Michael Silver

Spring 2002
Professor Dawn Nunziato

PROPERTY OUTLINE
I. Adverse Possession and Intellectual Property
A. Adverse Possession
1. Non-owner can acquire full ownership rights in real property if non-owner
possesses property without permission by formal title owner in a visible manner
for a period of time established by statute
a. Adverse possession claims cant be made vs. government
b. Person who acquires property inherits encumbrances.
2. Elements
a. Actual Possession. Must assert general ownership of parcel in question.
Differs f/ prescriptive easements, which are for limited use. Can be
negative (right to prevent someone from doing something to their
property) or affirmative (only acquired by prescription)
b. Open or Notorious. Notice given. Could be constructive.
c. Exclusive of the true owner. Cannot be shared with true owner. Often that
use was personal and not shared by general public.
d. Continuous. AP must exercise control over property customarily pursued by
similar owners. Not required to occupy land 24/7. Could be seasonal.
Tackings doctrine: succeeding periods of possession may be added
together, but only if successor in privity with original owner (i.e. original
adverse possessor transferred title of property to successor)
e. Adverse. Without permission of true owner. 3 tests:
Bad faith trespassor (subjective): adverse possessors know land not theirs
Good faith trespassor (subjective): only innocent possessors can gain
property via AP.
Lack of permission of true owner (objective): state of mind irrelevant.
Possession of anothers property presumed non-permissive. Majority rule.
Exceptions: (1) use understood to be permissive (i.e. common area of
shopping mall), (2) co-owners (need explicit ouster)
e. For the Statutory Period. Usually 10, 15, or 20 years. SOL often tolled if
true owner under disability b/c of infancy, incompetency, insanity, imprisoned
3. Theoretical Justifications: AP uses land efficiently. Protecting settled expectations
and reliance interest of adverse possessor. Substantive statement @ property:
people should have some attachment to it. Dont want idle land.

Nome 2000 v. Fagerstrom

Nome owns land suitable for home sites and recreational activities, only in the warmer seasons.
Fagerstroms use land. Nome 2000 waited to the last minute before they sued to eject Fs from their
property. Fs built cabin on property and made improvements. Statutory requirement for adverse
possession is 10 years. Court: F allowed others to pick berries/fish on property but doesnt defeat
exclusivity requirement. Expert said native Alaskans dont relate to property in terms of exclusive
property ownership. Hostility requirement: objective test used. Fs needed to show they used it
w/o permission. If you possess mere portion of property described in deed, you get adverse
possession of entire land.

B. Patent Law

1. Definition
a. Exclusive right to make, use or sell an invention to the absolute exclusion of
others for a period of 20 years from the date of the application
b. Patent owner has complete right to determine who will have the right to make,
use or sell the patented item during the patent term
c. Patent owner not herself required to put patent into use or allow others
2. Purpose
a. Art. I, Sec. 8, cl. 8: empowers Congress to promote the progress of science
and the useful arts by securing for limited times to authors and inventors the
exclusive right to their writings and discoveries.
b. Patent law protects applications of ideas.
c. Laws of nature, natural phenomena and abstract ideas are exempt
3. Registration
a. Patent, unlike copyright, require mandatory registration to PTO.
b. Patent application must contain (1) specification describing how invention
works, and (2) claims patentable features asserted new, useful and
nonobvious advances beyond prior state of art
c. Patent obtainee must demonstrate she has developed:
(1) Subject matter requirement: must be a process, machine, manufacture or
composition of matter
(2) Must be useful, novelty (new) and non-obviousness
4. Pros and Cons
a. Pros: incentive to pursue inventions. Incentive to publicly disclose invention
rather than keeping trade secret. Rewards labor of inventor
b. Cons: creates artificial scarcity. Prevents others, even independent inventors
from using process or producing product w/out permission of patentee.
Moore v. Regents of California
Moore had leukemia, had spleen removed. Signed consent form. Doctor establishes cell line
from his genetic material, patented w/ $3 million potential value. Moore sues for (1) breach
of fiduciary duty (2) conversion (interferes w/ possessory and ownership interest in personal
property). Court: yes on (1), but no conversion. Need to protect medical research f/ threat of
liability. Patent law protects value added of researchers. Policy reasons (legislature should
act). Dissent: sanctity of life argument. P has protectable property interest in body parts,
entitled to share in profits.

