1. 1. 1. No legal alternative
      2. The legislature has not expressly precluded the defense
      3. Necessity trespasser still must compensate owners for damages caused by their trespass (Vincent v. Lake Erie - a boat moored at a private dock in a storm and had to pay for damages to the dock)
      4. An owner evicting necessity trespassers can be tortious (Ploof v. Putnam - unmooring a trespassing sailboat during a storm and causing injuries was a tort)
2. Courts are apt to divvy out punitive damages in cases of trespass
   • Glavin v. Eckman - a contractor was hired to cut down trees blocking view and the court trebled restoration damages
   • Courts want to make the price of trespassing unreasonably high so that people will not simply pay for the right to do so (Deterrence)
   • There is inherent value in one’s right to exclude (Jacques v. Steenberg - 100k in punitive damages to D who drove mobile home across land without causing any property damage)
   • The private right to exclude is “one of the most essential sticks in the bundle commonly characterized as property (Doland v. City of Tigard)
3. Generally in most jurisdictions, a property owner can exclude others from a commercial property for any reasons not specifically prohibited by federal laws
   • Inns and common carriers are an exception to the rule and cannot arbitrarily exclude (Madden v. Queens County Jockey Club)
   • Uston v. Resorts Int. Hotel is another rare exception wherein a casino could not exclude a card counter
4. The Civil Rights Acts of 1964 place restrictions on the grounds by which owners can exclude in places of public accommodation
   • Under this act, Ps can only receive injunctive relief and not damages
   • What is a place of public accommodation?
5. The Civil Rights Acts of 1866 I think was intended to be super far reaching but ended up only being used to protect the right to contract from being infringed upon on the basis of race
6. The right to free speech does not extend to trespassers on private property (Lloyd Court v. Tanner - protesters were distributing handbills and such behavior violated mall policy)
   • Contrary case in which a mall was deeming a critical community gathering space where free speech was allowed (Logan Valley)
7. If public property is only accessible through private property, citizens must be given a right of way through that private property so they can reasonably enjoy public lands (Matthews v Bay Head - citizens were granted access to the dry sand beach in order to enjoy the tidal lands)

1. The current possessor enjoys a rebuttable presumption of ownership (Willcox v. Stroup)
   • This presumption 1) promotes stability, 2) resolves evidentiary problems, and 3) did not hurt the public interest
2. There is a hierarchy of ownership claims
   • One who finds lost property has a right to it over people who steal it from them (Armory v. Delamirie - chimney sweep and jewel)
3. Abandonment rules do not apply to buried goods with the dead (Charrier v. Bell - an archaeologist who removed artifacts without consent did not have property interest in the artifacts)
4. one who does not hold legal title but possess property has rights over an intruder who comes on property without any title (Christy v. Scott - P possessed land and after the US acquired land from Mexico, D forcibly removed P. P wins bc his possession was a greater claim to title than D, who had nothing)

1. Whales
2. Possession is required to establish property rights (Pierson v. Post - Pierson killed and took the fox Post was pursuing with his hounds across public lands)
3. Acquisition by possession requires clear marking of ownership without abandonment of property (Popov v. Hayashi)
4. Absent no evidence to establish ownership/clear chain of title, possession can be enough to establish a successful claim (Willcox v. Stroup - Wilcox had civil war documents in his attic and got to keep them)
   • Since Wilcox had allowed the documents to be recorded on microfilm, his possession did not violate public policy
5. There is a presumption of ownership for the possessor because it: (Willcox v. Stroup)
   • Promotes stability
   • Resolves evidentiary problems
   • Does not hurt the public interest
6. There is a quasi-property right in published news (INS v. AP)
7. A quasi-property right can be established if the it can be established that the D is taking material acquired:
   • 1) As a result of organization and the expenditure of labor, skill, and money
   • 2) the material taken is saleable
   • 3)the D in taking and selling it is reaping what it has not sown (unfair appropriation)

1. Should courts prefer standards or rules?
   • Rules are more consistent and unambiguous than standards
   • Standards are more context-dependent
2. Formal Realizability - when a rule or standard is difficult to apply
3. Legislators are in a better position to weigh costs and benefits of a rule or standard than the court
4. Wealth maximization - should judges attempt to lay down rules and standards that promote wealth maximization?
   • E.g. capture rule for oil
5. Scalia - the rule of law is law of rules. Courts are better at applying clear rules
   • Counterargument is that judges are good at assessing context and seeing all sides because they see so many cases

1. Legal regime for control of nonrivalrous resources
2. If news industries, movie studios, publishing houses, etc. are to flourish, there must be a structure that allows them to flourish.
3. System creates purely legal powers of exclusion that by their inherent nature would be open to all
4. Want to keep the raw materials of innovation free from protection (Myriad)
5. Can become owner of a fox but can’t own all foxes
6. Copyright Law - promotes the progress of science by securing for a limited times to authors and inventors the exclusive rights their respective writings and discoveries.
7. 3 steps in analyzing whether something violates copyright law
   • 1) is there protection? 3 requirements
     • 1) Originality, NOT LABOR (Feist)
     • 2) Work of authorship (8 such works: literary/computer programs, musical, dramatic, pantomimes/choreographies, pictorial/sscultural, audiovisual/movies, sound recordings, architectural)
     • 3) The work must be fixed in some kind of tangible medium
   • 2) is there infringement?
   • 3) Is there an exception for fair use?
     • Suntrust Bank v. Houghton Mifflin Co. - author was permitted to copy parts of Gone with the Wind under fair use doctrine
8. Fair Use - exceptions for purposes like criticism, comment, news reporting, teaching, research, etc. In assessing fair use, must look at:
   • 1) Purpose and character of use
   • 2) Nature of the copyrighted work
   • 3) The portion used
   • 4) The effect of use on market or value of the copyrighted work
9. Satire and Parody - falls underneath the fair use awning of use
   • In parody, must be able to recognize specific work
   • Apply the fair use prongs
   • “A work will be treated as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating new artistic, as opposed to scholarly or journalist work” (Suntrust Bank)
10. Originality requirement - a property right exists if originality is in a work. There are 2 requirements:
    • 1) It must be independently created
    • 2) it must possess some minimal degree of creativity
      • Arranging names alphabetically in a phone book does not reach this threshold or creativity (Feist v. Rural Telephone)
    • Facts cannot be original on there own, they must be presented in an original way in order for a party to receive protections
11. Copyright promotes learning, protects the public domain, and grants exclusive right to the author (Suntrust Bank v. Houghton Mifflin Co. - author was permitted to copy parts of Gone with the Wind under fair use doctrine)
12. Patent Law - for anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof. There are 5 requirements to qualify for a patent:
    • 1) Subject is patentable (machine, manufacture method, composition of matter)
    • 2) Invention is novel
    • 3) Nonobvious
    • 4) Useful
    • 5) Fully and particularly described
13. Groundbreaking discoveries and extensive effort alone is insufficient to satisfy the demands of patent protection (A.M.P v. Myriad - Myriad can’t patent a naturally occurring molecule it isolated. It could patent the cDNA it invented to find the molecule)
14. Publicity Rights
    • Public figures have an exclusive right of publicity that is inheritable and devisable
    • The owner of the right of publicity does not have to commercially exploit that right for it to survive (MLK, Jr. Center for Social Change v. American Heritage Products - MLK’s heirs could enjoin the use of MLK’s likeness for sale even though they did not use MLK’s likeness commercially themselves)
    • MLK case suggests that anyone could invoke publicity rights if they wanted to preserve their image for a commercial purpose

Doctrine of Discovery

I've included what I have from my property outline so far below. The formatting didn't transfer over so I'll fix that soon

Trespass and the Right to Exclude

1. Trespass is an unprivileged intentional intrusion on the property of another
2. A trespasser does not have to intend to trespass, only has to intend to be in a given spot.
3. Entering another’s property is justified with permission out of necessity, or if entry is encouraged by public policy
   • Public policy can override an owner’s right to exclude (State v. Shack - Ds were allowed to trespass to provide legal and medical aid to migrant workers
   • The migrant workers were living on their employer’s land and isolated from general society
   • Necessity has 4 elements (same as crim) (Commonwealth v. Magadini - homeless man slept in commercial building to escape cold)
     1. Clear and imminent danger
     2. Reasonable expectation that action will abate danger

