Property Outline I. The Right to Exclude and the Right of Access a. Trespass and Public Accommodations Law i.

Introduction Basic right of property owner is to control resources they own key to this is the right to exclude non-owners from their property This right is not absolute Law presumes that possessors have rights of owners (simpler) Often thought of as most treasured in owners bundle of rights Protects interests in exclusive possession and quiet enjoyment Human values, social efficiency Exclusionary power limited by others rights of access Possession is about exclusion and use ii. Excluding/Admitting People 1. Private Property (closed to the public) W/ exception, owners/possessors of private property have legal right to exclude others from that property License: permission to enter property possessed by another; generally revocable at will. Trespass: unprivileged physical invasion of property possessed by another Intent: as long as voluntary act Intrusion: occurs at moment nonowner enters the property (person or object) Remedies: Damages 1. Nominal: no proof of harm required 2. Compensatory: if caused harm to the property 3. Punitive: punish/deter outrageous/malicious behavior 4. Permanent: if permanent damage diminution value Injunction ordering wrongdoer to cease conduct Ejectment: remove trespasser from land Declaratory Judgment stating legal rights against other party (State v. Shack) Trespass is also a criminal wrong 2. Shared Use or Possession When an owner has allowed others to enter her property/agreed to transfer possession to another, special rules may apply 3. Public Accommodations (open to public) Places that are open to the public and hold themselves out as ready to serve members of the public for specific purposes Duty to serve has historically always been placed on common carriers and inns Many state and federal statutes have expanded to include virtually any facility that is open to, and offers goods or services to, the public Retail Stores: Statutes dont actually say have the right to discriminate, they just failed to regulate against it.

iii. Common Law Limits on the Right to Exclude 1. Consent Entry onto property possessed by another is privileged if it is consensual or permissive Explicit (dinner invitation) & implicit consent (store open to public) Food Lion v. Capital Cities/ABC (Consent gained by fraud is still valid, no trespass on initial entry, subsequent entry trespass b/c exceeded scope of permission by videotaping) Desnick v. ABC (Consent may be legally effective even if obtained by fraud depending on specific interests owners have in excluding others (ex: homeowner would be no consent, restaurant would be consent), no trespass b/c no invasion of privacy or disruption of office activities.) 2. Estoppel Permission or acquiescence and subsequent reliance cannot be revoked if would be unjust under the circumstances Doctrine of estoppel may convert temporary license into permanent easement by estoppel 3. Necessity Within limits may enter property possessed by another to save lives/property or avert serious harm Must show: 1) chose lesser evil (trespass); 2) acted to prevent imminent harm, 3) reasonably anticipated conduct would help; 4) had no legal alternatives to violating law May still be responsible for damage to property even if no trespass b/c of necessity Any port in the storm (still responsible for harm) Vincent v. Lake Erie 4. Public Policy/Social Need Catch-all category b/c public policy overrides private interests in exclusive possession Intrusions are privileged if: 1) Public authority, 2) Possessory rights of occupants, 3) Retained public rights, or 4) Cases significant, justifiable social need State v. Shack (106, T39) (Authorized access to migrant farm workers by lawyers and doctors providing services funded by fed. gov.) Could potentially make this argument for Desnick 5. Custom Girlfriend moving into apartment 6. Prescription See adverse possession, prescriptive easements 7. Beach Access and the Public Trust Matthews v. Bay Head Improvement Association Public Trust doctrine: lands submerged beneath navigable waters (including tidal wet sand) are held by the government in trust for the publics benefit (Common law)

Exclusion must be reasonable, access must not be great enough to constitute takings Public interest in access outweighed private interest in exclusion when no other public beaches available and demand for access was very high Dedication: gift of real property from private owner to public (offer and acceptance) o Generally unequivocal offer required, although longstanding acquiescence to use by the public may be interpreted as implied dedication (Failure to exclude) Prescription: public may acquire rights of particular use of private land if use is relevant under state statute of limitations Easement: permanent right to do something on anothers land (prescriptive easement: continuous uninterrupted use in satisfaction of statutory requirements of adverse possession) Custom: longstanding, uninterrupted, peaceable, reasonable, uniform use by public confers a right of access o Uninterrupted not = continuous (native American retreat 40 yrs) The Right to Be Somewhere Homelessness o Pottinger v. City of Miami: public places, when to highly restricted, do not allow for homeless people to legally exist

iv. Public Accommodations Laws Common law: absolute right to exclude except for inns and common carriers Protects rights of individuals to enter establishments open to the public w/o discrimination by limiting owners exclusion rights. Majority Rule: Absolute right to exclude amusement places consistent with federal regulation Uston v. Resorts Intl Hotel Minority: Right of reasonable access (When property owners open premise to general public they have no right to exclude people.) 1. Title II Civil Rights Act 1964 ( 2000a) full and equal enjoyment of any place of public accommodation w/o discrimination based on race, color, religion, or natl origin Defined as hotels, restaurants/ food sales place (gas stations) or places of entertainment Limited to those that affect interstate commerce (not regulate interactions b/t private persons) Remedies: injunctive relief (no damages) Majority of courts have held this list to be exclusive (meaning retail stores, etc. not covered) Contain exceptions for private clubs Are membership organizations places of public accommodation? Some states have interpreted state public accommodation laws broader than federal law, to include membership organizations Dale v. Boy Scouts of America (138, T52) (NJ Supreme Court ruled that under NJ statute (p.137) Boy Scouts were a place of public accommodation b/c invited the public to join, unselective/no cap to # of members, close ties w/gov. & other public accommodations.)

2. Civil Rights Act 1866 ( 1981-1982)

1981: All personsshall have the same rightto make and enforce contractsand to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. 1982: all citizensright to inherit, purchase, lease, sell, hold, and convey real and personal property. Applies to racial discrimination only Applies to private conduct as well as statutes passed by state legislatures Remedies: damages Burden-shifting standard: 1) prima facie, 2) assert legitimate, nondiscriminatory basis for conduct, 3) must prove s reasons pretextual. Is this a public accommodations law? Some courts have ruled that even if couldnt bring under 2000a, could file civil rights claim under 1981 covers establishments not covered by 1964 act Ex: if retail store excludes customer on basis of race, then refusing to contract with violation 1981 Would probably not apply to pre/post-contract conduct (e.g. following around store, racial insults, etc.) Supreme Court has never dealt w/ this issue Right to purchase trumps owners right to exclude

3. Americans w/ Disabilities Act of 1990 ( 12102 12213)

Added prohibitions against discrimination on the basis of disability in employment and public accommodations (housing already covered by FHA) Requires new building to provide access, renovations to old buildings must improve accessibility; unless structurally impractical or financially unreasonable Remedies: injunctive relief (no damages) Very broad definition of public accommodation (includes almost any entity offering goods/services to the public.) Reasonable modifications, architectural barriers Enumerated list: didnt say including but not limited to 4. State Laws Most states have anti-discrimination laws which include broader definitions of places of public accommodation and/or include sex, marital status, age, familial status, or sexual orientation in list of characteristics prohibited to discriminate against. v. Free Speech Rights of Access to Private Property 1. US Constitution Core element of free speech is right to speak in public places includes right to pass out leaflets in public (subject to reasonable restrictions).

II.

Marsh v. Alabama (Company town cannot exclude persons from passing out leaflets on sidewalks of town. When private interest performs customary government functions could no deny 1st Amend. free speech.) Lloyd Corp v. Tanner (Shopping center is not the equivalent of a public square and is not required to allow leafleting on its premises.) (dissent: the more an owner opens up his property for public use, the more his rights are circumscribed by statutory and constitutional rights of those who use it. Followed by NJ, CA) 2. State Constitutions Most states follow Lloyd Corp. in interpretation of state constitutional free speech clauses (No free speech rights to shopping center) Some reserve rights of access to solicit signatures for ballot measures, potential candidates Some states (NJ and CA) interpret free speech right of access to shopping centers NJ Coalition Against War in the Middle East v. JMB Realty (Standard for when private property triggers constitutional obligations: 1) use, 2) extent/nature of publics invitation to use, 3) purpose of expressional activity in relation to both public/private use.) Relationships Among Neighbors a. Nuisance i. Intro Conflict b/t one owners free use of her property and neighbors interest in maintaining secure enjoyment of her property (rights of freedom to action v. security) Right to use property limited by effect those uses have on others property rights are contingent on context in which they are exercised Nuisance: non-trespassory interferences with property rights (i.e. uses of own property that negatively affect use or enjoyment of neighboring property.) ii. Private Nuisance 1. Test Substantial and unreasonable interference with the use or enjoyment of land. Restatement: gravity of harm outweighs utility of conduct May be brought by anyone with an interest in the land (owner, possessor, lesser, owner of easement, etc.) Prior Use/Appropriation: Grants right to commit the harmful activity to the person who first established her use. Reasonableness Test: authorizes to engage in the harmful activity if it is deemed to be reasonable but not if the conduct and/or the harm caused by it is deemed to be unreasonable. Extent of harm to & social utility of s activity Social benefits of s activity Overall relative social costs and benefits Availability of alternative means to mitigate/avoid harm s motive

Which use was established first (sometimes greater protection for prior use) Page County Appliance Center v. Honeywell (308) (Court uses normal persons in a particular locality to measure the existence of a nuisance (to determine what is unreasonable). (TV store was there first) A lawful activity is a nuisance where it unreasonably interferes with anothers enjoyment of property 2. Remedies i. No relief entitles to continue harm w/o liability to (privilege) ii. Injunction grants rights to protection from harm (veto) iii. Damages collects damages for harm already done (doesnt force to stop): gets either cost of restoration or diminution in value. iv. Purchased Injunction court issues a conditional injunction ordering activity stopped on the condition that reimburse for the opportunity loss by ceasing the activity. 3. Types of Nuisances Extremely varied: odors, air pollution, gas leaks, water pollution, chemical pollution, excessive light, noise, and damage caused by encroaching tress Some courts have upheld nuisance claims against landlords who have allowed their property to be used by drug dealers Much harder to prevail if came to the nuisance Fancher v. Fagella Trees roots damaging neighbors property Massachusetts Rule Remedy is limited to self-help for encroaching trees (cut at point of invasion) Virginia Rule: if not noxious, no right to self help. If noxious- trespass- self help Second Restatement of Torts: only duty to maintain encroaching artificial vegetation, not natural vegetation Hawaii Rule (Adopted): living trees/plants not ordinarily nuisances, can become so when they cause actual or there is imminent danger of harm to property of another iii. Water Rights 1. Diffuse Surface Water (Flooding) Natural flow/civil law rule: strict liability for harm caused from interfering with the natural flow Common Enemy: possessor of land has unlimited and unrestricted legal right to expel water from his land (no liability) Reasonable Use: Allows reasonable discharge w/o allowing substantial harm to be committed Now majority rule (minority retain modified common enemy rule) Armstrong v. Francis Corp (Under the reasonable use doctrine, an owner may make only reasonable changes in the natural drainage pattern of surface water. Changes NJ from a common enemy state to a reasonable use standard.) 2. Streams and Lakes Riparian owner: anyone who owns property against a river Most states use reasonable use test and limit rights to riparian owners