C. Trademark Law
1. Definition
a. Property-like rights in words, colors, logos, etc. for those who use such
marks in connection with their goods and services in commerce.
b. Protection lasts as long as owner uses mark to identify goods/services. Differs
f/ copyrights and patents. Renewable 10-year terms for trademarks.
c. Generic marks (All News Channel) unprotected by TM law, descriptive =
minimal protection, suggestive = strong, fanciful = strongest (Kodak)
d. Registration is optional, but only limited rights to continue to use in
geographic area if dont register
2. Causes of Action
a. Trademark Infringement. 1125(a)
Occurs when a party uses in commerce a mark (name, logo, color scheme)
that causes, or is likely to cause, confusion, mistake or deception regarding
the affiliation, origin or the nature/quality of goods/services
Likelihood of consumer confusion is the key issue. Non-exhaustive
factors: look at strength of Ps mark; similarity in marks; evidence of
actual confusion; marketing channels used; Ds intent in selecting mark
Initial interest confusion: use trademark in manner calculated to capture
initial consumer attention, even if confusion doesnt result in sale
b. Trademark Dilution 1125(c)
Weakening or reduction in the ability of a mark to distinguish the origin or
affiliation of goods and services
Dont need to show evidence of actual consumer confusion
Blurring: use of Ps mark by D to identify non-competing goods, which
dilutes ability of public to identify the trademark. Ex. McSleep
Tarnishment: Ps mark weakened through negative or unsavory association
with or distortion of Ds use of the mark. Ex. candyland.com (Barbie)
FTDA: (1) famous (2) commercial use in commerce (3) Ps mark is
famous before Ds use (4) dilution
3. Domain Names
a. Unique addresses for websites that map onto Internet Protocol (IP) addresses
b. Must registration domain names with NSI, first come first served
c. Anticybersquatting Consumer Protection Act: amendment to Lanham Act
Registrant had bad faith intent to profit f/ mark, including personal name
No explicit commercial use requirement
Nissan v. Nissan
Nissan Motor Corp. v. Uzi Nissan. Action for trademark infringement and dilution. Uzi
promoted auto-related products through banner ads. Was there initial interest confusion?
Court enjoins Uzi from posting auto-related banner ads. Narrowly tailored decision (doesnt
grant injunction to shut down Nissan.com)
Intermatic v. Toeppen

Intermatic = manufactures timers/house alarms. Fanciful mark, $16 million advertising.

Toeppen registered 240 domain names, intends to sell/arbitrage. Use of Internet satisfies use
in commerce element. Intermatics ability to ID/distinguish goods diluted by Toeppen

D. Copyright (Information)
1. Definition
a. Right to prevent anyone f/ reproducing, modifying or distributing an
original work of authorship for term of life of author + 70 years
b. Copyright protection subsists in original works of authorship fixed in any
tangible medium of expression. 17 U.S.C. 102. Includes literary/musical/
dramatic works, pictorial/sculptural, movies, sound recordings, architecture
c. Exclusive copyright ( 106): Copyright includes right to reproduce
copyrighted work, display or perform publicly, adapt, modify, distribute.
Must be in tangible form. Ex. Nunziatos lecture w/o notes doesnt count
d. Registration not required, but incentives to do so
e. Copyright rests in owner or joint owners of work, not employee. 201.
Ownership can be transferred by means of conveyance.
f. Compilations ( 103) pre-existing material coordinated or arranged in
order to constitute original work. Ex. Hypo about sports ticker email service
2. Limitations on Copyright
a. Ideas and discoveries excluded f/ protection. 102(b).
b. Fair use ( 107): in certain cases, exclusive rights limited or modified. Ex.
criticism, educational purposes, scholarship, research, news reporting
c. Pre-existing data or material not copyrightable. ( 103)
Feist Publication v. Rural Telephone Service
Fiest created phone book w/ yellow and white pages in alphabetical order. Wanted to expand by
adding 11 other counties, 10 consented but 1 didnt. Rural refused to give information but Fiest
took it anyway, did confirmation, thus 47,000 listings are identical. Rural sues for copyright
infringement. Court: compilation of facts copyrightable, but facts alone cannot. Originality and
creativity required by Supreme Court. Rural not entitled to protection. Copyright law rewards
creativity, not hard work/labor (which Rural obviously put into it).

II. Warranty of Title and Recording Acts

A. Delivery
1. Required to effectuate the transfer to insure Grantor intends to part with property
and clarify who owns it
2. Majority: deed not required to be physically delivered
B. Warranty of Title: provide assurances as between seller and purchaser
1. Present covenants reached at time of conveyance
a. Covenant of seisin = grantors promise that he owns the property interest.
b. Covenant of the right to convey = grantors promise that he has the power to
transfer interests purportedly conveyed to the grantee
c. Covenant against encumbrances = grantors promise that there are no
mortgages, liens, unpaid property taxes, or easements that encumber property
that arent in deed
2. Future covenants promises that the grantor (seller) will take further steps to
ensure that in future, purchaser will enjoy clear title to land being conveyed
a. Covenant of warranty: grantor promises to compensate grantee for monetary
losses occasioned by grantors failure to convey title promised in the deed
b. General warranty deed: grantor covenants against ALL defects in title (even
previous owners)
c. Special warranty: limits covenant to defects caused by grantor himself
d. Quitclaim deed: contains no warranty of title whatsoever. Seller transfers
whatever property interest (and defects) he has.
e. Covenant for further assurances: seller must take further steps to cure defects
in grantors title, such as paying adverse possessor to leave
3. Remedies
a. Seller has no right to sell buyer can sue for breach of warranty
b. Closing buyer can amount of money paid for property at time of closing
c. After closing buyer gets market value at time
B. Recording Acts
1. Definition/Purpose
a. Enables buyer to see deeds on their property from grantor to grantee.
b. Functions as security to let buyer know they will really own the property
c. Provide resolutions to disputes between subsequent purchaser of real property
interest and prior purchaser, with bad faith O (no warranties of title)
d. Strong incentive so as to put world on notice that they are purchasers or
property, and put any foolish subsequent purchaser on notice
2. Conducting Title Searches: Each state has set up recording offices. System:
a. Tract system: indexing based on parcel itself. State divided into parcels of
land w/ unique #s. Difficult to convert old system to tract system.