Relative Strength of Ownership Claims

The current possessor enjoys a rebuttable presumption of ownership (Willcox v. Stroup) This presumption 1) promotes stability, 2) resolves evidentiary problems, and 3) did not hurt the public interest There is a hierarchy of ownership claims One who finds lost property has a right to it over people who steal it from them (Armory v. Delamirie - chimney sweep and jewel) Abandonment rules do not apply to buried goods with the dead (Charrier v. Bell - an archaeologist who removed artifacts without consent did not have property interest in the artifacts) one who does not hold legal title but possess property has rights over an intruder who comes on property without any title (Christy v. Scott - P possessed land and after the US acquired land from Mexico, D forcibly removed P. P wins bc his possession was a greater claim to title than D, who had nothing)

Rivalrous Resources

Whales Possession is required to establish property rights (Pierson v. Post - Pierson killed and took the fox Post was pursuing with his hounds across public lands) Acquisition by possession requires clear marking of ownership without abandonment of property (Popov v. Hayashi) Absent no evidence to establish ownership/clear chain of title, possession can be enough to establish a successful claim (Willcox v. Stroup - Wilcox had civil war documents in his attic and got to keep them) Since Wilcox had allowed the documents to be recorded on microfilm, his possession did not violate public policy There is a presumption of ownership for the possessor because it: (Willcox v. Stroup) Promotes stability Resolves evidentiary problems Does not hurt the public interest There is a quasi-property right in published news (INS v. AP) A quasi-property right can be established if the it can be established that the D is taking material acquired: 1) As a result of organization and the expenditure of labor, skill, and money 2) the material taken is saleable 3)the D in taking and selling it is reaping what it has not sown (unfair appropriation)

Judicial Role

Should courts prefer standards or rules? Rules are more consistent and unambiguous than standards Standards are more context-dependent Formal Realizability - when a rule or standard is difficult to apply Legislators are in a better position to weigh costs and benefits of a rule or standard than the court Wealth maximization - should judges attempt to lay down rules and standards that promote wealth maximization? E.g. capture rule for oil Scalia - the rule of law is law of rules. Courts are better at applying clear rules Counterargument is that judges are good at assessing context and seeing all sides because they see so many cases

Intellectual Property

Legal regime for control of nonrivalrous resources If news industries, movie studios, publishing houses, etc. are to flourish, there must be a structure that allows them to flourish. System creates purely legal powers of exclusion that by their inherent nature would be open to all Want to keep the raw materials of innovation free from protection (Myriad) Can become owner of a fox but can’t own all foxes Copyright Law - promotes the progress of science by securing for a limited times to authors and inventors the exclusive rights their respective writings and discoveries. 3 steps in analyzing whether something violates copyright law 1) is there protection? 3 requirements 1) Originality, NOT LABOR (Feist) 2) Work of authorship (8 such works: literary/computer programs, musical, dramatic, pantomimes/choreographies, pictorial/sscultural, audiovisual/movies, sound recordings, architectural) 3) The work must be fixed in some kind of tangible medium 2) is there infringement? 3) Is there an exception for fair use? Suntrust Bank v. Houghton Mifflin Co. - author was permitted to copy parts of Gone with the Wind under fair use doctrine Fair Use - exceptions for purposes like criticism, comment, news reporting, teaching, research, etc. In assessing fair use, must look at: 1) Purpose and character of use 2) Nature of the copyrighted work 3) The portion used 4) The effect of use on market or value of the copyrighted work Satire and Parody - falls underneath the fair use awning of use In parody, must be able to recognize specific work Apply the fair use prongs “A work will be treated as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating new artistic, as opposed to scholarly or journalist work” (Suntrust Bank) Originality requirement - a property right exists if originality is in a work. There are 2 requirements: 1) It must be independently created 2) it must possess some minimal degree of creativity Arranging names alphabetically in a phone book does not reach this threshold or creativity (Feist v. Rural Telephone) Facts cannot be original on there own, they must be presented in an original way in order for a party to receive protections Copyright promotes learning, protects the public domain, and grants exclusive right to the author (Suntrust Bank v. Houghton Mifflin Co. - author was permitted to copy parts of Gone with the Wind under fair use doctrine) Patent Law - for anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof. There are 5 requirements to qualify for a patent: 1) Subject is patentable (machine, manufacture method, composition of matter) 2) Invention is novel 3) Nonobvious 4) Useful 5) Fully and particularly described Groundbreaking discoveries and extensive effort alone is insufficient to satisfy the demands of patent protection (A.M.P v. Myriad - Myriad can’t patent a naturally occurring molecule it isolated. It could patent the cDNA it invented to find the molecule) Publicity Rights Public figures have an exclusive right of publicity that is inheritable and devisable The owner of the right of publicity does not have to commercially exploit that right for it to survive (MLK, Jr. Center for Social Change v. American Heritage Products - MLK’s heirs could enjoin the use of MLK’s likeness for sale even though they did not use MLK’s likeness commercially themselves) MLK case suggests that anyone could invoke publicity rights if they wanted to preserve their image for a commercial purpose

Concurrent Estates

Concurrent ownership - when parties share property rights A lot of discretion given to owners of estate to work out division of property rights within estate during relationship E.g. interior decorating, who gets what room, etc. Estate laws deal more with the formation and dissolution of these relationships rather than arbitrating disputes once these relationships have been established Estates are tetris blocks and policy tools to promote certain kinds of relationships Partnership - concurrent ownership for business purposes There are three types of concurrent estates: tenancy in common, joint tenancy, and tenancy by entirety These tenancy types differ in how they are created, right for survivorship, tenancy termination rights, whether tenants can encumber property Encumbrance - modifying the property, e.g. redoing the kitchen Survivorship - do property rights transfer to other tenants upon death? Unilateral termination - can you get out of the arrangement without the other parties’ consent? Tenancy in common Default type, no transfer of rights upon death of common owner to other tenants Each has right to possess property in its entirety Each tenant has right to transfer property, upon death via lease, etc. New tenant becomes co-tenant Can request partition, ends tenancy in common and distributes property between tenants A cotenant may lease out their interest in property to a third party without the permission of cotenants. The third party then becomes a tenant in common with the other cotenant. (Carr v. Deking - the father made a deal with a farmer without his son’s knowledge) Joint tenancy 4 unities must exist at point of creation (TTIP) Time - have to come into claim at same moment Title - by same instrument (e.g. sale to all, will to all) Time and title mean that it’s a single legal act Interest - must have equal fractional shares Unique to joint tenancy Possession - have undivided right to possess property Many jurisdictions are willing to waive the 4 unities if there is evidence of intent to create a joint tenancy Like tenancy in common with survivorship right When joint tenant dies, property interest transferred to remaining joint tenants A will built into property structure. Can’t override this with another will Joint tenancy is severed if a joint tenant sells their property interest to a third party New tenant becomes tenant in common to other tenants Remaining tenants are still in joint tenancy Must have express intent to create joint tenancy Can create joint tenancy out of tenancy in common A lease to a third party expires upon the death of the lessor joint tenant (Tenhet v. Boswell - Johnson (a JT) leased to a third party w/o Tenhet’s (other JT) knowledge. Johnson died right after and the third party lease died with him.) How joint tenancy deals with the dead hand problem This principle is oftentimes unfair to the third party Tenancy by entirety Only available to married couples. Encumbrance depends on consent of spouse Like joint tenancy + Married couples are seen as one legal person erodes American individualism and promotes Aristophanes depiction of love Protects each tenant from other tenant selling off property One tenant can’t use property as debt collateral Must have mutual agreement Includes right of survivorship If couple gets divorced, default to tenancy in common Does not slip down to joint tenancy, goes all the way down to tenancy in common Joint tenancy must be expressly created Right against unilateral alienation The interest of one spouse in property held in tenancy by the entirety cannot be reached by his or her individual creditors ( Sawada v. Endo - the Endos deeded their land to their sons, creditors tried to set aside conveyance to get at land, creditors failed) Esteems the unity of a married couple For our purposes, does not have to satisfy 4 unities In some jurisdictions, lack of 4 unities can be overcome by intent (22:00) Feb 11 TA session When a couple divorces and a constructive ouster occurs, the remaining spouse is required to pay rent to the ousted spouse (Olivas v. Olivas - a husband left to live with his GF) Constructive ouster - a party leaves bc the situation has become so untenable If one has many heirs, property management may become untenable at a certain point Devise - act of transferring land via will to devisee These arrangements grant a lot of discretion to tenants to work out how to use land Rules for end of relationship but rely upon interpersonal relationships to govern land use during course of relationship If land is held in common but only one tenant lives there, he does not owe them rent Exception - a tenant has been ousted from the premises Profits - co-owners are entitled to share any rents or other profits from the property Burdens - co-owners have a duty to share basic expenses needed for the property There is no duty to share the costs of improvements Formula for contribution of tenant out of possession : (Carrying costs - rental value) x that owner’s fractional share Carrying costs - costs associated with ownership such as mortgage, real estate taxes, utilities etc. Family property rights -