Minority use prior appropriation test (especially in west) some used natural flow (prohibits interfering w/ natural flow/force of stream) 3. Groundwater Free Use Doctrine/Absolute Ownership: Each owner is allowed to withdraw as much water as they like from beneath the surface of his property, w/o liability, even if it has the effect of withdrawing water from beneath his neighbors property (Acton v. Blundell) (Eastern states) American reasonable use doctrine Has to be put to reasonable use, has be used on that land (majority); some states allow off tract uses that dont harm others on tract uses Restatement 2d Liability for withdrawal that unreasonably harm other surface owners or exceed other surface owners reasonable share of groundwater (reasonableness- interest of all owners, and society) Correlative Rights test: Allowing each owner to withdraw a specified portion of the groundwater, perhaps in proportion to what percentage of the aquifer underlies each property. Prior appropriation: first to use iv. Support Rights 1. Lateral Support Negative easement of lateral support for land: owners have the legal right to have their land supported laterally by their neighbors land. Any removal of support is a violation of the property rights of the affected owner dont need negligence b/c obligation is absolute But no duty to support structures on neighboring land though duty not to negligently remove support from neighbors structures Structures: liable unless structure alters natural conditions Noone v. Price ( has duty to maintain retaining wall at back of her property which is providing lateral support for neighbors land. Duty to support wall runs with the land.) 2. Subjacent Support Surface owners have absolute right to subjacent support for their land (support for surface). Friendswood Development v. Smith-Southwest Industries (This case followed the absolute ownership rule for groundwater. Court ruled that a landowner has an absolute interest in whatever water he can draw to the surface from his own property, even if the subsurface water is on someone elses property and he is not liable for subsequent damage to other property.) (Court also says from now own will apply negligence test when withdrawing water, but wont do it retroactively.) v. Light and Air Fontainebleau Hotel v. Forty-five Twenty-five (317) (Owners have no easement for light and air, neighbor is free to build hotel which will block light and air access to neighboring hotel and harm its business.) No easement for light and air Sole exception: Spite fence

Prah v. Maretti (WI court applied nuisance law and remanded to determine whether s building home caused unreasonable substantial damage to s property interest in access to sunlight for solar power.) Coase Theorem Does not matter where courts lay the right, the market will allocate anyway. Value of right to interfere vs. value of right to be free from interference Assumes low or no transaction costs (information, negotiations, enforcing)

b. Adverse Possession i. Intro When one possesses anothers property in a manner that is exlsuive, visible, continuous, and without the owners permission for a period defined by state statute, the rules in force transfer title from the title holder (the true or record owner) to the adverse possessor. Magically transforms possessors into owners and prevents true owners from bringing suit for ejectment Protects justified expectations created by long-standing possession Burden of Proof is clear and convincing ii. Elements 1. Actual Possession: possessor must physically occupy the premises in some manner Ordinary use to which the land is capable and such as an owner would make of it. (can be shown by enclosure) If have color of title, can acquire possession of entire property described by deed even if only physically possess one part. Some states require improvements Some states enclosure 2. Open and Notorious: so visible that a reasonable owner would/should have known about it 3. Exclusive: use is of a type that would be expected of a titleholder and possession cannot be shared with the true holder. 4. Continuous: possession must continue w/o significant disruption Seasonal use: must exercise control over the property in the ways customarily pursued by owners of that type of property, so depends on character of property Tacking: succeeding periods of possession by different persons may be added together most states require successors to be in privity with previous possessors (meaning transferred/purported to transfer title of the property to the successor). 5. Adverse or Hostile: must treat property as own and use without the record owners permission (usually objective test based on possession, state of mind is irrelevant, lack or legal possession Claim of Right) Some states require subjective tests: a) Intentional dispossession (must show intention to oust true owner) Vast majority reject test b/c rewards wrongdoing b) Good faith only innocent possessors who mistakenly occupy property owned by someone else- in some states reduces statutory length of time 6. For the Statutory Period: periods vary widely from state to state Disability statutes: true owners incompetence extends statute of

limitations in some states o Below age of majority, incarceration, insanity o Point of AP is to punish sleeping owner, incompetent owner not afforded opportunity to protect rights

7. Under Color of Title: When a written conveyance appears to pass titled

but does not do so, either from want of title in the person making it, or the defective mode of conveyance. (Some states require this) If have color of title can sometime shorten statutory period iii. Justifications for Adverse Possession Clarifies title Settles disputes and allows further transactions to take place (less uncertainty) Protection of justified expectations Reliance interests of possessor from long-standing ownership of the property Personal v. fungible interests in property Encourages productivity of the land iv. Typical Cases 1. Color of Title Romero v. Garcia (206) (Person claiming adverse possession on land described in an invalid deed. A deed will not be void for want of a proper description if w/ the deed and extrinsic evidence, a surveyor can ascertain the boundaries of the land intended to be conveyed.) 2. Border Disputes Brown v. Gobble (199) (Dispute b/t neighbors over who owned twofoot tract b/t properties. Tacking permits adding together the time period that successive adverse possessors claim property. If include years of adverse possession by previous owners, is entitled to land by adverse possession.) brought suit for quiet title: asks court for declaratory judgment that adverse possessor has become owner of disputed property through adverse possession. 3. Squatters Nome 2000 v. Fagerstrom (208) (During statutory period couple lived on land and treated as their own. Quality and acts required for adverse possession depend on character of the land. Dont need to make significant improvements/occupy year round just must be used during statutory period way an average owner of similar property would use it.) 4. Cotenants Statute of limitations for co-owners only starts running when coowner entitled to possession is excluded from possession by ouster No adverse possession if one co-owner lives there and the other doesnt unless ouster v. Procedures and Effects of Adverse Possession 1. Level of Proof Required: clear and convincing evidence, though some courts require preponderance of the evidence 2. Effect of Prior Encumbrances: adverse possessors generally obtain rights subject to pre-existing liens, easements, restrictive covenants and

mineral interests. vi. Claims Against the Government Generally adverse possession claims cannot prevail against government property (though some states have abolished this immunity, other states say can as long as land not held for public use, is dedicated to commercial purposes, or otherwise not open to the public.) vii. Informal Transfers of Title to Settle Boundary Disputes 1. Improving Trespasser If someone builds a structure that intrudes onto neighbors property sometimes court will order removal or forced sale Relative Hardship: if you (innocently) build something on a neighbors property and spend only a little, may make you tear it down, but if spend a lot, court may either order forced sale of the land, or make the owner compensate you for the improvements Doesnt apply to bad faith improvements Rationale: true owner has duty to police own property, if just get to keep it its unjust enrichment Sommerville v. Jacobs (244) (When a person in good faith mistakenly improves the property of another, that person is entitled to the value of the improvements in order to prevent unjust enrichment.) 2. Dedication Transfer of real property from a private owner to a government entity (such as a city). Offer by owner, acceptance by city May fine implied offer by long-term invitation to public to use land, implied acceptance by long and substantial public use 3. Oral Agreement Courts may uphold oral agreements b/t neighbors that set boundary b/t their property it: 1) both uncertain where boundaries lay/genuine dispute over boundaries; 2) parties can prove existence of agreement; 3) parties take/relinquish possession to agree line. 4. Acquiescence In absence oral agreement, may recognize long-standing acquiescence by both neighbors to common boundary. 1) Adjoining owners, 2) who occupy respective tracts up to clear and certain line, 3) which mutually recognize, 4) for a period of time (statutory). 5. Laches: unexcused or unexplained delay in commencing an action and corresponding change in material condition which results in prejudice (investing in reliance) 6. Riparian Owners: Accretion and Avulsion i. Accretion: change in border caused by slow buildup of land (deposit)- changes belong to owner whos borders are enlarged, erosion shrinks legal borders ii. Avulsion: sudden changes to border (earthquake/flood) generally not recognized 7. Estoppel When 1) one owner erroneously represents to another that the

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boundary b/t them is located along a certain line and 2) the second owner, in reliance on representations, builds improvements which encroach true boundary Can be inferred from silence in some states c. License and Easements i. Introduction Servitude: legal device that creates a right or obligation that runs with the land aor with an interest in land Runs with the land: passes automatically to successive owners or occupiers of the land/interest Affirmative easement: right to do specific acts on land owned by someone else which are usually intended to be permanent Negative easement/Restrictive covenant: Agreement not to do something on your own land. Affirmative covenant: Duty to do something on your own land for the benefit of others Dominant Estate: parcel benefited by the easement Servient Estate: parcel over which the easement passes Restatement collapsed equitable servitudes and real covenants ii. Licenses (362) Permission that is informal and generally revocable at will by the owner of the land Not classified as servitudes Not transferable, cannot be inherited/devised by will Entry becomes trespass only when the licensee refuses to leave after being asked to do so Not revocable when: If licensee invests substantially in reasonable reliance on license may be granted easement by estoppel If interpreted to be leases/covenants rather than licenses If against public accommodations law b/c reasons for revocation are discriminatory iii. Implied Easements Created by law 1. Easement by Estoppel Created when 1) an owner gives someone else permission to use her property in a particular way and the 2) licensee invests substantially in reasonable reliance on that permission, and 3) revocation of the license would work an injustice Effectively converts a revocable license into an irrevocable easement. Generally intended to protect the reliance interests of the grantor Holbrook v. Taylor (If give permission to go over your property to get to their property and they make a substantial investment in reliance on this license.) 2. Constructive Trust Trust: A property arrangement in which an owner, called the settlor, transfers property to another person (trustee) with instructions to manage the property for the benefit of a third party (beneficiary)