3.

4.

5.

6.

b. Grantor/Grantee indexes: Contains name of grantor/grantee; description

of land; type of interest conveyed (including mortgages); date recorded.
Names listed alphabetically and chronologically by last name
c. Title search: search sellers chain of title in central registry of deeds.
Common law vs. modern rule
a. Common law: first in time, first in right. Otherwise creates radical
uncertainty for purchasers.
b. Modern rule: Subsequent purchaser w/o notice of prior conveyance who
records first always wins
c. Do not protect vs. adverse possession, nor subsequent beneficiaries of gifts.
Types of Recording Acts
a. Race Statutes: as between successive purchasers, the one who records first
wins. Places incentive on going to recording office. Very rare.
b. Notice Statutes: subsequent purchaser prevails over earlier purchaser if he did
not have notice of earlier deed. Only have to take w/o notice.
(1) Actual notice
(2) Constructive notice = imputed f/ previously-recorded deed. (record)
(3) Inquiry notice = diligent subsequent purchaser would be put on notice
c. Race-Notice Statutes: subsequent purchaser must (a) have no notice of prior
deed, AND (b) record before prior purchaser records
Shelter Doctrine
a. Allows bona fide purchaser (who is second purchaser) to sell to a third
purchaser, even if third purchaser knew of earlier conveyance
Ex. O A (no record)
O X (no notice, but records)
X C (knows of OA conveyance)
O X valid under race, notice and race-notice statutes. O A conveyance is
worthless. Under Shelter doctrine X ----> C OK b/c second conveyance is legal.
Wild deed: outside chain of title (usually when recorded too early)
Ex. O X (no record)
X A (records) WILD DEED
O B (no notice of XA)

Sabo v. Horvath
1959
Alaskans ----> Federal government
1964
Lowery occupying land
1965
Lowery applying to purchase
1967
Lowery seeking to purchase, hasnt
1970
Govt has recommended patent but Lowery still doesnt have title
Jan. 3, 1970
Lowery ----> Horvath (quitclaim)
Jan. 5, 1970
Horvath records. Horvath has notice that title in land still held by govt
Aug. 10, 1973 Govt ----> Lowery (approves patent)
Oct. 15, 1973
Lowery ----> Sabo (quitclaim)
Dec. 13, 1973
Sabo records
Alaska has a race-notice statute. Quiet title action: court decides who has title btw prior and subsequent
purchaser. Do Sabos have notice of wild deed outside their chain of title? Court: requirement would
impose heavy burden on purchaser. Sabo takes w/o constructive or record notice. Horvath have remedies?

--Unjust enrichment (restitution)

--Estoppel by deed: If you purport to own something and convey property, but dont really own it, when
you do obtain title, it must be passed on
--Fraud. Elements are (1) material misrepresentation by Lowery; (2) justifiably relied upon by Horvaths;
(3) damages.
-- maybe material misrepresentation by Lowery to Sabos. Was it justifiably relied upon by Horvath (NO)?

III.Trespass
A. Common Law Right of Trespass
1. Right to exclude others one of most important/defining property rights
2. Trespass = intentional intrusion upon property possessed by another
a. Volitional act. Must do voluntarily. Mistaken entry no excuse.
b. Intrusion occurs at moment non-owner enters property. May occur at physical
entry, or above or below surface (i.e. porch overhanging neighbors property)
c. Right of others to access property trumps property right when:
(1) Save human life (necessity)
(2) Public accommodation statutes re: preventing discrimination
(3) Free speech in public places or private places functioning as public places
(4) Facilitating labor organization
(5) Tenants rights to receive guests (right of licensee to enter)
(6) Public accommodation law (usually focused on race discrimination)
d. More owner has opened up property, more limits on right to exclude
State v. Shack
Tedesco owns NJ farm w/ migrant workers. Tejeras works for SCOPE (health care for migrants).
Shack = CRLS (legal advocate). Arrested for trespass. D: (1) Supremacy clause (federal law
providing for aid to migrant workers > criminal trespass statute). Court doesnt need to address.
(2) 1st Am. via incorporation doctrine workers have right to receive info. Rejects company town
doctrine (Marsh) and Logan Valley b/c not public enough place. Court: property rt. not absolute,
social/utilitarian interests. Workers have right to receive visitors, aid providers (charities, govt),
press. No rights for solicitors/peddlers.