Future Estates

A very rigid system. Hyperformalist. What many people w/o legal background expect the law to be. Executory interest - a future interest held by a non-grantor that either cuts off another’s interest [before its natural expiration] or begins after the natural termination of a preceding estate Fee simple - present estate that could potentially last forever in that property interest does not lapse after death or lapse of time. 4 types of fee simple estates. Generally means they own the property outright and can decide what happens to property when it leaves their hands. E.g. sell it, devise it in will, etc. Fee simple absolute - fee simple without an associated future interest. This is sort of default O to A | O to A and her heirs | O to A in fee simple “To A,” “to A and her heirs” (don’t have to say “and her heirs”) Cannot create a condition prohibiting the alienation of a vested fee simple estate (Edwards v. Bradley)

Defeasible Fee Simple - present interests that terminate at the happening of a specified event other than death of current owner Fee simple determinable - possibility of reverter if condition comes about O to A so long as used for residential purposes O to A on condition property is used for residential purposes; in the event it is not, O shall have right of entry Possibility of reverter - automatically goes back to grantor moment condition is violated. This is something that happens to you This is a future interest Words of duration “as long as,” “during” “until” “while” etc. The language of a deed must be extremely specific to set up a fee simple determinable (Wood v. Board of County Commissioners of Fremont County - Ps tried to convey land to be used as hospital in fee simple determinable or fee simple subj to condition subsequent but the court ruled Ps had no interest in the land after looking at the language of the deed) Determinable deals with durations Fee simple subject to condition subsequent (755) Right of entry - grantor can choose whether or not property reverts when condition is violated. Liberty or power you can decide to exercise or not Words of condition, “Provided that” “on condition” “but if” etc. If O’s future interest is not expressly described in the language of the grant, then it is implied to be present. Fee Simple Subjet to Executory Limitation - ownership can shift to third party if condition is violated E.g. O to A as long as used for residential purposes, then to B “Until (or unless) …, then to…” “but if…, then to…” Life Estates Reversion - when the grantor holds a future interest in the property Remainder - when another party holds a future interest in the property Arises simultaneously with the present interest Is not possessory until the present interest expires Vested remainder - a future interest granted to someone with a presently ascertainable identity without any conditions precedent to the complete vesting of rights of the remainderman Your interest in the property terminates after death (Edwards v. Bradley - a woman who had a life estate tried to exclude her daughter from getting land in her will but she did not have the authority to exclude) Life estate pur autre vie - when A with a life estate and conveys it to B, B has it until A dies and then it reverts to O Waste Doctrine A life tenant has full use and enjoyment of the property as long as they exercise ordinary care to preserve and protect the property i.e. does not commit waste (McIntyre? v. Scarbrough - old lady with life estate stopped caring for land, living there, and did not pay taxes on it, forfeited her life estate) The waste must be voluntary and active (McIntyre? dissent - old lady had health problems and was planning on moving back in) Affirmative waste - can’t cut down all the trees Permissive waste - can’t let the land fall into disrepair Ameliorative waste - can’t improve land w/o permission Contingent remainder - contingent if one of both of two conditions are met Remainder take effect upon happening of an estate that is not certain Remainder will go to a person who cannot be ascertained at the time of the initial conveyance Go to A then A’s children (A does not have any children) O to A, then to B if B marries C Contingent upon B marrying C Vested Remainder subject to open O to A then A’s children (A has children at time of vesting) Subject to open as long as A can have more children The children can convey their interest to another person before it fully vests. (E.g. A’s child B dies and B’s will conveys all property to D, D has property interest in blackacre after A dies) Vested remainder subject to complete divestment O to A for life, then to B, but if B ever marries, to C Cy Pres - when a charitable trust’s purpose is no longer achievable, the donation either reverts to heirs of donor or the courts modify it for a similar goal Modern courts presume charitable intent even though this expands their power Cy Pres cannot be used to strike racially restrictive clauses of a will if they violate the donor’s intent (Evans v. Abney - Donor gave park that was to exclude nonwhites, park reverted to donor’s heirs) The park was treated as a fee simple determinable with automatic reversion to honor grantor’s intent Evans Dissent: the state cannot interfere with the integration of a park Page 755 chart and problems Vested - when property rights become secured Fully vest - all future interest holders are ascertained and any contingencies for their ownership are removed Not when future interest becomes possessory but when we know who will own the property

Rule Against Perpetuities

Policy rationale Put some boundaries on the degree of confusion and uncertainty that a present grantor might impose I still think this is pretty dumb because that rationale could be used in various other arenas of property Rule can be understood as pure formalism. Policy goal does not really aid in application You will have a grant that creates a future interest Wherever there is a future interest there is a present interest Is future interest valid and enforceable or invalid and struck from the grant Struck future interests inject uncertainty into who will get property and that uncertainty exists for too long Rule of Perpetuities - invalidates future interests that may vest too far into the future No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest Applies to contingent remainder and remainder subject to open Does not apply to fully vested remainders E.g. O to A for life, then to B Closed class, interest is immediately fully vested and will become possessory upon the end of A’s life estate Does apply to executory interests, contingent remainders, and vested remainder subject to open How to apply this rule in 4 steps 1) identify the future interests created by the grant Executory interests, contingent remainders, and vested remainder subject to open are subject to RAP Future interests created by the grantor are exempt from rule against perpetuities (e.g. reversions and possibilities of reverter) Reversion is for life estate Possibilities of reverter is fee simple determinable Option to purchase - right to buy property for a stated price at some point in the future Subject to rule of perpetuities Preemptive rights/rights of first refusal - allow holder to purchase property whenever the current owner decides to sell Cts disagree on whether rule of perpetuities applies 2) identify what has to happen for the interest to fully vest Fully vest - all future interest holders are ascertained and any contingencies for their ownership are removed O to A for life, then to A’s children A needs to have children for it to vest 3) identify all the lives in being at the creation of the interest Future interest is created by conveyance at the moment of conveyance Life in being refers to human life 4)see if there is any way in which the future interest will fully vest more than 21 years after the death of all the people identified in step 3 E.g. will contingent remainder vest or not, will class open up and let someone else in Remedy Strike out language that violates rule of perpetuities O to A, but if property used for nonresidential purposes, to B Some courts would strike out all language after O to A, leaving A with a fee simple absolute Exemption from the rule Future interests in grantor or heirs are exempt from rule against perpetuities O to A as longas used for residential purposes and O to A for life are permitted Absolutely vested remainders O to A for life, then to B Vested remainders subject to divestment O to A for life, then to B, but if B marries C, then property reverts to O Contingent remainders and vested remainders subject to open Others can join class Traditional wait and see Traditionally, courts strike parts from will if there is the possibility of it violating rule of perp Wait and See - don’t strike parts of will until time frame has passed Cy pres Most commonly used to reduce age contingencies that invalidate future interest E.g. O to A for life, then to first child of B to reach 25 (assuming B has no kids at time of conveyance). Would change to O to A for life then to first child of B to reach 21. Option to purchase - right to acquire property at some point in the future for a fixed price Rights of first refusal - right to acquire at market price should property be sold in future A commercial option to purchase cannot be exercised more than 21 years after its creation (Symphony Space v. Pergola Properties)