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Constructive trust: created by law when courts treat a property arrangement as if the grantor had created a trust arrangement, regardless of the grantors intent Generally applied to prevent unjust enrichment of the legal holder, and may apply in same/similar circumstances as easement by estoppel Some courts limit to relationships b/t family members of others having confidential/fiduciary relationship Rase v. Castle Mountain Ranch (A constructive trust will be given to a party when there has been a breach of confidence that will wrongfully deprive the party of its rights and unjustly enrich the legal holder. Constructive trust only established for length of period required to protect the reliance interest.) Statute of frauds has explicit exceptions for trusts Formal title v. informal expectations 3. Implied from Prior Use (Quasi-easements) Implied easements are recognized in particular kinds of relationships despite the absence of express contract to create an easement Effectuates intent of parties that was never written down. Will find an easement implied by prior use if: i. Two parcels were at one time in common ownership ii. One of the parcels had derived a benefit or advantage from the other parcel prior to the sale iii. This use was both apparent and continuous (obvious and notice) iv. Continuation of the use is reasonably necessary or convenient to continued enjoyment for the dominant estate ii. Easement by express grant: easement over grantors land in writing (statute of frauds) may be subject to marketable title act iii. Easement by reservation: Grantor claims intended to reserve an easement over land conveyed to grantee. a. More likely to find easement for grantee (buyer) than grantor (seller/original owner) b/c if grantor expects to retain rights should do so explicitly, otherwise could be unfair surprise for grantee iv. Granite Properties v. Manns (Easement must be highly convenient rather than necessary.) iv. Necessity May be granted to an owner of a landlocked parcel over remaining lands of the grantor to obtain access to the parcel. Effectuate intent of parties Promote the efficient utilization of property Finn v. Williams (384) (Where an owner of a land conveys a landlocked parcel, a way by necessity exists over the remaining lands of the grantor.) Suggests that ultimate goal is promoting the development of property by preventing property from becoming landlocked and taken out of the market

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(suggests that applies regardless of parties intent.) Restatements disagrees: ultimate purpose is to effectuate intent of grantor no easement if it is clear the grantor intended to sell, and grantee knew she was buying, a landlocked parcel. v. Prescriptive Easements (232) Elements: (same as adverse possession, except use not possession) i. Use of property belonging to another ii. Open and notorious iii. Continuous iv. Statutory period v. Adverse use is presumptively non-permissive vi. Some states require acquiescence (true owner had to have know about crossing, known not permissive) Generally dont require exclusivity because easements generally coexist with the neighbor using their land Run with the land; generally binding on subsequent owners of servient estate Community Feed Store v. Northeastern (232, T205) (Presumption that use of anothers property for a driveway was non-permissive.) Negative easements may not be acquired by prescription (US rejects English doctrine of ancient lights.) you didnt do it for so long, that you cant now vi. Express Easements Created by agreements of the parties 1. Formal Requirements to Create (A) Writing Must be in writing to be enforceable under statute of frauds Created by dead: named grantor recites that she grants an easement of a certain description to a named grantee Treated as a grant of interest in real property (can buy and sell easements) (B) Rule Against Reserving and Easement in a 3rd Party Traditional rule: O cannot sell a land to A while reserving an easement for B (get around it by 2 conveyances) Many courts have abandoned this rule (including R3rd) 2. Substantive Limitations (A) Limits on Negative Easements Courts traditionally limited to four types of negative easements: lateral support for a structure, light, air, and flow of an artificial stream o This is b/c difficult to observe their existence buyers of servient estate may not be on notice Today, usually circumvent by creating restrictive covenant instead R3rd would abolish difference b/t the two (B) No Affirmative Easements to Act on Ones Own Land Traditional law did not allow creation of an affirmative duty to do something on someones own land for the benefit of other owners

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 Created affirmative covenants to get around this 3. Running with the Land (Appurtenant v. In Gross) Runs w/ the land if: i. Easement is in writing Easement must be in chain of title Must be in original writing, but not need to be included in subsequent deeds ii. Original grantor intended it to run w/ the land Intent may be stated or implied, if ambiguity generally assum intent iii. Subsequent owners of servient estate are on notice of the easement at time of purchase Actual notice: Subsequent owners actually in fact know about the easement Inquiry notice: reasonable buyer would do further investigation to discover whether easement exists (visible) Constructive notice: should have known owners are bound by easements they would have discovered if theyd done a normal title search Easements created by estoppel, implication, and necessity run with the land if they are intended to do so and are reasonably necessary for enjoyment of the dominant estate. Appurtenant: easements that are intended to run w/ the land such that the benefit of the easement will pass to any future owner of the dominant estate. In Gross: easements not intended to be attached to the ownership of particular parcels of land; belongs personally to the grantee not in connection w/ ownership of the land (when no dominant estate; ex: rights to place utility lines or sewer pipes over/under land belonging to someone else). Whether appurtenant or in gross determined by intent of grantor o When ambiguous, presumption in favor of appurtenant b/c traditionally thought to limit easements to neighboring owners o Use language and surrounding circumstances when ambiguous o If commercially useful apart from ownership of nearby land assumption that in gross or if nature of easement suggests that intended to benefit a particular person Green v. Lupo (Ambiguous easement interpreted to run w/ the land. Intent of is the primary test, determined from the language.) 4. Scope, Location and Extension of Appurtenant Easements Cox v. Glenbrook Co. (400) (Appurtenant easements benefit the entire dominant estate and so will be apportionable among subsequent owners when the dominant estate is divided.) Many courts resolve ambiguities in favor of grantee: easement owner is entitled to full enjoyment of the easement. Whether use is of kind contemplated by the grantor? (Whatever rights grantor does not give away he retains)

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Whether use imposes unreasonable burden on servient estate not contemplated by grantor (can still exceed easement if engaged in activity clearly allowed by easement) Whether easement can be subdivided? Nonexclusive: grantor has reserved for herself the right to use the easement in conjunction w/ the grantee generally not apportionable in gross, but transferable Exclusive: grantor has the no right to use the easement in conjunction w/ the grantee generally held to be apportionable R3rd: easements in gross can be divided unless this is contrary to the intent of the parties who created the easement, or unless the division unreasonably increases the burden on the servient estate. Traditionally the owner of the servient estate must obtain the consent of the easement holder to relocate it. 5. Scope and Apportionment of Easements in Gross Likely to allow owners of utility easements to extend their uses to other utilities (Henley v. Continental Cablevision p. 406: Easements held in gross were exclusive and therefore apportionable; owner of an exclusive easement may license 3rd parties to use its right of way for use consistent with principal use granted.) vii. Terminating Easements Easements last forever until they are terminated by: Agreement in writing (release) By own terms (ex: time limit in original deed) By merger, when servient and dominant estates held by single owner By abandonment, when owner of easement, by her conduct, clearly indicated intent to abandon easement (mere nonuse will not constitute abandonment) By adverse possession or prescription by owner of servient estate or by third party Sometime courts will terminate for frustration of purpose: purpose is not longer possible to accomplish Marketable title acts: may require easements to be re-recorded periodically d. Covenants i. Intro When owners may want to control the use of neighboring land Contractual regulations of land uses If future owners of the servient estate are bound by restrictions then burden of restriction runs w/ the land If future owners of dominant estate are allowed to enforce restrictions then benefit of restrictions runs w/ the land When issues arise b/t original contracting parties then follow laws of K, otherwise follow law of real covenants and servitudes Increasingly common for developer to give homeowners association power to sue to enforce covenants Restrictive/Negative covenants: prohibit certain land uses (ex:

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Privity (relationship between contracting parties) Horizontal - Between original contracting parties Mutual - simultaneous interest in same parcel (ex. Easement) Instantaneous - created at time of conveyance (can be created through a straw transfer) Vertical - Between subsequent owners Strict - grantor has no interest left in property (ex. Conveyance) Relaxed - grantor retains interest in property (ex. Lease) a. Horizontal: relationship b/t original coventing parties i. Mutual Privity: when two owners have

parcel limited to single family homes) o Under R3rd same as negative easement Affirmative covenant: obligate owners to perform certain acts for the benefit of their neighbors (ex: pay fee to homeowners association) o Courts tend to be more wary of imposing affirmative covenants Real Covenant: allow for damages (writing, intent, notice, touches and concerns the land, privity) Equitable Servitudes: injunctive relief (intent, notice , touches and concerns the land) ii. Formal Requirements to run with the land 1. Writing: must be in writing to be enforceable against subsequent owners o Oral representations: often representations made in sales literature by developers is not recorded in deeds or declaration many courts will enforce anyway if buyer shows that relied on representations under doctrine of estoppel 2. Notice: notice is traditionally required for equitable servitude but not for real covenants (see easements: actual, inquiry, and constructive notice) 3. Intent to Run: covenants intent is present in the writing (to heirs and assigns, appurtenant to the land) 4. Privity of Estate

simultaneous interest in the same parcel of land (e.g. landlord tenant) or when an owner of one parcel has an appurtenant easement over another owners parcel ii. Instantaneous Privity: covenant intended to burden one parcel for the benefit of another can become attached to both parcels if it is created at the moment the owner of one parcels sells the other parcel (e.g. covenant contained in deed of sale) iii. Can create horizontal privity where didnt previously exist by selling all parcels to lawyer who sells them all back to the owners with the covenants in the new deed (straw person) b. Vertical: relationship b/t original coventing parties and subsequent owners of each parcel

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Strict vertical privity: technical requirement that grantor not retain any future interest in the land. iii. Substantive Requirements 1. Touch and Concern: A covenant meets this test if it has something to do with and/or is connected w/ the enjoyment of the land. Obligation and/or benefit is the kind that should run with the land, binding and benefiting future owners Burden: touches and concerns burdened estate if it relates to the use of the land and obligation is intended to benefit current and future owners of the dominant estate Benefit: obligation touches and concerns the dominant estate if it improves enjoyment of that land or increases its market value Whitinsville Plaza v. Kotseas (416) (Reasonable covenants to compete may be considered to touch the land when the serve the purpose of facilitating orderly and harmonious development for commercial use. They are enforceable by and against successors the original parties.) Today, covenants to pay money (ex. homeowners dues) are generally enforceable, esp. if increase property values (fees for maintenance of common areas) Many states (CA) are moving away from touch and concern to reasonableness requirement strong presumption that enforceable unless violate public policy Restatement 3D: Reasonableness test

i.

