family lots since no parts of the parcels were critical areas under the 1977 legislation thus not required to have permit. Lucas filed in state court claiming taking, trial court agreed, South Carolina Supreme Ct. reversed reasoning that “when land use regulation is designed to prevent serious public harm,  no compensation is due regardless of the regulations’s effect on the property’s values”…US Supreme Ct. granted centiorari
P argues that when he bought the land there was no restriction on the land -- the purpose of the statute was to prevent serious public harm -- he claims that even if it is harm prevention if it wipes out my value/ investment - I am entitled to compensation --- Supreme Court (Scalia) agrees 
This is distibwuihsable from Euclid & other noxious use cases b/c in those cases there was not a total wipe out of economic value -- also in those cases there was really only a discussion/definition of the scope of the govts. polic power - not whether compensation should be required. 
court says the P lost “all economic value” - was there a complete wipe out?? rests on idea that the land is useless if you cannot make “productive use” of it.
The expectation of the owner was to build on it and realize his investment - he could however use the land in some way - he could sell it - camp on it etc. so maybe not complete wipe out -- court says even though there is some “value” there - if  the owner can’t ue it productively it is essentially valueless.
Lucas rule -- if you have a total wipe out (even if this is a valid regulatory purpose - constituing a valid exercise of police power) govt must compensate landowner
	exception -- unless there is a nuisance - state would have to show that the same result would have been achieved through litigation (must be a common law nuisance)
Scalia gets his reinterpretation of Consitution from the expectations of the people (pg. 1204)
makes distinction b/w real property and personal property (although 5th amendment does not differentiate)