RAP Questions

O to A, but if land is ever developed, then to B. Fee simple subject to executory interest. This is subject to Rule of Perpetuities Lives in being of person named in grant (A and B) Situation in which land is developed after A and B die and then goes to B’s heirs Therefore, violates Rule of Perpetuities Could have written O to A, but if land ever developed during or within 21 years of A or B’s death, then to B to get around Perpetuities problem Ordinary remedy would be to strike violation, would then become just “O to A” Extremely formalist, does not respect O’s desire against development O to A, but if A ever seeks to develop the land, then to B Fee simple subject to executory interest. This is subject to Rule of Perpetuities Since it limits this to development by A, passes rule of perpetuities O to A for life, then to B when she reaches 25 (B is alive but is not yet 25) Life estate with a contingent remainder (contingency is B reaching 25) Contingent remainder subject to Rule of Perpetuities If A dies and B isn’t 25 yet. Goes back to O or O’s heirs as fee simple subject to contingent remainder O to A for life, then to A’s children who reach 25 Future interest in contingent remainder in A’s children Open class because more children can be born If A has some children who are 25, vested remainder subject to open A could get life estate, have child, die, then 21 years would pass before child (not in being at time of devisement) becomes 25. This violates Rule Remedy would change to O to A for life O to A for life, then to A’s grandchildren A has life estate, with pure contingent remainder or vested remainder subject to open If A has no grandchildren at the time, then pure contingent remainder and if A has grandchildren, then vested remainder subject to open Subject to rule of perpetuities in both versions A could have child after receiving grant, die, then child has a child. Violates rule, doesn’t matter that A already has grandchildren A could still get more grandchildren 21 years after their death from life not in being at time of grant Remedy “O to A for life” O to A for life, then to O’s grandchildren (devise, meaning O has just died) A has life estate, with contingent remainder or vested remainder subject to open The set of people who can produce grandchildren for O can no longer change after O’s death. Any grandchild of O will be born of a life in being at time of devising In accordance with rule If O did not give this via devise (was still alive at time of grant) this would be invalid for same reason 5 is invalid O to A for life, then to A’s first child to pass the Bar exam Life estate in A. Contingent remainder (not subject to open bc it’s first child, grant can only vest into one child of A) Violates rule Afterborn child that takes more than 21 years to pass the bar Remedy “O to A for life” The first devious below is invalid, the second two are valid. Why? O to A for life, then to A’s widow for life, then to A’s children then living (then living refers to children alive at time A’s widow dies) Not valid Scenario where A’s widow has not been born yet. A’s children could outlive A’s widow for more than 21 years Must wait lifetime of someone who isn’t necessarily in being at time of grant (widow) before we know when grant gets vested Remedy “O to A for life, then to A’s widow for life” O to A for life, then to A’s widow for life, then to A’s children (valid) Not asking what it takes to come into possession, asking what it takes to vest. Just have to be a child of A. At the end of A’s life we know who is filling out future interest in grant O to A for life, then to B, (who is A’s wife) for life, then to A’s children then living (valid) Life estate in A At time of B’s death, will O to A for 1,000 years, then to B A for a term of years. Future interest vested in B. Valid The issue is not time but uncertainty

Nuisance

Nuisance - substantial and unreasonable interference with the use or enjoyment of land There is a 3-prong test for nuisance: 1) which interests constitute the use and enjoyment of land? 2) Is the activity causing substantial harm? The standard of substantial is how a reasonable person would enjoy there land, does not include people who are unduly sensitive 3) Is the harm unreasonable? Free use rights must be limited when the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation Provides remedies for conduct that causes unreasonable harm to the use and enjoyment of land Can take into account the way people enjoy their land Dobbs v. Wiggins - dogs barking impaired way people sat outside, went on walks, etc. The standard does not apply to those who are unduly sensitive 5 Factors (Woods v. Khan) Is D engaged in a useful enterprise? Is the area suitable for this kind of activity? What came first? You or the activity? Can the nuisance created by the activity be reduced? Is modification of the activity practical? Colloquial questions to ask when determining whether there is a nuisance issue How long has this been going on? Have you asked them to do anything about it? Is there anything you think your neighbor could do to improve things? Has he done anything to try and make things better? What can’t you do anymore on your land that you used to be able to do? Is that something people do around there? Why are they doing this? Remedies Of 2 conflicting uses, one prevails and can shut down the other (Dobbs) Of 2 conflicting uses, one must pay damages to the other but can keep operating (Boomer) Courts will typically not grant an injunction if it would hurt the public interest Sunlight Modern rule is that sunlight has use beyond aesthetic appeal (Prah v. Maretti) Damnum absque injuria - injury without damage (Fontainebleau v. Forty-Five Twenty Five) There is no legal right to the free flow of light and air from adjoining land (Fontainebleau) Nuisance organizes a messy set of facts into distinct columns Reasonable Use - each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable (Armstrong v. Francis Corps - development company channeled water from stream so that it eroded Ps land, was a nuisance)

Support Rights

Support for land is strict liability Where land in its natural state could support a building, an excavator who causes harm to the building via land slippage is strictly liable for the damage to the building (Noone v. Price - a retaining wall was built before Ps house. D had no obligation to repair the retaining wall to support Ps house.) D only had to make the land wall strong enough to support P’s land itself minus the subsequent buildings Support for buildings is based on negligence If a landowner is negligent in his withdrawal of water from beneath his property he is liable for the harm that is the proximate cause of that negligence (Friendswood Development Co. v. Smith-Southwest Industries - D pumped a ton of water from nearby land with knowledge that it would cause subsidence) Weird quirk in that rule was applied prospectively so D was not liable despite being negligent. So the result is inconsistent with the rule. This rule is influenced by the law of capture. You can pump out water, but don’t be dumb about it at other’s expense Dissent in Friendswood doesn’t want it to be able law of capture but to be about the right to subjacent support Easement - limited right to do something on, or control the use of someone else’s property Negative easement - right to prevent someone from doing something on their own property Right of way - right to go onto someone else’s property Affirmative easement - right to do something on someone else’s property Owners that withdraw lateral support for neighboring land are strictly liable for any resulting damages to the land Noone v. Price - Damages for harm to land and to building if harm was caused by removal of lateral support. Just have to show that neighbor caused subsidence. If you excavate land, sell it, then neighbor’s land subsides due to your excavation, you are still liable Purdy said there are high information costs and nagging uncertainties about the qualities of land that influence this doctrine Water and Flowing Resources Common enemy rule - can do whatever you want with surface water on your land Like pirates, enemy to all, free to deal with as you see fit Promotes unhampered development (The D in Armstrong v. Francis Corp was trying to develop land) Natural flow rule(civil law rule) - can’t substantially change the natural flow of surface water. Provides absolute protection for neighbors Lateral rights rule provides absolute protection for neighbors too (Noone v. Price) Reasonable use rule - Balance right to deal with surface water versus effect it has on others Look at the amount of harm caused, purpose, foreseeability, utility, cost, etc. Similar to the nuisance test. Rights are relative and the court determines which right should prevail Armstrong v. Francis Corp. sets out this rule. The defendant developed a drainage system that turned a “babbling brook” into a gross drainway There are formal realizability issues with this test because it is difficult to apply as opposed to the other bright line rules There is a default that people use their land reasonably as not to significantly disrupt others enjoyment of their land Law of capture - owner of land acquires title to oil or gas he produces from wells on his land, though part of the oil or gas may have migrated from neighboring lands. Can draw out oil as long as the extraction process is not excessively wasteful or malicious (Eliff v. Texon Drilling Co.) Intended to settle dispute when neighbor claims driller stole their oil, water, etc. What happens on the surface dominates, you don’t know what’s going on down there Not possible to make extremely nuanced decisions about underground resources In the future, it could be possible to determine what happens when underground resources are extracted Negligent waste and Destruction Exception - the law of capture does not give permission to negligently waste or destroy gas that was under Ps land (Elliff v. Texon Drilling Co. -oil companies negligently caused the waste of a lot of gas from under the neighbor’s land. Oil companies responsible deemed liable) Prior Appropriation Doctrine - designed for scarce resources and holds that the first person to make beneficial use of a resource has the unconditional right against any later use The law of capture falls under this doctrine Once an amount of water has been used by another landowner, the rights to the water run with the land (State Dept of Ecology v. Grimes - a referee put restrictions on the amount of water D could use even though he was first to use it) The amount of water a landowner holds the rights to is determined by their beneficial use of the water. In assessing beneficial use, look at 2 factors The purpose for which the water is used The reasonable use of the water for that purpose, which is determined by water duty and waste Puts people on notice that resource is being used