Writing Intent Touch and Concern Notice Horizonta l Privity Vertical Privity

RoP3d

Burden to run Traditiona Equitable l Servitudes

RoP3d

Benefit to Run Traditiona Equitable l Servitudes

N/A Relaxed Strict

N/A Relaxed Strict

iv. Implied Reciprocal Negative Servitudes In absence of privity courts used third party beneficiary rules to allow enforcement of covenants when sold as part of development/scheme by earlier buyers on later buyers Early buyers were intended beneficiaries of covenants made by later buyers if all their lots were part of a common plan or scheme of development with all lots in the plan obligated to comply w/ the uniform plan of restrictions for the benefit of all other owners. Imposes restrictions on owners who had no covenants in their chain of title if

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developer had created common plan and would be unjust to other owners not to enforce Many states now require developers to file declaration prior to selling individual lots which makes the servitudes reciprocal Grantee covenant: buyers implicitly agree to covenants in declaration Grantor covenant: developer promising to include restrictions in all future lots sold General plan can be shown by a variety of factors: presence of restrictions in all/most deeds in area previously owned by common grantor, record plat (map) showing restrictions, presences of restrictions in last deed, etc. Evidence that no plan: some deeds unrestricted and restrictions nonuniform R3rd: restrictions in deeds to benefit other property will be mutually enforceable if purchaser had notice at time of purchase (gets rid of mutual privity) Evans v. Pollock (443) (T268) (For the doctrine of implied reciprocal negative easements to apply, a development scheme may impose restrictions on only similarly situated lots.) Unrestricted lots: most courts hold that buyers of unrestricted lots are on constructive notice of covenants in recorded deeds to nearby property granted by a common grantor. (Sanborn v. McLean p.447) CA: Riley v. Bear Creek Planning Committee (450, T269) (A restriction that is not recorded at the time of purchase will not be enforceable against the purchaser, even if the purchaser orally promised to be bound by the restrictions.) importance of parol evidence and statute of frauds v. Remedies (T270) Traditionally real covenants are enforced by damages and equitable servitudes are enforced by injunctions Today, both are generally enforceable by either damages or injunctions, however the court may see fit Granting of injunctions is discretionary may be denied if overly burdensome or if person seeking injunction has acted unfairly vi. Interpretation of Ambiguous Covenants Traditionally interpreted in way that is least burdensome to the free use of land Restatement 3d: restrictions can promote stability, lifts presumption against future interests and looks at intent Blevins v. Barry-Lawrence County Association for Retarded Citizens Ambiguity in restrictive covenants to be read narrowly in favor of free use of property Public policy- restrictions of free use are disfavored, security and reliance Intent of grantor- express language and extrinsic evidence where ambiguous Covenant contrary to public policy-unenforceable (disabled persons) Restatement 3d: reliance the covenant > free use of property vii. Public Policy Limitations Covenants are void if they violate public policy 1. Racial Restrictions

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Racially restrictive covenant limits sale, lease, or occupancy of real property to members of a particular race or excludes members of a particular race or races Shelley v. Kramer (1948)(493, T281) (If a covenant is racially discriminatory, judicial enforcement would constitute state action and thus be violation of the 14th Amendment.) Evans v. Abney (Senator willed property to city for use as park restricted to white. Court ruled that when the charitable intent of a testator cannot be carried out, the charitable trust will fail and revert to the grantor or his heirs.) (Dissent: Should have used cy pres doctrine to alter terms of will.) Today Shelley situation would be violation of FHA, Civil Rights Act, multiple other statutes 2. Unreasonable Restraints on Alienation Types of restraints: Disabling: directly forbids owner from transferring interest in property Promissory: covenant where grantee promises not to alienate his interest in the property Forfeiture: future interest that will vest if owner attempts to transfer her interest in the property In common law strong presumption that property owners should be able to transfer their interests Traditionally determined the validity of restraints by reference to type of property at issue (ex. Restraints on alienation for interests held in fee simple void b/c repugnant to fee) Applies to restraint on transfer not on use Restraints on alienation are generally upheld if holder of property interest is a charity. Today restraints on alienation are subject to reasonableness test Determining when restraints on alienation are and are not reasonable is a core task of property law Alienability: efficiency, liberty, equality If limitations essentially give property no value they will be struck down Restraints sometimes held valid to promote interest of grantors in promoting future interests, enhancing value of units to be marketed, promote interests of neighbors In a spendthrift trust- reasonable restraints on alienation can be valid, so long as there is a beneficial use being derived (in line with the grantors intent) i. Direct restraints on transfer Horse Pond Fish & Game Club v. Cormier (512) (Restraints on alienation are void only if theyre unreasonable.) (100% vote requirement was not unreasonable, club could be dissolved) ii. Servitudes requiring the consent of either the grantor or the association to transfer the property (grantor consent clause)

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Northwest Real Estate v. Serio (515) (When title of land is given in fee simple, the grantor cannot restrict the grantee from selling the land to third parties.) Riste v. Eastern Washington Bible Camp (516) (When grantor transfers land in fee simple to the grantee, the grantor cannot prohibit the grantee from conveying land to another. Any clause in the deed that gives the grantor the right to approve subsequent purchasers will be void.) iii. Right of first refusal (pre-emptive right) Wolinsky v. Kadison (521) (A condo assoc.s officers and board members must exercise its right of refusal in a reasonable manner.)

Leasing Restrictions Breene v. Plaza Towers Assoc. (530) (A restriction adopted after the purchase of a condo unit will not be enforceable against the purchaser unless he/she agrees to the additional provision.) Courts ordinarily uphold limitations on the transfer of leaseholds v. Restraints designed to keep housing affordable To ensure housing is available for low-income families it is often subject to restraints on alienation that prohibit leasing the property or sale to a family that is not low-income The greater the restraint, the strong the justification must be to support it Generally supported b/c in line w/ public policy 3. Unreasonable Restraints on Competition Prohibited by common law, state & federal anti-trust laws Rule of Reason: examine circumstances and determine whether operation of covenant actually effectuates unreasonable restraint on competition Common law: enforceable only if reasonably limited in time and space and consonant with public interest 4. Public Policy Usually only invalidate land use restrictions if contravene specific, strong public policies Davidson Bros v. D. Katz & Sons (Review for reasonableness: Covenant that prohibited use of downtown property as a supermarket was unreasonable and contrary to public policy.) OBuck v. Cottonwood Village Condo Assoc. (Rules promulgated by condo boards and by-laws are subject to a reasonableness standard.) Covenants are void if the unreasonably burden fundamental constitutional rights viii. Modifying or Terminating Covenants 1. Changed Conditions Covenants will not be enforced if conditions have changed so drastically inside the neighborhood restricted by covenants that enforcement will be of no substantial benefit to the dominant

iv.

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estates. R3rd 564 (471), El Di v. Town of Bethany Beach (467). Relief is only granted if the purpose of the servitude can no longer be accomplished (high test) Alternative: allow the violation of the covenant to occur only upon payment of damages to the owners of the dominant estates to compensate for the breach Doesnt usually apply in cases of servitudes intended to immunize property from change (ex. Conservation) 2. Relative Hardship Focus on servient estate Covenant will not be enforced if the harm caused by the enforcement (hardship to owner of servient estate) will be greater by a considerable magnitude than the benefit to the owner of the dominant estate If benefit to dominant is substantial courts unlikely to apply the doctrine even if the burden is substantial 3. Conduct of the Parties i. Acquiescence: tolerated previous violations of the covenant by the owner of the servient estate ii. Abandonment: tolerated violations by owners of other restricted parcels iii. Unclean hands: has violated covenant himself iv. Estoppel: owner of dominant estate orally represents to owner of servient estate that she will not enforce the covenant and servient owners changes his position in reliance v. Laches: covenant has been ignored or breached for substantial period of time vi. Marketable titles acts: some states have these acts which terminate covenants if they are not periodically re-recorded vii. Language in instrument: may have self-imposed expiration date viii. Merger: burdened & benefited estates come under common ownership ix. Release: all parties may agree in writing to terminate x. Prescription: open and notorious violation of the covenant w/o permission for statutory period 4. Statutory Regulation Marketable title acts Time limits on enforceability of covenants Statutory changed conditions (Blakely v. Gorin) (Ritz-Carlton) (declaration that existing covenant was obsolete) (restrictions will not be enforced if impedes reasonable use, even if they confer substantial benefits, $ instead of injunction) ix. Regulation of Covenants and Homeowners Associations Increasingly common for developers to create homeowners association that is empowered to enforce the covenants or restrictions, usually by bringing lawsuits to compel compliance Created by declaration filed by developer prior to sale of first lot Only owners generally have voting rights (no family members/tenants)

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III.

generally allocated by reference to property interests May collect dues/fees for maintenance common areas, after empowered to regulate appearance/use individual lots or units Condos: each unit owned in fee simple by particular person/entity Together referred to as common-interest communities Cooperative: entire building owned by single non-profit cooperative corporation, financed by single mortgage to corp. If one fails to pay rent, the rest must make up the difference B/c financial interdependence, often have power to approve/veto sales of units Appel v. Presley Companies (Provisions allowing for the amendment of restrictive covenants will be allowed, as long as the amendments are reasonable so as not to destroy the general plan or scheme of the development.) Common Ownership a. Present Estates and Future Interests i. Intro Estates: Limited set of allowable packages of ownership interests traditionally all property interests had to fit one of these Originated during feudal system intended to create a system that consolidates ownership rights in individuals who are relatively free to use their land as they please Policies: 1) Promote widespread ownership of property, 2) Protect autonomy of owners to use their land as they please Traditional Rule: presumption of least restrictive use Some states: still presumption against future interests ii. Fee Simple (fee simple absolute) O to A O to A and her heirs Property interest w/o an associated future interest Largest possible aggregate of rights, privileges, powers and immunities w/ respect to land that exists full ownership of land Owners have present right to possess and use property Right to sell it or give it away Right to devise it by will or leave to heirs (inheritable) Conveyance is assumed to transfer all rights grantor possesses unless conveyance suggests otherwise iii. Defeasible Fees 1. Fee Simple Determinable/Possibility of Reverter O to A as long as [used for school purposes] Words traditionally used: as long as, during, while, unless Ends automatically upon happening of a state event and transfers possession back to the grantor or her heirs or devisees (automatic forfeiture) When condition occurs grantor must assert rights w/in statutory period otherwise (if grantee remains on property) present estate owner retains possession through adverse possession statute of limitations starts running as soon as condition occurs Today most states hold to be alienable, devisable and inheritable

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2. Fee Simple Subject to Condition Subsequent/ Right of Entry O to A but if [the property is ever used for anything other than school purposes], O shall have a right of entry for condition broken. Allows grantor to reclaim upon performance of condition but does not make transfer of ownership (reversion) automatic created by language condition (right of entry) Traditionally, only when owner of right of entry asserts rights does statute of limitations start running under this grantor could wait as long as wanted to assert rights Some courts apply laches (prevents someone from delaying unreasonably the assertion of a legal right if delay works to the detriment of someone else) or find right waived if not exercised in reasonable time period Some states treat the same as fee simple determinable and start statute of limitations running at time condition met/violated Traditionally not alienable (destroyed if owner attempted to transfer) but today most states generally allow transfer, conveyance, and inheritance 3. Fee Simple Subject to Executory Limitation/Executory Interest O to A, but if [the property is not used for school purposes], then to B Same as fee simple determinable except that upon satisfaction of condition the interest reverts to a third party Generally the shift in ownership is automatic Also executory interests: O to A in one year Conveyances that are to become possessory at some point in the future are considered executory interests. Fee simple subject to executory limitation in O, executory interest in A Options to purchase: right to buy property for a contractually set price Rights of first refusal and Pre-emptive rights Rights to purchase property when and if current owner decides to sell Executory interests subject to rule against perpetuities b/c creation new interest that may never vest Traditionally inalienable, but few states have kept this rule iv. Life Estates A life estate lasts for the life of the present holder Holder has no right to pass on the property when she dies Transferable (unless conveyance provides otherwise) but transferee only gets estate until original holder dies (can only transfer what you have) life estate per autre vie (life estate for the life of another) 1. Remainders and Reversions O to A for life o Reversion: life estate to A, then reversion to O or her heirs O to A for life, then to B o Remainder: life estate to A, then fee simple to B