B. Remedies of Trespass
1. Injunctive relief: force Ds to cease wrongful conduct. i.e. lawsuit for ejectment
2. Damages: paid to injured party by wrongdoer
a. Compensatory Damages
(1) Diminution in fair market value (i.e. compare before and after trespass)
(2) Restoration damages: full cost or reasonable cost of reasonable restoration
(3) Cost of restoration capped at diminution in market value
(4) Subjective value to P. Ex. tree planted same day as birth of Ps child
b. Punitive damages: if Ds conduct willful, wanton reckless
3. Declaratory judgment: states legal rights against another party
4. Relative hardship doctrine: injunction disfavored when harm minimal, costs of
removal substantial and intrusion minor. Party should get damages. Ex.
encroachment with Nunziatos fence
Brusowankin

Samson responsible f/ negligently bulldozing Brusowankins land, destroying attractive, mature

trees. Bare as a board, but not as smooth. Trespass claim. Possible remedies: (1) Value of trees
as timber ($500) (2) Diminution in market value (may have gone up) (3) Restoration (P expert
says reasonable restoration too expensive). Samson: jury should look only at diminution in market
value. Court: if jury finds personal value to P, cost of reasonable restoration is OK, even if greater
than diminution in market value. Based on Restat. 929

C. Trespass to Chattels in real space and Cyberspace

1. Trespass to chattel for personal property: interference or intermeddling with
plaintiffs personal property
2. Intermeddling is bringing about physical contact resulting in physical disposition
or substantial interference.
3. Substantial interference = impairing quality or value of chattel
4. Majority (Hamidi) only need to show tangible interference
a. Minority must show injury to quality or value of chattel
Intel Corp. v. Hamidi
Hamidi sent emails to several thousand employees on 6 occasions over 2-yr. period. Bitter former
employee. Intel tried self-help steps (filtering), which he defeated. ISSUE: Does P need to
establish injury and/or dispossession? Court: dispute between majority and dissent over whether
injury required. Majority: only need to show tangible interference for injunction. Dissent:
regardless of remedy, must show injury to quality or value of chattel. If P could show incapacity
to email server, that would satisfy both definitions

IV.Public Accommodations Law

A. Common Law
1. History
a. Innkeepers/common carriers privately owned, but opened to public. Public
has reasonable right to access both, since travel involved.
b. Other businesses open to public had absolute right to exclude without cause.
(still majority rule)
c. More a place is opened up to the public, lesser their right to exclude becomes
Madden v. Queens County Jockey Club (majority)
Leading case re: absolute right to exclude. Race track excluded someone they mistakenly
thought was a well-known bookie. Said they had right to exclude whomever they
wanted, court agreed (NY statute only applies to common carriers/innkeepers). Market
rationale: business wouldnt unreasonably exclude b/c wants to make money.

Uston v. Resorts International (NJ, minority)

Uston is blackjack player at casino in AC who knows counting technique that helps him
win. Resorts Intl kicks him out. Court: property owners cannot arbitrarily exclude
customers. Reasonable to exclude: security threat; disruptive to functions; drunk; petty
offender. Expand c/l rule beyond reasonable access to innkeepers and common carriers.

2. Questions
a. What constitutes a public accommodation (i.e. to what types of places does
the public enjoy a reasonable right of access)
b. What constitutes reasonable grounds f/ excluding someone f/ your property?
3. Policy Considerations
a. Patricia Williams: buzzers at NY store doors allow employees to not let in
black customers. Right to not let in perceived undesirables = racism
b. Bayesian: people use stereotyping and prejudice to make decisions in absence
of perfect information or statistical data. Pick bball team of black males.
B. Public Accommodations Statutes and Canons of Construction
1. Civil Rights Act of 1964
a. Section A: All persons entitled to full and equal enjoyment of goods,
services, facilities, privileges, advantages and accommodations of any place of
public accommodation w/o discrimination or segregation based upon race,
religion or national origin
b. Covers lodging > 5 rooms (owner doesnt live there); restaurant, cafeteria, or
other facility principally engaged in selling food for consumption on the
premises; gas stations; entertainment venues (movie theater, sports arena)
c. Expressly does not include private clubs
d. Doesnt seem to include retail/clothing stores, doctors offices, carry-out food
establishments; medical services; religious establishments
e. P must bring complaint to state agency first before it goes to federal court.
Only can apply for declaratory or injunctive relief.
f. Some interpreted Civil Rights Act of 1866 as providing remedy for
discrimination by private clubs
g. Act now includes gender, sexual orientation, disability
2. Power under Constitution
a. 14th Amendment: Congress can pass laws that will create equal protection
(2) Commerce Clause (if activity affects commerce), or discrimination is
supported by state action
2. Linguistic Canons: look at how terms construed via syntax. Policy-neutral
a. Inclusio unius est exclusio alterius (Inclusion of one = exclusion of another)
Statutes should not be casually construed to mandate changes not specified
by the language chosen
Ex. if public accommodation statute wanted to address discrimination at
coffeeshops, they would have specifically included it in statute
b. Ejusdem generis, noscitur a sociis (Words take shape f/ surrounding words)
Better understanding of the statutory objective may be gleaned from
specific examples used.
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May be inappropriate to read statute as changing the applicable rules as