Adverse Possession

Elements of adverse possession (Brown v. Gobble) Actual possession/Claim of right Adverse possessor must physically occupy the land and put it to “ordinary use to which the land is capable and such as an owner would make of it” (Nome - Alaskans occupied company land) In some jurisdictions, there is a good-faith requirement In a sense actual is very redundant, doesn’t really make a difference in the doctrine Open and notorious Need to show that reasonable inspection would lead one to believe that property is adverse possessors Does true owner have the opportunity to object It seems like this is the most important element based on Purdy’s comments Exclusive Use is of of a type that would be expected of a true owner of land in question (Nome - it’s ok that hikers came through the land) Sharing isn’t a problem, but it depends on who gave permission for the sharing Doesn’t mean you’re the only one on land but if you’re acting like you have the exclusive power to share land with others Not required in prescriptive easements Continuous Can slide into exclusivity Just as continuous as one would expect (Nome v. Fagerstrom - only used the property seasonally bc it got so cold in the winter) Adverse or hostile Much disagreement. The true owner must not have given permission to the adverse possessor to use the property. Lack of permission from the owner is presumed. Most states use an objective test to assess the adverse possessor’s state of mind Color of title - the deed is wrong but everyone honors it. Then possession is adverse. (Romero v. Garcia ) A void, unsigned deed is sufficient to create color of title if a surveyor can ascertain the boundaries of the property using property description and extrinsic evidence (Romero v. Garcia - spouse did not sign deed and made it voidable yet there was adverse possession under color of title) For the statutory period Includes tacking - succeeding periods of possession by different persons may be added together only if they are in privity with another (purported transfers) (Brown v. Gobble - prior owners had used the property up to the fence line, tacking allowed D to reach statutory period) Some states have limitations depending on whether possessor has acted under “color of title” or has paid property taxes on the land This is not like nuisance where you weigh factors, you just have to satisfy elements Possession must be without the permission of the true owner Quiet Title - adverse possessor seeking declaratory judgement that adversely possessed land is theirs. In cases where parties intend to transfer a property interest but fail can be seen as a special case of adverse possession in which adversity (nonpermissiveness) is not required Color of Title - when one appears to have title to property but does not hold title to property (adverse possession) or the written documents of title are ambiguous, or seriously flawed in other ways Romero v. Garcia - A couple gave their land away yet both husband and wife did not sign the grant. There was a paper trail to indicate intent to transfer title but the trail is defective in some way Color of title gives the courts the ability to shore up flawed transfers, courts apply a more lenient adverse possession test in these cases Intentional dispossession - do not have to know Objective Test - is the adverse possessor behaving like a true owner without the permission of the actual owner Sort of captured by adverse possession factors, does not look into the head of adverse possessor Subjective test - is adverse possessor knew they were trespassing, they cannot exercise claim of right Adverse possessor is either an owner or a trespasser Why Adverse possession is a welcome departure from other property principles: Up until this point, what an owner does with their land is none of the court’s business unless the owner’s use is actively hurting someone else’s use of their property. A prevailing theme is that you can’t peer into the black box of land use unless it actively hurts someone else’s enjoyment of their land. Adverse possession circumscribes the boundary of this principle in that you need more than just ownership. The court abhors fallow land. This principle is simultaneously production driven and anti-capitalist. Production driven in that an adverse possessor is deriving more from the land than the current owner. Anti-capitalist in that the accumulation and hoarding of land is mitigated via this doctrine. The courts do not have the capacity or resources to conduct a comprehensive utility maximization analysis (they do so for sticks in the bundle in nuisance cases). However, they have decided that one does not derive utility from complete lack of use. Failure to exercise any of the sticks in your bundle of rights means someone can exercise estover and pick them up for themselves. Servitude:Easements Servitude - right that runs with the land. Impositions upon property for the benefit of another person or piece of land. Affirmative servitudes - rights to use another’s land for a limited purpose, called easements Easement - nonpossessory rights to use another’s land for a limited purpose Easements - they are usually access rights and sometimes right to profit Right of Way - the right to use one’s land for ingress or egress Profit - the right to use land to collect resources Appurtenant Servitude - when there is a benefitted estate. (easement runs with land) Appurtenant easements can always be subdivided unless the instrument explicitly restricts it (Cox v. Glenbrook - Cox tried to develop area and right of way easement would have extended to each home of his land) However, the courts can restrict scope of easement (Cox v. Glenbrook - effectively precludes infinite subdivision of easement bc Cox couldn’t widen road) When the benefit is attached to a person rather than the land the easement is in gross Personal In gross easements cannot be transferred Exclusive Commercial In Gross easements can be apportioned (Henley v a Continental Cablevision - telephone and utilities companies apportioned their easements to a cable company to put in tv wires) Apportioning easements An easement holder may license others to use it as long as the use is consistent with the use originally granted (Henley - courts don’t want to stifle technological progress and the fact that TV didn’t exist at the time of the creation of the easement is not dispositive at quelling apportionment) Easement are exclusive to the easement holder and therefore devisable if the easement grantor does not maintain or reserve an interest in exercising the right granted (Henley - grantors already gave up easement. Also, fuck are the landowners gonna do with a cable-sized area under the ground and up a pole, idk why this case was brought in the first place, did the TV cables look bad?) Many easements can be inherited or bought Easements in gross cannot be sold Easements cannot be given verbally, must be in writing License - limited rights to enter or use land that do not run with the land and are usually revocable at will by the grantor Easements created by express agreement run with the land if 3 conditions are met They are in writing There is notice Actual Notice - you tell subsequent owner about easement Inquiry - the subsequent owner should have asked after seeing something like telephone poles on property Constructive/record - is reasonable search of registry would show easement in deed It was intended to run with the land Court can infer presence of lack of intent from circumstances Implied easements - there are 4 ways in which courts can recognize unwritten easements Estoppel - when claimant relies upon promised easement. Can be implied when 3 conditions are met 1) the owner of the servient estate permitted another to use land where it was reasonably foreseeable that the user would change positions 2) The user substantially changed position in reliance upon promise 3) Injustice can be avoided only by establishing easement Lobato v. Taylor - pioneers settled land in reliance upon promised easement. Was foreseeable. (There was a prescriptive, estoppel, and prior use easement in that case) Holbrook v. Taylor - Neighbor gives permission to P to cross their land to build home on a lot then rescinds permission. Easement created via promissory estoppel bc P spent money on building home and making road through neighbor’s property. (546) Prescription - adverse and open use of land continuously until the expiration of the statute of limitations for trespass The same elements of adverse possession except you only need to show use, not possession. (Actual, open, adverse, continuous, SOL) Most courts drop the exclusivity requirement too Lobato - continuous use under an intended but ineffective grant is adverse Granite Properties Limited Partnership v. Manns Only the general outlines rather than the minute details of the interest need be present to establish easement by prescription (Community feed v. N’easter - business claimed easement over part of driveway but didn’t specify how much of the driveway, this didn’t preclude them from getting easement by prescription) Prior Use - when a parcel of land is divided and use of one part of the divided parcel is needed by the other in order to reasonably enjoy use of the estate. 5 conditions must be met (p553) 1) Servient and dominant estates were once under common ownership 2) the rights alleged were exercised prior to the severance of the estate 3)The use was not merely temporary 4) The continuation of use was reasonably necessary to the enjoyment of the parcel 5) a contrary intention is neither expressed not implied Granite Properties Limited Partnership v. Manns - elements of prior use. Case in which P sold some of its property and lost access to gravel driveway. Ruled in favor of P. Prior use elements in Granite are: Common ownership of claimed dominant and servient parcels and subsequent conveyance or transfer separating that ownership Common owner used part of united parcel for benefit of another part and this was apparent obvious, continuous, and permanent, The claimed easement is reasonably necessary to enjoyment of parcel conveyed Prior use argument can be defeated if easement is expressly rescinded in transfer of property Lobato - land was under common ownership, rights exercised prior to severance, and use was not temporary and necessary to enjoyment of land Necessity - when an estate is severed and one part of the state becomes landlocked, requiring right of way. 2 conditions must be satisfied. 1) The dominant and servient estates were formerly one parcel 2) At the time of severance, the dominant estate became landlocked If it becomes landlocked after severance, you’re screwed Easement of necessity is appurtenant (Finn v. Williams - Williams sold the landlocked parcel to the Bacons and the Bacons sold to the Finns. Finns still had necessity over Williams) Purdy - implied easements have enormous applicability for unexpected situations (e.g. Lobato v. Taylor) and is still good at dealing with mundane situation (Granite Properties v. Mann) Ambiguous easements Green v. Lupo - Neighbors received easement, built mobile home development, and residents of the development used easement. The court tried to discern intent of parties by looking at language of the instrument and ruled that the easement runs with the land If easement is intended to benefit parcel of land, it runs with the land Seems as if court errs on the side of appurtenant easement and wants land to have access to means of ingress and egress and utilities If easement is intended to benefit current resident, it is in gross Scope of easement Cox v. Glenbrook Co. - A developer purchased land with an access easement and tried to widen the road. Was not permitted to do so because it went beyond the scope of the easement Henly v. Continental Cablevision - a company could add TV cables to its easement Easements are like wills (Cy pres) Dominant estate - estate that has easement over the servient estate Prescriptive Easement - narrow use of another’s land The elements necessary to establish prescriptive easement are essentially the same as those necessary to establish adverse possession minus exclusivity (Community Feed Store v. Northeastern) Where one claiming a prescriptive easement proves the general outlines of the area of his continuous, adverse, and notorious use with reasonable certainty, that is sufficient to establish the claim (Community Feed) Most state presume non-permission if other elements of prescription are satisfied Elements are open, notorious, hostile, and continuous use over statutory period No exclusivity requirement, as is required for adverse possession Must act like you truly own an easement Most easements deal with access to roads or infrastructure Easements tend to prioritize access