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2. Contingent and Vested Remainders O to A for life, then to B o Vested Remainders: belong to an ascertainable person and there are no conditions precedent that must be satisfied before the remainder is to become possessory 3 kinds, see below o B is a named person, no conditions (other than death of A) must take place before Bs interest will take effect o If B dies before A, the remainder interest will pass to Bs heirs o Subject to open o Subject to divestment o Rule of convenience: class closes for kids upon death of parent O to A for life, then to B if [she graduates from law school] o Contingent remainder: belongs to an unascertained person, or there is a condition precedent that must be fulfilled before the interest becomes possessory (vest) Today, contingent remainders are generally alienable o Contingent remainder in B b/c wont ever get interest if she doesnt graduate from law school O to A for life, then to the first child of B o Contingent remainder if B had no children at time of conveyance from O to A o May never vest if B never has children O to A for life, then to B o Absolutely vested remainder b/c will not change O to A for life, then to the children of B (if B is alive and has children at time of conveyance) o Vested remainder subject to open: when a remainder is to a class that can increase (b/c living children are ascertainable but B could always have more children, so could increase.) O to A for life, then to B, but if B drops out of law school, then to C o Vested remainder subject to divestment with an executory interest in C: vested remainder can be divested by the happenings of a later event Rule of Convenience: When a remainder is given to a class that can increase in size, class is closed when any member becomes entitled to distribution or possession In practice contingent remainder and vested remainder subject to divestment may have same effect and just written two different ways o Important b/c rule of perpetuities usually applies to contingent remainders but not vested remainders subject to divestment

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3. Destructibility of Contingent Remainders Modern rule is that contingent remainders are not destroyed even after life estate ends Ex: O to A for life, then to B if she has graduated from law school Upon As death, if B hasnt graduated from law school property will revert to O (as effectively fee simple subject to executory limitation) and then spring to B if she later graduates from law school Old rule: contingent remainders were destroyed if the didnt vest before termination of preceding life estate (may still be rule in some states) 4. Doctrine of Worthier Title (576, T316) O to A for life, remainder to the heirs of O Many states will interpret at: O to A for life, remainder in O Originally created as tax avoidance scheme Today: impossible to tell who Os heirs will be until O dies and so no way to create a fee simple in Os lifetime Many states have abolished doctrine though (this seems to be the trend) v. Trusts Trust grants power to one person (trustee) with instructions (and enforceable obligations) to manage the property for the benefit of another (beneficiary) Trustee has legal title and beneficiary has equitable/beneficial title Trustees have fiduciary obligations to manage funds in interests of beneficiary vi. Interpretations of Ambiguous Conveyances (589, T318) Grantors intent Public policy Presumption against creation of future interests 1. Presumption Against Forfeitures If it is possible to interpret the language to avoid loss of the property by the current owner, the courts will generally adopt this approach i. Fee simple is preferred to a defeasible fee or life estate Wood v. Board of County Commissioners (580, T321) (precatory language) (O to A for the purposes of a hospital. Becomes O to A w/ hospital words precatory language.) Cathedral v. Garden City (582, T322) (Cannot be reconciled w/ Wood. Completely misapplies presumption against forfeiture) Edwards v. Bradley (586) (O to A, but if A alienates, then to B, C, D. Appears to be a fee simple with executory limitation (appears to be same thing as rotten husband. Cant do this b/c looks like A has a fee simple w/ restraints on alienability.) ii. Defeasible fee is preferred to a life estate iii. Fee simple subject to condition subsequent is preferred to a fee simple determinable (b/c forfeiture is not automatic w/ right of entry) iv. Fee subject to a covenant is preferred to a

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defeasible fee v. A fee w/ unenforceable precatory language (statement of purpose not intended to be legally binding) is preferred to a fee subject to a real covenant 2. Waste Life tenant is permitted to use the land for present purposes as a reasonable owner would, but is not permitted to commit waste Traditionally had duty to repair premises, pay property taxes, maintain property insurance, no power to harm property/make major alterations Modern: conduct commits waste if it damages the inheritance Ameliorative waste: future interest overrides present interest holders ability to improve on the land 3. Cy Pres When a trust established for charitable purpose that becomes impractical/impossible to achieve, courts may apply cy pres to carry out settlors intent as much as possible by authorizing trust to be used for some other charity/modify the trust First courts must determine settlors intent general charitable intent or only that very specific one? If decide inconsistent w/ intent to modify, courts must decide who the trust principal belongs to See Evans v. Abney 4. Changed Conditions Traditionally only covenants are subject to changed conditions doctrine (T326 some exceptions) vii. Regulatory Rules (594, 327) 1. Abolition of Fee Tail Fee tail was estate that kept property in family (heirs of his body) but has been abolished in majority of states most courts will convert to a fee simple 2. Restriction on New Estates Courts follow general rule against creation of new estates if a conveyance doesnt fit within any established category, it must be interpreted to create most closely analogous state Johnson v. Whiton (595, T331) (Tried to limit conveyance to heirs on fathers side. When a person tries to convey property in a way that does not conform to one of the traditional estates, the limitations on that conveyance will be invalid. Court ruled this was fee simple.) 3. Unreasonable Restraint on Alienation See above Restraints on alienation of future interests viewed as repugnant to the fee Restraints on life estates generally upheld Partial restraints on alienation sometimes upheld (limit time period restraints exist, identify limited class people to whom property cannot be transferred) Exception: restraints on alienation generally upheld when both present estate and future interests are held by charities 4. Rule Against Perpetuities Invalidates future interests unless they are certain to vest w/in

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lifetime of someone who is alive (in being) at creation of the interest, or no later than 21 years after her death Designed to prevent remoteness of vesting How to apply the rule: Determine what future interests have been created Applies: o o Executory interests Options Pre-emptive rights/right first refusal Exception: rule does not apply if both present estate and future interest holders are charities o Contingent remainders Moment of vesting is when the condition that makes it contingent disappears o Vested remainders subject to open o All 3rd party interests (except vested remainders) Exemptions o All future interests in grantor o 3rd party future interests that are vested remainders (absolutely vested, vested subject to divestment) If rule applies, determine whether the future interest is valid or invalid under the rule: Invalidate interests that are not certain to vest w/in 21 years of the death of someone alive (life in being) at the creation of the interest. o Determine if any possibility at all that will vest more than 21 yrs after death of anyone involved in the K o Perpetuities period: time b/t the creation of the interests and 21 yrs after the death of the last person alive at its creation time period w/in which interest must vest o Look for validating life: person w/in whose lifetime (or no later than 21 yrs after death) the interest is certain to vest If rule is invalid, determine what interests remain by striking out the invalid interest and seeing what is left Ex: O to A for residential purposes, then to B O to A for residential purposes Traps: Unborn widow: O to A for life, remainder to As widow for life, remainder to As surviving children o Violates rule b/c A could marry someone not alive at time of conveyance (so cant be

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validating life) As widow has remainder which is good b/c vests at As death o But she could live more than 21 years after As death, so her childrens interests may vest outside perpetuities period Fertile Octogenarian: O to A for life, remainder to As grandchildren o Assumption that A could have children even if shes 80, and that child could have children more than 21 years after As death o Remainder violates the rule and is invalid Endless Will Contest: O to A for life, then to B after As will is probated o Will contest could last for years even 21 years after everyone alive at creation of interest contingent remainder to B is void Modern Modifications Wait and See: courts will not hold that a future interest violates the rule until the perpetuities period has passed and they are certain the future interest has no vested in that period (adopted by majority of states) Cy Pres/Equitable Reform: A conveyance may violate the rule against perpetuities b/c it contains an age limit greater than 21 a court may reduce the age of contingency if it will validate future interests Statutory Limitations: some states have passed statutes that cut of interests in the grantor following defeasible fees if the condition does not occur within a stated time period after the initial conveyance. Marketable Title Acts: some states require that future interests be periodically re-recorded to remain valid and enforceable Uniform Statutory Rule Against Perpetuities: Currently adopted in half the states; would validate future interests that otherwise violate traditional rules if interest vests at any time w/in 90 years of its creation (wait and see but for 90 years) If interest violates 90 year period, courts are authorized to reform in manner that most closely approximates transferors intent and is within 90 year period Many states have abolished rule as it applies to perpetual family trusts Options to Purchase: Courts disagree whether subject to rule: Central Delaware v. Greyhound (1991, 609) (An option to purchase land is unenforceable if it can be exercised beyond the perpetuities period.) Texaco Refining v. Samowitz (1990, 613) (Option to purchase contained in a commercial lease, if option must be exercised w/in leasehold term, is valid w/o regard to o

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rule against perpetuities.) Preemptive Rights: Same as options Cambridge Co. v. East Slope (1985, 614) (When preemptive rights to not threaten the free alienability of land, the rights will no be invalid under the rule against perpetuities.) Remember: It is possible for interest to be valid under rule of perpetuities but still be invalid as unreasonable restraint on alienation

5. Racial Restrictions See Evans v. Abney B/c reverter clauses are said to operate automatically, there is no state action involved when a racially restrictive condition is violated and an automatic possibility of reverter or executory interest is triggered (once property removed to heirs discrimination would cease) 6. Public Policy Future interests may be held invalid if found to be against public policy b. Concurrent Ownership i. Ownership in Common 1. Tenancy in Common Presumption that a conveyance to 2 or more people creates tenancy in common Two or more persons own the same property at the same time Each TIC owns right to possess the entire property Ownership interests in undivided fractional shares Undivided b/c each right to possess whole property Delegation of shares does not need to be equal When TIC dies, his interest goes to his devisees or heirs Alienable 2. Joint Tenancy Right of survivorship: not inheritable or devisable and upon death immediately passes to other joint tenants in equal shares Requires express language Traditionally had to be held in equal shares (generally still the rule, though some states statutorily abolished it and others recognize contractual agreements btwn parties establishing other distributions) Four unities: time, title, interest, and possession must obtain title at the same time, through same instrument, identical interests, equal right to possess (again many states have abolished this, or people use a straw person to get around it) Common law: can convey to oneself (ex. H to H and W- invalid) Modern rule: state statutes allow for self conveyance, some require direct conveyance from 1 spouse to both as joint tenants Severed if one of the joint tenants transfers her interest during her lifetime become tenants in common Self-conveyance: can also sever by transferring interest to a