broadly as each word, taken in isolation, might suggest
c. Plain meaning
Statutory terms construed according to dictionary definition as well as
their ordinarily accepted usages
Neutral on subject of change (statutes interpreted broadly and narrowly)
3. Substantive Canons: embody particular policy choice
a. Statutes in derogation of common law should be strictly construed
Recognizes value of minimal disruption of existing arrangements
consistent with language and purpose of a new law
Presumption against pre-emption of state law in matters traditionally
subject to state regulation
b. Remedial statutes should be liberally construed to achieve their objectives
Particular effect when legislative change corrects earlier legislative error,
is procedural, or enhances individual rights to attain property rights.
United States Jaycees v. McClure (MINNESOTA Jaycees)
Jaycees = all-male natl organization w/ state chapters, recently starts benefit-restricted
associate membership f/ women. Minn./St. Paul chapters want women, sue Natl for
violating public accommodation statute. Is Jaycees a business facility? Minn. Sup. Ct.
looks to legislative history, has intended to give privileges to individuals in response to
narrow judicial constructions. Legislature explicitly says statute should be liberally
construed. Court looks at selectiveness of group in admitting members and/or limits on size
of membership. Jaycees doesnt turn anyone away. Not a private organization.
United States Jaycees v. Iowa Civil Rights Commission (IO Jaycees)
Membership organization public accommodation under Iowa anti-discrimination statute?
IO Sup. Ct. looks to noscitur a sociis and plain meaning. Place, establishment and
facility connote physical qualities. Absent specific legislative intent, court bound by
common understandings of statutory terms. Court concerned about restrictive statute and
expresio unius interpretation, but membership organizations different. Dissent: give
deference to Commission to define, they are charged w/ administering statute
Boy Scouts of America v. Dale
BSA revoked membership of gay Scoutmaster Dale. Issue whether BSA a public
accommodation. Court: BSA has right to exclude. BSA freedom of association trumps NJ
state interest in preventing discrimination. Dissent: unclear if BSA actually engaged in
expressive conduct.
Lloyd v. Tanner
Tanner distributes anti-war leaflets (Nov. 1968) at Portland mall, told to move and later sue f/
declaratory and injunctive relief. D: 1st Am. right expression in private mall. P:
unconstitutional deprivation of property rights (5th/14th Ams). Dist. ct: functional equivalent
of public business district, cf. Marsh (company town doctrine), Logan Valley (picketing at
shopping center). Sup. Ct.: Lloyd has right to exclude b/c mall doesnt assume public
functions (Marsh) nor is protest directly related to purpose of shopping center (Logan Valley).
Dissent (Marshall): 1st Am. supercedes private property rights under balancing test. Mall =
public square of the modern era.
Heart of Atlanta Motel v. U.S.
P sues U.S. seeking declaratory judgment that public accommodation provisions of Civil
Rights Act of 1964 violate 5th Am. (taking w/o due process), 13th Am. (involuntary servitude).

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Hotel does 75%+ business of out-of-state residents, advertises on interstate highways. Court
upholds law on commerce cause grounds (substantial effects doctrine). Blacks cannot travel
interstate b/c restrictions in hotels in South. Hotels that serve transient guests fall under Act
per se. Douglas (concurrence): should be 14th Am. right, commerce clause usually re: cattle

C. Public Accommodations Statutes and Legislative History

1. Reasonable uses of legislative history (Breyer): (a) avoid absurd results; (b)
illuminate drafting errors; (c) choose among reasonable interpretations of
politically controversial statute; (d) reflect institutional objectives of Congress
2. Criticisms
a. Lack of availability or utility (history often more vague than statute itself)
b. Constitutional arguments. Statute is Congressional intent, not floor speech or
committee report. Legislative power vested in elected officials, not staff.
Breyer: merely tries to help people understand meaning of words of statute
c. Congressional intent is a myth. Public choice theory (law reflects conflicting
interests of interest groups, not overall purpose)
D. Fair Use in Copyright Law
1. Fair use of copyrighted work is not infringement. 107, Copyright Act of 1976
a. Purpose and character of Ds use (i.e. criticism, scholarship, research)
b. Nature of copyrighted Ps work.
c. Amount/substantiality of portion used: expression relevant, not factual content
d. Potential market impact of Ps work
Salinger
Biographers right to access vs. J.D. Salingers interest in protecting expression and privacy.
Physical property of letters owned by univ. libraries, Salinger owns copyright in text. P objected
to May galleys, registered unpublished letters and sought to have bio postponed. October
galleys paraphrased content. Wants injunctive relief (no publication), damages, unfair
competition (paraphrasing). Unpublished nature of letter important. W/ real property, more open
to public, less right to exclude. Holding: Salingers right to protect expressive content over
copyright term outweighs fair use under ordinary circumstances.