Servitudes:Covenants

Covenants - negative servitudes Equitable servitudes - covenants that could be enforced by injunction despite the lack of privity Intent to run (presumed) Writing Touch and concern Notice Formal Requirement of real servitudes/convenants (relief is damages) Writing There is an unofficial hierarchy of writing. E.g. a marketing brochure promising restrictive covenants would probably not override a deed in which no restrictive covenant is given P. 575 problem Notice Intended to protect the owner of the servient estate Actual notice Inquiry notice - purchaser ought to notice that there is a covenant and should ask about its parameters Constructive notice Intent Most courts err on the side of appurtenance P 577 problem - the covenant is intended to keep a particular purchaser from putting the land back onto the market. There is probably no covenant Privity Horizontal privity - one piece of property is burdened for the benefit of another A covenant contained in a deed of sale transferring a property interest will satisfy the horizontal privity requirement Instantaneous horizontal privity - established at point of sale P 577 (b) - no horizontal privity but could still argue that there is an equitable servitude rather than a real servitude. There was notice bc C knew of covenant Horizontal privity serves as a notice mechanism bc subsequent owners will be able to see the covenant in the deed Vertical privity - benefits and burdens run to succeeding owners of both parcels Includes sale, lease, inheritance, and foreclosure but not adverse possession Strict vertical privity - requires grantor to not have any future interest in land. So vertical privity when be present when land is sold but not when it is leased. Not all states follow this standard Neponsit - homeowners associations can enforce covenant even though it doesn’t own any property Substantive Requirements Touch and Concern test - the covenant must touch and concert both the burdened and benefited land If a covenant is to pay for a cost that goes to the benefit of the land, then it touches the land (Neponsit v. Emigrant Industrial - had to pay a fee to homeowner’s association that went to improving the development) Covenants by implication Implied reciprocal negative servitudes - implying that when an owner sells a number of parcels with evidence of intent to create a common plan of development, covenants made to the seller benefit all parcels and all parcels within the plan are bound to the covenant This gives a buyer of a parcel within the common plan the power to enforce reciprocal covenants throughout the development Implied restrictive negative easement Implied restrictive covenants do not necessarily apply to the whole subdivision (Evans v. Pollock - the hilltop of a subdivision was commercially developed yet the lakefront areas all had covenants prohibiting commercial development. The hilltop was different enough that an implied reciprocal covenant did not extend to it Who can enforce a covenant? A homeowner’s association can be a medium through which property owners enjoy their common right, thereby satisfying the privity requirement (Neponsit - the homeowner’s association was allowed to represent the owners even though the association didn’t actually own any of the property in question) Earlier purchasers can’t enforce covenant against later purchasers but later purchasers can enforce covenant against earlier purchasers No one can enforce the covenant against final purchaser (number 42) When O sells to 1, it imposes covenant standards upon lot 1. There is a reciprocal effect. There is an implied covenant that O must abide by the covenant for the remaining land Implied reciprocal negative servitude - 1 is not just the holder of a servient estate with relation to O. 1 is the holder of a dominant estate and can enforce covenant against 2, 3,...42, etc.

Covenant Problems

Problems on p577 The deed for a historic house provides that the owners must always hang a portrait of the original owner Must link this covenant to the neighbors’ enjoyment of their own properties The historic character of a house can redound to the neighboring properties. The covenant is trying to preserve the historic nature of a neighborhood However, this is a difficult argument to make, the covenant most likely does not touch and concern the benefitted land because typically, they would not receive any benefit from peeking in the window and seeing this portrait

Restraints on Alienation and Substantive Limits on Covenants Each owner (of a condo) must give up a certain degree of freedom. Condo owners are a little democratic sub society of necessary more restrictive as it pertains to use of condo property. (Hidden Harbour Estates, Inc. v. Norman) Reasonableness test (p603 reasonableness factors) If a covenant is extremely contrary to public policy (balance of harms analysis) it can be struck down (Davidson v. Katz & Sons - covenant created a food desert in the downtown area, not valid) Not against public policy to restrict sex offenders from a residential community (Mulligan v. PAnther Valley Property Owners - the negative policy impacts of the covenant were not sufficiently shown) I don’t like this bc rationale could be used to exclude those with criminal histories from living in certain areas. Courts look at the rule generally and not how it would apply in a specific case (Nahrstedt - a covenant precluding pets was deemed reasonable even though the pets in question did not pose a nuisance to neighbors.) This gives covenant makers a lot of discretion and power There is a presumption of reasonableness akin to the rational basis test in con law Balances the importance of the rule’s objective against the importance of the interest infringed upon (O’Buck v. Cottonwood Village - an antennae ban was upheld) Rules can be justified on aesthetic grounds Placing a small financial burden upon residents is acceptable (O’Buck) A condo prohibiting types of assembly that would have a divisive effect on the community is reasonable (Neuman v. Grandview - upheld condo’s ban on using the auditorium for religious gatherings) Condo associations can do essentially whatever they want Indirect restraints of alienation - private controls on land that make property less alienable by eliminating buyers who do not want the land with the restrictions Restraints on alienation Restraints on alienation cannot be imposed on a fee simple (Northwest Real Estate v. Serio - D conveyed fee simple with restriction on alienation clause, court struck the clause from the deed) Dissent said restraint clause gave real estate developer power to control the character of its development. (Racist) Condos can impose some moderate restraints on alienation as long as it satisfies the reasonableness test (Woodside v. Jahren - condo constitution was amended to prohibit leases to third parties lasting more than 9 months, deemed acceptable) Condo constitutions are super powerful and presumptively valid Anticompetitive Covenants - Covenants are unreasonable restraints on trade only if they violate the “rule of reason” (649) Modifying Covenants If the character of the community has so radically changed that the covenant will be of no substantial benefit to dominant estates, then the restriction may be voided (El Di, Inc. v. Town of Bethany Beach - prohibition of alcohol sales no longer benefited the community) Parties can pay for the right to violate a covenant even if the benefit of the covenant still exists for the aggrieved party (Blakeley v. Gorin - D wanted to build a bridge across an alley in violation of a covenant, had to pay those whose access to light and air was blocked) Enforcing the covenant is no longer feasible given surrounding development and would preclude use of a vacant lot The courts appear to take approach similar to that in nuisance law (Boomer) Written and Oral Promises Oral promises are not usually enforced (Burns v. McCormick? - an old man promised a couple that he would grant his land to them if they took care of him) The couple’s actions do not indicate that they that they had been promised land, there could have been a number of reasons for their behavior Oral promises may be enforced if a party detrimentally relied upon promise and another party would reasonably know of such reliance (Hickey v. Greene - oral agreement to sell land, deposit was given, buyers sold their house, awarded specific performance when sellers tried to back out) A seller must disclose facts 1) materially affecting the value or desirability of the property that are 2) not observable or 3) known to the buyer (Johnson v. Davis - buyers were entitled to their money back when the seller did not disclose that the roof had to be replaced) Limitation of caveat emptor