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third-party who then transfers it back Leases: Tenhet v. Boswell (A joint tenancy will not be severed by a lease to a third party; sole ownership of the property will vest in the co-tenant upon the death of the other tenant unencumbered by the lease. Lease terminates upon death b/c can only transfer what you own.) Minority: lease severs joint tenancy Today many states have abolished create joint life estates w/ alternative contingent remainders (not identical b/c remainders cant be destroyed by severance) Mortgage: traditional- mortgage not given to only part of joint tenancy Modern: lean maintained (in proportion to original share), upon sale of the property 3. Tenancy by the Entirety Joint tenancy only available to married couples (only states retain) Traditionally same creation requirements as joint tenancy + marriage today no abolish requirement same time/by same instrument (direct conveyance ok) Different from joint tenancy b/c: 1) individual interest cant be transferred w/o consent of both parties, 2) individual interests cannot be reached by creditors of one spouse, cant unilaterally encumber (minority, either spouse can unilaterally mortgage), 3) partition unavailable can only sever by divorce Originally created to give husband management powers outlawed in many states b/c defined property law in way that discriminated on basis of sex Sawada v. Endo (In a tenancy by the entirety, the interest of a spouse in not subject to the claims of creditors during joint lives of the spouses.) ii. Interpretations of Ambiguities Tenancies in common preferred when grantors intent ambiguous Touchstone is whether or not grantor intended right of survivorship Some states prefer tenancy by entirety for married couples iii. Rights and Obligations of Cotenants 1. Partition If co-tenants cannot agree how to use property main legal remedy is partition May be voluntary (voluntarily physically dividing property or selling and splitting proceeds) Involuntary/judicial partition: owners may force other owners to partition by bringing lawsuit Tenant in common/joint tenant: either physical partition (physical division of the property) or partition by sale (forced sale of property and dividing proceeds among owners) Courts generally prefer physical partition (generally only sold if physical results in great prejudice to one owner) Partition by sale: proceeds generally divided according to fractional ownership shares of parties though sometimes based on relative contribution to the property even if equal shares

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If subject to lease it will generally continue after partition Partition not available for common areas of condos Restraints on partition valid only if reasonable 2. Joint Management Equal power to control or control how property is used 3. Contribution for Repairs and Maintenance Co-owners may be liable to share costs of necessary repairs (duty to contribute to expenses for maintenance of commonly owned property) May sue co-owners for share of expenses No duty to share costs of major improvements unless previous agreement b/t the parties Owner who contributes more than fair share likely to get credit if property ever partitioned Some courts hold that if one tenant in possession no right to recover expenses for repairs from owners not in occupancy (some courts go other way) Duty to share costs of charges necessary to preserve property (mortgages, taxes, etc.) 4. Rental Benefits and Obligations Co-owners right to share rental income in proportion to respective fractional shares If one owner rents interest w/o gaining consent of others, then other owners no right to join lease but they retain all their possessory rights In absence of ouster, cotenant in possession no duty to pay nonoccupying owners rent Ouster: Occupying tenant has effectively excluded non-occupying tenants from the property must be sufficient to both exclude and communicating intent to exclude 5. Leasing Tenants in common and joint tenants have right to alienate (including lease, sell, etc.) interests w/o consent of co-owners Kresha v. Kresha (Husband leased fractional share of property w/o consent of wife, court ruled right to lease interest w/o consent of coowner and that lease survived divorce.) Carr v. Deking (Father had right lease his interest of property w/o sons consent, lease survived fathers death b/c tenants in common.) 6. Adverse Possession No adverse possession unless possessory tenant effectively excludes other co-owners (ouster) b/c all have right to possess property but dont have to c. Family Property i. Marital Property 1. Separate Property (majority) i. During Marriage Spouses own property separately except to extent they choose to share/mingle it w/ spouses Each spouse owns whatever had before marriage and individually liable for prior debts Property earned after marriage also owned separately unless join

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formally by joint bank-account to which both have access as joint tenant Spouses have legal duty to support each other (may require sharing property during marriage) if fail to comply w/ obligation may be forced by court to do so ii. On Divorce All states regulate division of property rights between parties on divorces Equitable distribution of property determined by many factors (need, status, rehabilitation, contribution during marriage, in some states fault, etc.) judge given great discretion in determining how to divide property OBrien v. OBrien (Court ruled that a graduate degree was marital property b/c of contributions of non-title holding spouse and is subject to equitable distribution on divorces.) Alimony: periodic payments from one spouse to support the other Statutory limit (trend to rehabilitation) Today alimony exceptional and if awarded is usually temporary (policy is for financial independence of parties) iii. Unmarried coinhabitants Common law marriage (minority): hold in public to be married, conduct affairs as married couple- statutory period Express contract Enforceable in most states, some oral is ok Implied contract Contract to share property or support one partner can be implied from conduct Aggrieved party may be entitled to have constructive trust imposed on other partys assets to prevent unjust enrichment (Watts v. Watts business) Same Sex Partners Some states civil unions marital rights Same sex marriage recognized by 6 states Defense of Marriage Act: shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State At odds with Good Faith and Credit Clause iv. On Death Spouse may determine who gets property by will separate property statutes may limit, giving right of spouse to overrule will Other than statutory forced share (specific share must go to surviving spouse) can leave own property to whoever wants to/give away during lifetime Right of Election: Spouse can challenge will for purported entitled distribution

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2. Community Property (minority)

During Marriage Property owned prior to marriage as well as property acquired afterwards by gift/devise/bequest/inheritance remains separate All other property acquired during marriage is community property (owned equally by both spouses) Each spouse individually may deal w/ community property w/o consent of the other Fiduciary duty to manage for good of community and act in good faith Both parties must agree to conveyance/mortgage In some states cant be reached by creditors unless both spouses consented to transaction ii. On Divorce Minority: spouse gets separate property and half of community property - mechanical distribution. Majority: equitable distribution of property ~ separate property states iii. On Death Spouse may dispose of own property and community property by will 3. Premarital Agreements Spouses may attempt to vary respective property rights during marriage/at divorce by signing agreements Most states review for fairness/voluntariness Usually require full disclosure of assets at time agreement is signed Not enforceable if: 1) not executed voluntarily, 2) agreement unconscionable d. Fair Housing Law i. Intro 1968: Fair Housing Act (prohibited discrimination in housing on basis of race, color, religion and national origin) FHA prohibits private discrimination in housing transaction, outlaws racially restrictive covenants, prohibits discrimination by government entities Intentional discrimination and disparate impact claims 1974 added prohibition on basis sex, 1988 added handicap and families with children (familial status) many states have added sexual orientation and marital status to own version ii. Intentional Racial or National Origin Discrimination 1. US Constitution th th Equal protection clause (5 and 14 ): prohibits discriminatory provisions in federal and state laws (doesnt apply to private conduct) Prohibition racial zoning; no enforcement racially restrictive covenants (Shelley v. Kramer) Equal protection clause requires discriminatory intent 2. Fair Housing Act of 1968 i. Prohibited Bases of Discrimination

i.

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ii.

iii.

iv.

v.

vi.

Race, color (treated same as race), religion (creed), sex, familial status, national origin, disability Covered Dwellings Residential real estate market Dwellings: 3602 Family can be single individual Exemptions Single-family houses sold/rented by owner (if no broker, owns 3 or less such dwellings, no discriminatory ads) (doesnt apply to sublet by tenant of apartment) Mrs. Murphy Exemption ( 3603(2)): building w/ four or fewer unites where landlord lives in the building (not exempt from discriminatory ads) 3607(a) exemptions for religious organizations and private clubs 3607(b) Housing for older persons exempt from prohibition against discrimination against families w/children Exemption for reasonable occupancy limits Permits discrimination against convicted drug dealers Prohibited Conduct 3604: prohibition of discriminatory refusals to sell or rent, or otherwise making [a dwelling] unavailable (catch-all phrase) Cannot discriminate in terms of lease/sale (ex: higher rent) No discriminatory advertisements, covenants, misrepresentations, blockbusting 3605: Prohibits discriminatory actions by brokers Standards of Proof Discriminatory treatment: intentional discrimination Disparate Impact: allegations that a facially neutral policy has an unlawful disparate effect on members of a protected group To show discriminatory intent: must make prima facie case showing 1) she is a member of a protected class, 2) she applied for and was qualified to rent/purchase the unit, 3) she was denied the opportunity to buy/rent, 4) the unit remained on the market Burden then shifts to who must produce evidence of a legitimate nondiscriminatory reason for the refusal to rent or sell (must be real reason, cannot be post hoc rationalization) Burden shifts back to to show that s reasons are pretextual Asbury v. Brougham (Black woman denied opportunity to rent apartment. Holding: showing s reasons pre-textual enough to support jurys finding in her favor) US v. Starrett City Associates (Court rejected notion that landlord may discriminate in access to rental housing when landlords goal is to promote integration.) Standing Those persons directly injured by discriminatory acts Those who have sufficient incentive to litigate the case (ex: testers, associational claims (denied housing b/c association

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iii.

iv.

v.

vi.

w/protected class)) Advertising Unlawful for an ad to indicate any preference based on race (ex: using only white models indicates to an ordinary reader a racial preference) viii. Remedies Substantially beefed up under 1988 Amendment Statute of limitations: 2 years Federal jurisdiction Injunctive relief and compensatory/punitive damages (no limit on punitive damages) Or can file complaint w/ HUD 3. Civil Rights Act of 1866 City of Memphis v. Greene (When the closing of a public street does not have a direct effect on the property interests of a minority group there is no civil rights violation under 1982.) Discriminatory intent is probably required under 1982 Dissent: effect of symbolic inconvenience Not co-extensive w/ FHA: limited to racial discrimination, probably applies to property exempt under FHA Sex Discrimination Court has held that sexual harassment violates FHAs prohibition against sex discrimination in housing (Grieger v. Sheets (962 )) Usually must show that harassment is severe and pervasive and must show relationship b/t harassment and housing Family Status Discrimination 1. Families With Children Exemptions for housing for older persons and reasonable occupancy limits Human Rights Commission v. Labrie (965) (The state fair housing act prohibits discrimination in renting if a person intends to occupy a dwelling with minor children.) 2. Marital Status McCready v. Hoffius (971) (Marital status is defined in the context of the presence or absence of marriage. Discrimination against an unmarried couple was prohibited if based on marital status (or lack thereof)) Courts are split on this question: is it discrimination on basis of status, or exclusion on basis of conduct (cohabitation), which is allowed? Also brought up issue of religiously motivated refusals to rent, which court has routinely rejected Sexual Orientation Discrimination 11 state plus DC and 100+ municipalities prohibit discrimination on basis of sexual orientation (but not federal) State ex rel. Sprague v. City of Madison (982) (Upheld validity of city ordinance banning discrimination in housing on the basis of sexual orientation.) Disparate Impact Claims (997, T611) 1. Race vii.