V. Nuisance
A. Introduction
1. Conduct that is unreasonable and causes substantial harm to the use and
enjoyment of real property.
2. Criteria to resolve Nuisance conflicts
a. Prior use: prior appropriation or prescription. Person who first established use
has right to commit harmful activity. Prescription or adverse possession
use for substantial period of time determined by statute
b. Reasonableness/Social Utility
(1) Gravity and nature of harm
(2) Social utility of various parties. Must make value judgment
(3) Availability of alternate means to mitigate harm
(4) Defendants motive
(5) Which use was established first

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c. Landowner rt. to use property as sees fit (privilege). Damnum absque injuria.
d. Strict liability. Ultrahazardous activity. P can veto Ds harmful activity
Rights-based approach: Ps right to be free from disturbances or
interferences with use/enjoyment of land
3. Restatement
a. 1st: usefulness of conduct > harm = no nuisance. Courts didnt like this.
b. 2nd Restatement: (3-part test)
(1) 829A (rights-based approach) if harm sufficiently severe, P entitled
to compensation as a matter of law, regardless of the utility of the conduct
(2) 826(b) P gets relief if harm caused is serious and damage liability
would not cause D to cease activity
(3) 826(a) (utilitarian) gravity of harm > utility of actors conduct
Borland v. Sanders Lead Co.
Smelter used by D next to Ps property. Emissions could be mitigated by installing bag house.
99% effective but caught fire 2X. Claims: (1) trespass (2) nuisance. Court used to look at
size/dimension of particles, now definitions: (1) trespass = invading possessors exclusive interest
in property (2) nuisance = interference w/ right to use and enjoy. Actual damages not necessary if
direct intrusion; nominal + punitive damages awarded. Court: look at property value before/after
intrusion, determined by owners desire f/ previous use of property.

B. Liability
1. Nuisance distinguished from trespass
a. Trespass protects Ps possessory interest in land, and victim has absolute right
to nominal damages to any such interference
b. Some courts distinguish btw direct and indirect invasions (bullet vs. smoke)
2. Most courts allow Ps to proceed on both trespass and nuisance theories
3. Focuses on results of conduct, rather than its unreasonableness (negligence)

Page County Appliance Center v. Honeywell

P owns store that sells TVs. ITT computer manufactured, installed and maintained by Honeywell
sits in nearby travel agency. Radiation leaking f/ computer causes snow on Ps TVs. 70% fixed,
tech to cure design problem but expert says cost prohibitive. D argument: display TVs were
hypersensitive use (cf. outdoor movie theater), ITT exercised highest degree of care. Court: not
abnormal use, degree of care irrelevant (not negligence). Reversed/remanded f/ jury to determine
whether Ds conduct was substantial factor, P sensitive use.
Jost v. Dairyland Power Co.
D emitted 90 tons S02/day by 1967. Made flower growing impossible f/ P, rusted screens. Expert
says no diminution in market value (tax assessor). Town interest in protecting power plant b/c
substantial utility f/ tax revenue and jobs. D: social utility > gravity of harm. HOLDING: even if
conduct brings great social benefit, not fair for individual to burden harm. Due care is never a
defense to nuisance (only in negligence). Rights-based approach: injury small in comparison to
utility of offending conduct should not go unredressed.

C. Remedies
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1. Entitlements
a. Property rules: absolute entitlements fixed, either to engage in conduct or be
secure from harm. Parties free to bargain for opposite result.
b. Liability rules: prohibit each party f/ interfering w/ interests of other unless
willing to pay damages determined by court of law. No injunction by court.
Purchased injunction can compel D to stop harm but compensate f/ lost profit
c. Inalienability rules: entitlements assigned by statutes, supercede and prohibit
sale or exchange of private agreements.
2. Remedies in court
a. Injunction D unreasonable + substantial harm to P
b. Damages D reasonable + substantial harm to P
c. Purchased injunction Ds conduct harm > good, but not fair to make D
pay for cost of stopping harm (e.g. P came to harm)
d. No remedy harm to P not substantial; D conduct social good > harm, and
not unfair to burden P; avoidance of D out of business > prevention of harm P
3. Public Nuisance: unreasonable interference w/ right common to general public
a. Common law: can be enjoined only by public officials
b. Rest. and emerging trend: anyone affected can bring suit
Boomer
Ps want to shut down neighboring cement plant. Ds utility: investment > $45 million, 300+
employees. Permanent damages to Ps: $185K. Remedies for P: (1) immediate injunction (2)
Injunction f/ 18 mos f/ D to implement better pollution control methods. D: cant fix complex
national problem w/in 18 months, should balance utility of conduct against harm, and just order
monetary damages. Court: not forum to deal w/ national policy issues like pollution. Grants
permanent damages imposing servitude on land (precludes Ps future recovery). Utilitarian
approach. Dissent: no public use/utility. D allowed to continue pollution.