Covenants Class Exercise

Davidson (602) - food desert Cov violates public policy Established via writing Private market participants can generate market power for themselves to set the rules of the market. The tools of market efficiency limit market efficiency The covenant had negative externalities on third parties Nahrstedt - cat case (607) Cov based in declaration of common interest development Standard of reasonableness Cov upheld O’Buck (617) - banning antennae Covenant came about via condo association rule. Not part of the original declaration but passed under the condo “constitution” Language of reasonableness was central Cov upheld Neuman (620) - restrict religious services Covenant came about via condo association rule. Not part of the original declaration but passed under the condo “constitution” Language of reasonableness Looks at state statute Serio (638) - put alienation restrictions on a fee simple Classic cov agreed between buyer and seller Voided because a restriction was put on alienation because a fee simple can’t be unalienable The court wants property to be changing hands. The power of alienation is inalienable The court doesn’t want to lock people into their property Woodside (640) - renting out condo restrictions Amendment to condo rules. Restricts alienation by prohibiting rentals, not sales. Adopts the political theory of condos quite broadly, weakens the distinction between condo original declarations and condo rules El Di (650) - Selling alcohol in beachside community Changed conditions doctrine - will the purpose of covenant be able to be achieved? The community has not changed enough Language of reasonableness no enforceable covenant, dissolved altogether Blakely (658) - development blocks light source to apartment Changed conditions doctrine Allowing the classic injunctive form of covenant would create such an undesirable skew between benefit and burden that the remedy has shifted to one of damages for the benefitted property Interpreting a state statute The hotel had to pay for the right to build the bridge (Like Boomer) All these cases are decided with different judicial styles What statutes the court looks to show that there are arguments on both sides. E.g. in Davidson, the court could have looked at authorities heralding the value of contractual freedom Generally, condo restrictions do not get struck down. Courts are extremely deferential to condominiums All the non-commercial covenants succeed There is a hierarchy of the power to produce binding covenants Condo declarations are at the top Then condo rules Then ordinary covenants between buyers and sellers Changed conditions - when the world around the neighborhood has changed so that the covenant no longer makes sense Covenant may become an idiosyncratic value holder that restricts development of neighborhood that is consistent with what has been happening in the surrounding area Either dissolve the covenant altogether or adopt a more Boomer esque remedy in which the party in violation pays for the right to continue to violate What themes are present with these cases? Efficiency Autonomy

Real Estate Transactions

A seller must disclose all material facts relevant to the purchase (Johnson v. Davis) Title based on adverse possession is marketable if adverse possession can be clearly establish (Conkaln)

Real Estate Transaction Problems P927

After signing an offer to purchase real estate but before executing the Standard Form Purchase and Sale Agreement, the seller receives a much higher offer for the property and would like to accept it. The seller cannot do so. The buyer pays a deposit to bind the seller. The buyer has purchased the right to purchase the property at a certain price. If the buyer wanted to buy another property they could but they would lose their deposit. This stabilizes the situation while the rest of the details are ironed out. Assume the parties sign the SFP and SA the buyer is concerned about possible environmental conditions on the property and wants to have an environmental consultant conduct an inspection. What if the seller told the buyer before they signed the contract that “there is nothing to worry about” in response to a question by the buyer about these environmental concerns? (similar to Johnson v. Davis) What may the buyer do before closing? There is an inspection guarantee. What liability is there if there are real problems and the buyer has relied upon seller’s representations? § 21 Purchase and Sale Agreement, buyer gets deposits back if there are serious problems § 25 merger clause Information imbalance. The most trusting buyers who don’t do inspections may lose out. Traditional requirement is that only fraud allows remedy but modern version requires sellers to disclose latent defects that may be material to sale. The seller’s property is damaged in an electrical fire a week before the scheduled closing. Does it matter whether the seller had property insurance? § 12 addresses fire §9 and 10 says property must be delivered in state that it was when SFPSA was signed. Buyer has option to dissolve agreements if the condition is not present. If there is no insurance, the seller has breached obligation to maintain insurance on the property as stipulated in the SFPSA (§ 15) Once deed is accepted, sale is complete and seen as a full performance and discharge of the SFPSA (§ 13) The buyer, in examining the state of the property’s title, discovers a judgment lien against the property arising from a tort suit between the seller and a third party. Seller has obligation to remove lien (under § 10) within 30 days or buyer can back out of sale and get refunded The buyer unexpectedly loses her job shortly after signing the SFPSA and is now unable to obtain the loan that she thought she could. § 26 - if good faith effort is made for financing but buyer can’t get it, buyer gets a refund. The seller agrees to remove an old outbuilding from the property, but says that he needs another two weeks after closing to complete the project.

Recording Acts and the Title System

Recording Act - central registry for each locality Recording - submitting a document to the registry A subsequent interest holder who has no notice of a prior conveyance and who records his interest will prevail over any prior unrecorded interest Tract - the simplest way to index is to file by tract. Grantor-grantee index - You need to use both indices when conducting your search Grantor index - all instruments are listed by grantor’s last name Grantee index - listed by grantee’s last name Marketable title acts - time period beyond which interests are lost if they are not re-recorded The search of the grantor index starts at the date of execution and not the date of recording Race statutes whoever records first prevails (Only in LA and NC) O conveys to A who does not record. O then conveys a second time to B. B knows of the earlier conveyance to A. B records the deed from O to B. In a lawsuit between A and B, B prevails. One point of the race is to notify subsequent purchasers. Notice Statutes - a subsequent purchaser prevail over an earlier purchaser only if subsequent purchaser did not have notice of earlier conveyance O conveys to A, who does not record. O then conveys to B. B does not know of earlier conveyance. B prevails over A even though B does not record the deed from O to B. B also prevails over A even if A later records her deed from O to A before B records her deed from O to B Knowledge of notice is required prior to conveyance rather than prior to recording (e.g. O to B and B didn’t know of any prior conveyances, then B finds out that O had conveyed to A before recordings. B still has superior claim to A.) Race-notice statues - subsequent purchaser prevails if she had no notice and records before the prior instrument is recorded O conveys to A, who does not record. O then convey to B. B does not know of earlier conveyance. A records, then B records. A prevails. Estoppel by deed - If O purport to convey to A but does not own the property, A gets nothing. If O later obtains title from B, the title immediately vests in A. O is estopped from asserting ownership rights against A. Traditional rule (Nemo Dat) - the first buyer has the right to the property. Any subsequent buyer does not, because the seller had no property to give. Efficient, reliable, and reasonably accessible databank of who owns and therefore has the authority to transfer property If you conduct a search of reasonable scope to determine what the property interests in a parcel is, you have the right to then purchase that property if you found no competing interests If you fail to record your purchase, you risk your purchase being superseded You want people to record their deeds as soon as possible and you want people to have confidence that their purchases will not be disputed if they conduct a search and find nothing A deed recorded outside the chain of title does not give constructive notice (Sabo v. Horvath - Horvaths did not record their re-record their deed, had to re-record bc of quitclaim, before Sabos’ recorded. Sabos had no knowledge of transfer to Horvaths so Sabos’ recorded interest prevails) We should not have had this case, a simple principle made more difficult to discern bc of all the quitclaim stuff