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It now appears settled that disparate impact claims are allowed under FHA Huntington Branch NAACP v. Town of Huntington (It is not necessary to show discriminatory intent in a disparate impact claim. must only show disproportionate impact or segregate effect by s actions to establish prima facie case.) In response to s prima facie case, must show legitimate justifications for action with no less discriminatory alternatives available Courts must then balance s justification for policy against disparate impact (though some courts hold that if can show legitimate justifications it ends the matter). Some courts also hold that disparate impact claims are only available against government/local agencies/policies and not against private individuals

2. Sex Doe v. City of Butler (1008) (Exclusion of group home is neutral w/ respect to sex b/c it excludes both shelters for battered women and group home that might be occupied by men.) 3. Disability Disparate impact claims for disabilities have two doctrinal foundations: 1) disparate impact and 2) reasonable accommodations Problems arise when zoning laws restrict to single family homes can group home be single family home? Many challenges to this have succeeded under FHA AFAPS v. ARPE (1019) (AIDS hospices) (It is a violation of the Fair Housing Act to refuse to allow construction of a group home for persons with disabilities when the refusal is based on a community fear of those who will live in the home (AIDS patients)) Familystyle of St. Paul v. City of St. Paul (1021) (A city ordinance requiring dispersal in the operation of group homes for the mentally ill is valid under the FHA b/c it is necessary to promote the mental health of the residents.) vii. Economic Discrimination 1. Exclusionary Zoning Southern Burlington County NAACP v. Township of Mt. Laurel (1030, T627) (NJ state constitution prohibits municipalities from enacting zoning laws the effectively excluded poor people from living in the community.) The town must permit multifamily housing and other types of low-cost housing Mt. Laurel II town has obligation to provide fair-share of regional low-income housing need Established government mandated inclusionary zoning (has since been adopted in 5 other states) 2. The Right to Be Somewhere: Homelessness and Public Loitering Laws No right to housing in US Courts split on rights of the homeless v. public loitering laws Public Land Use Planning

IV.

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a. Land Use Regulations i. Intro Basic tools of common law land use system are nuisance laws and law of servitudes but these tools are limited So enacted zoning and other legislative controls (explicit government land use regulation) Core is local zoning laws passed by city council and based on rights given by state in Zoning Enabling acts (Comprehensive Plans) ii. Protection of Pre-existing Property Rights Legal protection for property owners from retroactive application of zoning laws when laws unfairly surprised owners who invested in reliance on preexisting laws by denying them the ability to use the property in a manner that was permitted before the zoning law was instituted or changed. Generally applied as non-constitutional doctrines based on interpretation of states zoning enabling act (but basis unclear)(Police power) 1. Prior Non-conforming Uses Non-conforming uses authorized to continue despite inconsistency w/ zoning laws if established before zoning law enacted/changed Must have been lawful and in existence at time zoning ordinance was passed B/c inconsistent w/ surrounding area, there are limitations: Cannot be extended or intensified in a way that constitutes a substantial change May have time limitations on nonconforming use or zoning boards may strictly interpret rule against extensions of the use Insubstantial changes generally allowed (lots of litigation) Town of Belleville v. Parillos (1055, T649) (Restaurant converted into discotheque. Court rule use had changed in a way that harmed public interest and was inconsistent w/ surrounding zoning.)

Existing nonconforming uses permitted to continue only if it is a continuance of substantially the same kind and intensity of use Nonconforming use: use of land that lawfully existed prior to enactment of zoning ordinance, maintained after effective date despite noncompliance with use restrictions applicable to area as per ordinance, vested right to continue in such form Courts have permitted statutory limitations for nonconforming uses to prevent increase or change in nonconformity (enlargement or replacement of nonconforming structures, years to come into compliance)

2. Variances Permissions to deviate from the zoning law when application of the ordinance to a particular parcel would (1) Impose an Undue hardship and (2) the proposed use would not be contrary to the public interest/substantially impair purpose of zoning law Formal test for hardship strict: no economically viable use or no reasonable return on investment

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Failure to grant = denial of all beneficial uses, then granting of variance Realistically many zoning boards routinely grant if request is not a dramatic change and no neighbors object Commons v. Westwood Zoning Board (1058) (A variance may be granted when the strict application of a zoning ordinance would result in exceptional and undue hardship on the developer of the property.) Cochran v. Fairfax County Board of Zoning Appeals Board of Zoning Appeals may grant a variance only when ordinance interferes with all reasonable beneficial uses of the property taken as a whole Strict application of a zoning ordinance that effectively prohibits or unreasonably restricts utilization of property resulting in unnecessary hardship approaching confiscation- variance will alleviate hardship Majority rule: zoning boards can grant variances only in cases of exceptional and undue hardship Hardship cant be self imposed, must destroy all economically viable uses Minority rule: allows for granting of variances where lessor can show practical difficulties (significant economic injury from enforcement of the ordinance) (not substantially impair intent of zoning law or public good) Area variances generally considered Use variances generally bared

3. Vested Rights Owners who begin construction in good faith on existing law (or permit) are protected from retroactive changes if they have made substantial expenditure and/or efforts towards completion Majority rule: owners have vested rights to existing zoning regulations if they have invested substantially in reliance on those regulations Minority rule: vested rights if developers were granted site specific approval for development Stone v. City of Wilton (1065) (The standard for determining if a property owner has vested rights in a zoning classification includes the amount of construction accomplished prior to the rezoning.) Depends on type of project, location, ultimate cost, and principally the amount accomplished under conformity (cost benefit) iii. Rezoning: Limits on Preferential Zoning 1. Special Exceptions A special exception describes a conditional use permitted by the zoning board permitted when legislatively established conditions are met Presumption no need to apply Special exceptions: permits to develop in ways that are conditionally

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authorized by the zoning ordinance Generally requires sufficient direction to the zoning board (cant be vague) 2. Contract or Conditional Zoning Legislative body negotiates with petitioning developers to rezone property - allowance of zoning change on conditions to ensure that it is not harmful to neighbors or district - by K. o Challenged on basis of: Unauthorized by Zoning Enabling Act Inconsistent with Comprehensive Plan (specific) Illegal preferential spot-zoning o Conditional: developer to Zoning body (benefit for zoning change) o Contract: (mutual binding) (buying a variance)

Durand v. Bellingham
Just because the gift has nothing to do with mitigating the effects of the development, doesnt mean the zoning is invalid o Zoning is legislative act Strong presumption of validity o Test: whether zoning violates state law, arbitrary and unreasonable, substantially unrelated to health, safety, or wellbeing of the community Types of Arrangements: o Bilateral: city promises rezoning, developer promises to adhere to conditions - Contract Often struck down: Bypasses statutory procedures allowing public hearing on zoning law Binds govt contractually to pass zoning law Prevents govt from changing law in the future o Unilateral: Developer promises to adhere to conditions IF city rezones property - Conditional enticement Struck down less than bilateral: much more common nowadays Preferred, allows for public hearings 3. Spot Zoning Selective rezoning by the municipal legislative body of a single parcel or small group of parcels of land (usually not allowed) Gives a discriminatory benefit that is inconsistent w/ zoning of the surrounding area, detrimental to community, not justified as public power measure designed to promote public welfare o

Challenging Zoning o Unauthorized by zoning enabling act o Illegal spot zoning o b. Regulatory Takings i. Intro Property rights serve twin roles: 1) protector of individual rights against other citizens, and 2) safeguard against excessive government interference

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Owners must be protected from having property rights seized or unduly infringed by the state State: both defines and is limited by individual property rights 5th Amendment: prohibiting fed gov. from taking private property for public use w/o just compensation Applies to states through 14th Amend. prohibits deprivation of property w/o due process Police power of the state: encompasses original power of the state governments to pass legislation regulating private conduct to protect the public health, welfare and safety Every exercise of state power affects property interests in some way When state acts w/in legitimate sphere of police powers damnum absque injuria (damage w/o legal redress) Eminent domain: power of state to take or condemn private property, expropriating it, paying just compensation to owner, and transferring to some use designed to further public welfare Regulatory takings: arises b/c state actions intended to regulate private conduct sometimes have disproportionately negative effects on some property holders Takings clause mediates b/t police power and eminent domain power (1) A taking (2) for public use (3) without just compensation If for public use government may take so designed to ensure compensation to owner Determining circumstances under which government acts/regulations require compensation to property holders whose interests are negatively affected by government regulation ii. Historical Background 1922: Pennsylvania Coal v. Mahon (6) (TAKING) First case where court struck down land use regulation as unconstitutional taking of property (Holmes) If a regulation goes too far, it has to be compensated Court found that statute requiring all mining companies to conduct operations in a manner which did not undermine subjacent support for surface structures was a taking of property right to mine coal was very valuable estate in land and statute was taking that right away by limiting coal that could be mined Brandeis: dissent: Diminution in value must be calculated w/ reference to whole property 1926: Village of Euclid v. Ambler Realty (NO TAKING) Substantial decrease in market value not enough for taking, even if 75% reduction in FMV 1928: Nectow v. City of Cambridge (TAKING) Zoning law as applied to vacant lot rendered useless for residential purposes and impermissibly infringed on constitutionally protected property rights. (One property split by zoning law into two different zones thing allowed to be built in residential part so small no one would buy) iii. the Ad Hoc Test Ad hoc test: 1. Character of government action, 2. Protection of reasonable,