D. Light and Air

1. Majority: No easement f/ light and air exists, unless created by contract. Absolute
rights f/ owners to develop property. Cf. Fontainebleau
a. Ancient lights (Eng.) landowner w/ continuous receipt of light f/ another
property can acquire negative prescriptive easement. Not recognized in U.S.
b. Spite fences (exception to majority rule): erected f/ sole purpose of malicious
harm to neighbors access to sunlight.
c. Policy considerations behind rejection of light and air easements
(1) Right of landowners to use land as they wish strongly protected
(2) Sunlight only valued f/ aesthetic reasons
(3) Society didnt want to impede land development
2. Minority: reject c/l, recognize easement for light and air. Cf. Prah v. Maretti.
3. Coase Theorem
a. If there are no transaction costs, it does not matter which legal rule is chosen,
because any legal rule will produce an efficient result
b. Ex. entitlements either Fontainebleau = build addition, or Eden Roc = free of
interference of light/air. If addition worth $10 million to F, and harm only $6
million to ER, F should pay ER btw $6-10 million. Allocative efficiency.

14

c. Transaction costs = (1) projections (2) legal fees (3) sunk costs of renovation
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
Interlocutory appeal f/ order enjoining P f/ continuing 14-story hotel addition. Eden Roc objects to
addition, says they have (1) prescriptive easement (2) malice (wives of owners spite) (3) violate
zoning setback rule (4) interferes w/ light and air, making beach unfit f/ use and enjoyment. P: we
are within zoning laws, Eden Roc should go to zoning board. Court: w/o easement or adverse
possession, no legal right to unobstructed light and air f/ enjoining land. Sides w/ P.
Prah v. Maretti
P, 1st in subdivision, puts up solar panels, later blocked by D construction. P wants injunctive
relief and damages. D: no notice of hypersensitive use, solar energy rare, zoning issue. Court:
different result than Fontainebleau; light and air not excluded f/ nuisance doctrine. Reasonableness
of behavior key, remands to figure out remedy. Dissent: denies Ds right to lawful enjoyment of
property, not public nuisance, policy decision left to legislature, not intentional/unreasonable.

E. Zoning
1. Public land use planning by state and local governments.
2. State has broad police power to regulate health and welfare of public, can delegate
this power to municipalities. State can also exercise takings power (f/ public use
or purpose, and must pay just compensation)
3. Types of Zoning:
a. Use zoning: sets requirements or barriers of what kind of uses land can be put
to. Cumulative (i.e. residential zone = residents only, commercial zone =
residents + commerce, industrial zone = residents, commerce, industry)
b. Area zoning regulation of height of buildings, setback lots, etc.
Amblers Realty v. Village of Euclid
Issue: is villages comprehensive zoning plan regulating Ps land as to constitute a taking? P buys
68 acres land just north of Euclid Avenue, where commercial activity plentiful before zoning
ordinance (U-2). Now only single/double family homes allowed, restricting Ps use and profit.
Ps land more valuable if zoned industrially ($10K/acre vs. $2500/acre). P: zoning plan
constitutes taking. Lower court: taking, even though title not taken.
Supreme Court: no taking, b/c village needs ability to implement zoning system (cant compensate
everyone). Rational relations test: zoning regulation must not be arbitrary, and must bear rational
relationship to health and welfare of the community. YES. Benefits outweigh costs: better
police/fire protection, street maintenance, lessening of nuisance (conflicts btw residents/business).

VI.Takings
A. Regulation
1. Private Property shall not be taken f/ public use w/o just compensation.
a. State both defines and limits property rights. If government provides
compensation, has right to take private property. Incorporation doctrine
applies Takings Clause to states
b. Public use = taking must effectuate legitimate public purpose. Public doesnt
physically have to use land.
c. Eminent domain: power to condemn property f/ public benefit and pay just
compensation.