Recording Acts Problems (1007)

O to A (A does not record). O to B (B has notice of the earlier conveyance to A). B records. A records. B sues A for title. In race - B wins, bc B records first In notice - A wins, bc B knows of prior conveyance Race-notice - A wins, bc B knows O to A (A does not record). O to B (B has no actual notice of the earlier conveyance to A). B records. A records. B sues A for title. Race - B wins Notice - B wins Race-notice - B wins O to A (A does not record). O to B (B has no actual notice of the earlier conveyance to A). A records. B records. B sues A for title. Race - A wins Notice - B wins Race-notice - A wins O to A (A does not record). A to B (B records). O to Z (Z has no actual notice of deed from O to A; Z records). B records deed from O to A. B sues Z for title. Race - Z wins, B records wild deed, Z just needs to record before B records deed from O to A. Z would have no way to know that B had recorded, therefore notice is baked into race statute. The way you win the race is by recording a deed that completes a chain of title. B did not complete chain of title by recording their deed. Notice - Z wins. Z had no notice of O to A and therefore A to B. Race-notice - Z wins. O to A (A does not record). O to X (X has notice of conveyance from O to A). X records. A records. X conveys to Z (Z has no actual notice of deed from O to A). A sues X and Z for title. (Assume Z has recorded). Race - X got there first. X has superior claim and therefore Z has superior claim too. X and Z win. Notice - Since X had notice X would not lose. Z looks in grantee records from X on back. Then looks forward in grantor records and does not find O to A before O to X and therefore Z can stop looking. Therefore Z has no constructive notice. Z wins, X loses. The policy rationale is that Z is an innocent buyer Race-notice O to A (A does not record). O to X (X has notice of conveyance from O to A). A records. X records. X conveys to Z (Z has no actual notice of deed from O to A). A sues X and Z for title. Race - A wins over X and Z Notice - A wins over X and Z Race-notice - A wins O to A (A does not record). O to X (X has no actual notice of conveyance from O to A). X records. A records. X conveys to C (C has notice of conveyance from O to A). A sues C for title. Race - C wins. X recorded before A, X became owner. Notice - C wins. Shelter exception - C can use X’s good faith purchase as shelter from notice requirements. X should not have restraints on alienation due to other people knowing about O to A. This prioritizes constructive notice over actual notice. Race-notice

Fair Housing Act and Zoning

Is primarily aimed at express forms of discrimination and does not address exogenous contraints to obtaining adequate housing Real estate markets are very much influenced by municipal rules (e.g. zoning laws) Definitions Dwelling - touches everything that is on the real estate market Family - includes a single individual §3604(b) - it is illegal to pring or publish anything with respect to the sale or rental of a dwellling that indicates preference based on race, color, religion, sex, disability, familial status, or national origin Familial Status - living with someone under the age of 18 §3603(b)(2) §3604 - Discrimination in sale or rental housing and other prohibited practice. Names a series of moves that sellers are prohibited from making based upon a prohibited characteristic B) cannot advertise in a way that indicates prohibited preference Three-part burden of proof analysis for racial discrimination from McDonnell? Douglas Corp. v. Green and applied in Asbury v. Brougham (a black woman was not even shown listings when they were available) 1)P must come forward with a prima facie case of discrimination. To show prima facie evidence of discrimination, P must prove that: 1) They are a member of a racial minority 2) They applied for rental/housing/etc. 3) They were denied the chance to rent or to inspect or negotiate for the housing 4) The housing remained available to others 2)The burden then shifts to D to justify action with legitimate nondiscriminatory reasons 3)If D justifies action, burden shifts back to P to show that the reasons were merely pretext Permitting only 2 people in a mobile home is pretext for familial discrimination when the statute perpetuates previous conditions brought upon by express preclusion of children (Human Rights Commission v. LaBrie? - used to have no kids policy and had to change it to only 2 residents policy. Said it was for septic rationing reasons) Claiming that P violated policy is not legitimate if exceptions to the policy were very common (Asbury - many people had children and were black in townhouses) Disparate Impact - evidence of a discriminatory practice prior to civil rights legislation coupled with a post-legislation pattern of maintaining the status quo canestablish intent to continue discrimination via neutral policy (LaBrie? - had no kids policy, changed to 2-person limit, and there was only 1 other kid in the park) Disparate Treatment Exceptions Roommates are exempt from the FHA because legislation is not allowed to intervene into the privacy of the home (Fair Housing Council of San Fernando Valley v. Roommate.com LLC - allowed people to put familial preferences in their roommate applicaitons) The contours of the FHA abuts the bounds of constitutionally protected right to privacy and intimate association in one’s own home Zoning Zoning regulations must promote the general welfare (NAACP v. Mt. Laurel - zoning laws excluded all but middle and high income residents in effort to increase tax base) The general welfare is not promoted at the expense of the exclusion of a class of people This was held via an interpretation of a state constitution, not the federal constitution “Inclusionary” zoning is a minority rule

Takings

5th amendment - “nor shall any property be taken for public use, without just compensation” Conceptions of justice and fairness are at the heart of the takings doctrine A taking must satisfy the public use restriction (Kelo v. City of New London) It is only the takings purpose and not the mechanic that matters in determining public use There is deference to the legislators, similar to rational basis review Regulatory takings Holmes first discussed this in PA Coal Co. v. Mahon Historically, the state did not have to compensate private owners for loss to their property that occurred via regulation E.g. city banned alcohol production and did not have to compensate brewery for losses (Village of Euclid v. Ambler Realty Co.) Denominator - how one describes the property that is being regulated Is usually seen as the parcel as a whole and not just a part of it (Palazzolo v. Rhode Island - state regulation precluded developing the vast majority of P’s land but not all of it, deemed not a taking) Land-use regulation does not effect a taking if it “substantially advances legitimate state interests (Lucas v. South Carolina Coastal Council) This basically means that if the state prohibits doing something that the courts would also prohibit (e.g. causing a nuisance) it’s not a taking Acquisition of title after a regulatory law was passed did not protect the state from a takings claim (Palazzolo v. Rhode Island) Most regulatory takings cases are analyzed under an ad hoc test focusing on three factors: (Penn Central Transportation Co. v. New York City 1) The economic impact 2) The protection of reasonable or distinct investment-backed expectations 3) the “character of the government action” Categorical takings - situations that will almost always be takings per se 1) When there is a government mandated permanent physical invasions of property (Loretto v. Teleprompter Manhattan CATV Corp. - requiring landlords to install cable facilities on property is a taking) Pumpelly v. Green Bay - statute authorized canal company to build a dam and flood land Antidiscrimination laws have led to permanent occupation by parties owners would prefer to exclude but are not takings (Heart of Atlanta Motel) 2) When the owner is completely deprived of all economically viable use of her property unless background principles of nuisance and property law independently restrict the owner’s intended use of the property If anything less than 100 percent of the economic value is taken via a regulation, then the court applies the Penn Central Test (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency - temporary moratorium on development around lake not a taking) Ripeness - if the agency empowered to regulate the land has not made a final decision as to the scope of the permitted development, it is not “ripe” for a takings claim There are limitations. A state can’t continually deny development permits and claim that a takings claim isn’t ripe (Palazzolo - court deemed the claim ripe after local gov. denied a ton of development permits) This is so antithetical to Steenberg, why does inherent value to privacy of property get thrown out the window when calculating just compensation for takings? I guess it would preclude the practice via prohibitive expense This would actually be reconcilable with Steenberg bc the state is “the people.” Maybe the distinction is that a private party cannot pay to trespass but “the people” can bc the party who’s having their land invaded was complicit in the social compact (Hobbes) that gave rise to the state apparatus that has retracted a stick or shard from the bundle of rights

Miscellaneous

Doctrine of discovery - the first European to see land possesses the exclusive right to acquire title vis-a-vis any other European, subject only to Indian right occupancy (Johnson v. M’Intosh - Johnson got land from Indians but his claim of title does not hold up over M’Intosh who got the land from the gov.) This doctrine undergirds the entire property system but is not frequently acknowledged

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