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investment-backed expectations, 3. Economic impact of regulation on that particular owner Balanced against public policy Test: fairness and justice: whether a regulation is an unconstitutional taking of property is determined by whether the burden it imposes on the owner is just or fair. places limitations on obligations owner can be forced to bear for good of the community Court looks at particular circumstances of each case Standard is generally great deference to the legislature, but claims can prevail if regulation not reasonably related to legitimate government interests a. Ad Hoc Test: Fairness and Justice Miller v. Schoene (1928, 13) (NO TAKING) Cedar v. Apple trees. Nuisance problem. State had to choose between one type of property and another not unconstitutional to protect property of greater value to the public Penn Central v. New York City (1978, 14) (NO TAKING) Historic preservation laws OK Parcel as a whole is what matters This is the test today: 1) character of government action (purpose) 2) economic impacts (of whats there, not speculative), 3) Interference w/ investment-backed expectations (now must be a reasonable expectation) Denial of most efficient use is not a taking Balanced against public policy Just b/c more severe impact on some owners doesnt make it a taking Regulation not interfering w/ primary expectation for use of parcel (train station) Character of government action: state is generally empowered to protect public w/o compensating those whose property interests suffer a resultant economic impact Must determine whether law is conferring public benefit (requires compensation) or preventing public harm (no compensation) Does law illegitimately create disparate impact on certain class of owners or legitimately heighten restrictions on certain classes of property? Regulations also upheld if create average reciprocity of advantage (ex: zoning laws, public accommodation statutes, historic preservation statutes) Economic Impact: greater the diminution in value, the more likely the regulation will be classified a taking (extent diminution in value depends on definition of property interest what is the denominator? The parcel as a whole or the particular interest infringed?) No owner is guaranteed most beneficial use of the property Interference w/ reasonable investment-backed expectations: regulation is more likely to be a taking if a citizen has already invested substantially in reasonable reliance on existing statutory/regulatory regime Less likely to be taking if merely limits future benefit/imposes opportunity costs People must have some right to rely one existing law at time of investment

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But legislature must also have ability to change law in response to changing circumstances, scientific discoveries (environmental), harms. Now Reasonable Expectations Dependent on regulatory regime at the time

iv.

i. Physical Occupation Loretto: cable boxes on landlords property - taking because permanent physical invasion = per se taking - but since positive economic impact, no real compensation Physical invasion on land (can be small) is a taking ii. Deprivation of Economically Viable Use Lucas v. South Carolina Coastal (1992) (TAKING) If regulation results in property have no economically viable use at all ($0 FMV) its a taking unless preventing harm or owner never had that right to begin with (nuisance) Beach front management act prevented development on Lucas land Hadachek: Brickyard nuisance Mugler: Brickyard - Noxious use (society deems bad) vs. nuisance (in common law); (didnt take away all rights) Public Use Requirement 1. US Constitution Kelo v. City of New London (2005) Public use requirement in Constitution is should be interpreted as public purpose Deference to local determinations that area is economically distressed State statute grants authorization for eminent domain for purposes of economic development (Integrated development plan) Public ownership is not the only method for promoting public purpose Seizing of property by eminent domain and transferring to private parties is Constitutional if it is for public purpose Government forbidden from taking property for the purpose of benefiting another private party, despite compensation Legislature has GREAT DEFERENCE States may further restrict the exercise of takings power (public use requirements can be made stricter) Rational Basis Review: lowest level of scrutiny for action Kennedy concurrence: question of favoritism close scrutiny OConnor dissent: harm has to be shown

V.

2. State Constitutions Most state constitutions interpreted in manner consistent w/ federal interpretations (though some interpret public use more stringently) Tribal Property

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Johnson v. MIntosh (4) Indian title: created new estate in land which said that title was split b/t US govt and relevant Indian nation US has fee, Indian nation has Indian title (later called a right/title of occupancy)

What can be Owned, How can Property be Obtained Conquest Johnson v. MIntosh o NA tribes are not sovereign nations, have no authority to sell land, exclusive title belongs to discoverer (title by conquest); therefore NA unable to transfer title o US to take exclusive title to land Finders o Willcox v. Stroup Civil War Papers- now, presidential property is public (federal statute) Common law principle: rebuttable presumption of possession; absent evidence of superior title, proof of possession is sufficient proof of title (stability, status quo protection) o Charrier v. Bell NA grave, not abandoned property, Abandonment requires intent o Lost property: accidentally misplaced, owner typically still has a claim o Mislaid property: intentionally left, but forgotten where, owner typically still has a claim o Abandoned property: intentionally relinquished all rights of ownership o Treasure trove: valuable property intentionally left (usually goes to finder) o True owners have right to recover lost or mislaid against a finder o Finders have a right against third parties o Landowner> trespassing finder/licensee (split); split on public land; embedded in soil-landowner Family Obligations, Gifts, and Inheritance Bayliss v. Bayliss o Divorcing parents may be required to pay college costs if they would have had there been no divorce. Standard of living consideration. Courts split on the obligation Gifts and Inheritance o Gift: transfer of property from one person to another without payment. Inter vivos: both people are living Testamentary transfer: transferred through a will or inheritance 43

If no will present, transfer is by terms of state laws intestacy statute Law of gifts requires: Intent to transfer title (present intent required) Delivery of the property o Constructive- key, dominion and control (intent over delivery) o Symbolic- writing where actual delivery is impractical can be symbolic-physical delivery inconvenient) Acceptance by the gifted party

Possession Fugitive/Fungible Resources o Oil & Gas subject to the rule of capture: can shift from one persons property to another Whoever captures the oil owns it even if it was drained from neighbors property o Exception Cliff v. Texon Drilling Co. Because D misappropriate the oil (negligently drilled), Ps title not lost under law of capture Water/Riparian Rights Groundwater 1st in time capture, some states have reasonable use doctrine Riparian- prior appropriation rule- first put to productive use (reasonableness) o Surface water Common law natural flow doctrine: use must not interfere with natural flow Modern rule: Reasonable use Pierson v Post o First in timerule of capture o Elements: (1) intent to possess, (2) occupancy (deprived of liberty, can be moral wounding) o D takes fox that P was hunting. D wins on appeal o Pursuit of wild animal is not possession o Court chooses capture over pursuit. Incentives: Competition Ease of administration o Exception, trespasser looses title to landowner Popov v. Hayashi o Efforts made to catch a homerun ball not enough for possession, actor must achieve full control (custom) o Pre-possessory interest does not establish full right to possession, can provide grounds for a cause of action for conversion 44

o Equitable division: disincentive to mob rule, Third party must act in good faith Voluntary Transfer Relativity of Title: Peaceable (actual) possessor of property has superior claim to all others except true owner Thief has no title, cant transfer title Ps right rests on strength of his own title Old rule: Only person who could bring a claim was the true owner -> no possessor Tapscott v. Lessee of Cobbs o Lewis buys land (never final), Cobbs inherits, lives on it, Tapscott moves on and tries to eject Cobbs o Relativity of Title: As title (owner)>Bs title (finder/possessor)>Cs title (3rd party) Personal Property o Thief cannot transfer title: voids the title of the bona fide purchaser o If property is entrusted to someone in the business of selling the type of goods entrusted, title sometimes can be transferred (entrusted party has a voidable title) to bona fide purchaser (protects channels of commerce) Intellectual Property INS v AP o News protected like IP in the paper/competitor relationship: quasi-property Rationale is unfair business practice to copy from AP bulletin board o News wouldnt be profitable if this allowed National Basketball Association v. Motorola Inc. o No monopoly on facts, cannot prohibit others from repeating facts learned from anothers broadcast o Test for common law claim for misappropriation Gathering information is at a cost Information is time sensitive Ds use of information constitutes free-riding Ds use is in direct competition, and its continued use would decrease incentives and quality of original Cheney v Doris Silk & Smith v Chanel o Imitation/comparison allowed competition drives down prices o Imitation allowed, but not copy of expression Like 1st in time: what you create is your property o Limited monopoly allowed for IP before entering the public domain Patents (20 yrs) o Novel, useful, non-obvious o No natural laws/phenomena or abstract ideas Copyrights (70 yrs after death of creator) o Original works of ownership that are fixed in a tangible medium of expression (not ideas) 45

o Must be original, but not novel o Cant own whats created during work-for-hire, belongs to employer o Fair use: if used for criticism, comment, news reporting, teaching, scholarship, or research (Suntrust Bank v. Houghton Mifflin Co.4 factors) Purpose and character of the work Nature of the Copyrighted work Amount and substantiality of the portion used Effect on market value of the original o Feist Publication, Inc. v. Rural Telephone Service Facts not copyrightable, original compilations are o Trademarks Word, name, device, or symbol indicating source of product (and quality) Lost by abandonment/becoming generic First use of mark establishes it- nature of the product Reward for labor Lanham Act: registration of trademarks created by state law Creates actual or constructive notice of existing trademarks Qualitex Co v. Jacobson Products Co Color can be trademarked under Lanham Act Reduces customers costs of shopping and making purchasing decisions; encourages production of quality products (reward for labor) (dilution, blurring) Functionality doctrine prevents trademarking to control a useful product feature (this is for patent law to do; time limit on protection) Publicity Rights o Martin Luther King Jr. Center for Social Change v. American Heritage Products Right to publicity exists (statutory right): excludable, transferable, exploitable Right survives the death of its owner and is inheritable and devisable (some states say no, some impose limits) Prior publicity and non-exploitation does not eliminate this right Moral Rights o Artists ongoing interest in piece of art after its entered commerce, been sold (this is a property right) o Visual Artists Rights Act (1990) o Prevents intentional distortion, mutilation, or modification which would be prejudicial to the artists reputation or honor o Notice and opportunity to move given to artist if attached to building and in way of being damaged

Human Beings Moore v Regents of University of California 46

o Hospital patents a cell line based on Ps cells o Sues based on theory of conversion (profiting from the taking of anothers property) o Conversion claim rejected by CA supreme court Slippery slopecould allow people to sell body parts Patented cell line is different from the cells removed from P, he has no claim to the final product because they differ substantially from the original, patent requires innovation/ingenuity Statute says human tissue must be disposed of after removal, so he loses property right He can prevail under informed consent, no need to bring into realm of property law Recognizing the conversion claim- bona fide purchaser issue for researchers In the Matter of Baby M o Surrogacy contracts are void (in NJ) (some states enforceable but voidable) o Childs best interests determines custody o This is the sale of the child, or of the mothers right to her child (Commodification demeans value) Frozen embryos o Courts have ruled as a conflict between right of one to procreate and right of other not to be forced into parenthood (later usually wins, unless no reasonable means of reproduction available for the former) o Davis v. Davis: frozen embryos are not people: parents have a shared interest (not a property interest but a decision making authority) o Kass v. Kass: frozen embryos are property (NY) o A.Z v B.Z.: contract granting ultimate control to one party unenforceable (forced parent argument) Wana the Bear v. Community Construction, Inc. o Native American burial site being bulldozed, buried before statute, not abandoned o 1872 statute required use of the land as a burial site continuously, uninterrupted, for five years (not held to be retroactive) o Prescription (common use, 6 bodies or more) v. dedication (statute, 5 years) Dred Scott o Slaves are property

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