15

Can be given to municipalities, counties and private corporations that

provide public services (e.g. utilities)
d. Police Power: State governments have power to pass legislation regulating
private conduct to protect public health, welfare and safety.
Takings via police power DO NOT require compensation
When State acts via legit police power, infringement on private property
interests is damnum absque injuria (damage w/o legal redress).
e. Common law only physical invasions (trespassory) were takings
f. Regulatory takings (modern trend): states exercise of police power has
disproportionate negative effect on property holders. Allows for use and area
zoning regulations. Pennsylvania Coal case recognized regulatory takings.
2. Three-Factor Test for Takings
a. Character of the government action
Invasion of core property rights (i.e. trespassory) vs. regulatory scheme
Community benefit vs. prevention of harm caused by subject property
b. Diminution in property value of subject property
c. Economic impact of regulation
Interference w/ reasonable investment-backed expectations
Penn Central Transportation Co. v. City of New York
To renovate Grand Central Station. NYC ordinance required permission from Landmark
Preservation Cmmn. Penn Central contracted w/ UGP to build office building w/ 50-yr. lease.
Cmmn denied 2 plans. Penn Central asks f/ just compensation. Sup. Ct: look at (1) character of
govt action (trespassory vs. regulatory); (2) economic impact of regulation. Penn Central could
take advantage of transferable development rights (other properties pre-ordinance exempted from
regs). Courts: regulation not interfering w/ reasonable investment-backed expectations. Brennan:
people would vote that wealthy landowners should pay f/ historic preservation.
Pruneyard Shopping Center v. Robins
Pruneyard Shopping mall in CA kicks out high school kids handing out pamphlets opposing the
UN Zionism is Racism resolution. Pruneyard: 14th Am. gives them right to exclude. CA Sup.
Ct. said CA constitution protects speech in privately-owned shopping centers. Sup. Ct.: taking
requires people to be forced to bear public burdens which should be borne by public as whole.
Uses balancing test to determine not a taking. No diminution on property value or interference w/
reasonable investment backed expectations. Does not overrule Lloyd v. Tanner because here
the CA state constitution protected their right to free speech.
Lucas v. South Carolina Coastal Council
P purchased $975K lot on SC beach to develop f/ single family homes. Not under 1977
legislation, but new 1988 Beachfront Mgmt Act effectively prevented development. D: not a
taking b/c legitimate exercise of police power. P: complete extinguishing of property value. SC
Sup. Ct.: legislation ok b/c prevents serious public harm. Sup. Ct. (Scalia): state must pay when
total taking (i.e. physical invasion, or all economically viable uses of property denied by
regulation). Exceptions: use interests not part of original title + relief available under nuisance
law. No deference to legislature. Kennedy (concurrence): look at reasonable investment-backed
expectations. Scalias rule re: new regulations/ nuisance too narrow. Blackmun (dissent): land
hasnt lost all economic value (could be used as camp). Legit exercise of police power (Mugler)

B. Just Compensation

16

Baltimore & Potomac Railroad Company v. Fifth Baptist Church (1883)

MD delegated eminent domain to railroad company. Church cannot secure injunctive relief.
Private individual cannot enjoin state. Railroad says no diminution in real property value. Court:
not far-fetched to imagine machine shop in neighborhood would enhance property value. Church
might not be able to recover at all. Measure in just compensation cant just look at diminution of
property value. Look at discomfort and annoyance. Similar to Brusowankin Co.
U.S. v. 564.54 Acres of Land, More or Less
Respondent using property to operate 3 summer camps along DE River, U.S. wants to take
property f/ public recreational use. Govt offers fair market value $485K, Church wants $5.8
million to develop functionally equivalent substitute facilities, previously exempt by grandfather
clause. Church: different f/ other private owners. Fair market value usually sole consideration to
ascertain just compensation, unless: (1) Market value too difficult to find; (2) Manifest injustice.
Court: degree of public loss irrelevant. Market value ascertainable (11 sales of camps in vicinity,
this camp possibly sold in 6 months). Non-transferable values derived f/ owners unique needs
are not compensable.

C. Public Use
Hawaii Housing Authority v. Midkiff
In Hawaii 1960s, land oligopoly, wealthy landowners only leased, never sold. Land sales subject
to federal capital gains tax or tax on voluntary sale, reason why landowners didnt want to sell.
Hawaii makes land sales involuntary via statute (compulsory arbitration). Issue: was Land
Reform Act a taking f/ public use? D: taking b/c transfer of property f/ one to another private
actor. Court (OConnor): not a taking, give deference to state legislature (rational basis test).
Poletown v. City of Detroit
Detroit negotiates w/ GM to build new plant, city in severe economic crisis. Need 500 acres near
railroad, city selects 9 sites, GM chooses Poletown. P: taking f/ private use. Court: rational
relation to conceivable public purpose is met b/c taking f/ public use and need. Issue should be
decided by legislature, not courts (same standard as Midkiff). Public interest to alleviate
unemployment and economic revitalization, GMs benefit incidental. Dissent: GM manipulated
whole process f/ their gain, condemned land f/ private (corporate) use.
Vicksburg v. C.N. Thomas
City of Vicksburg had urban renewal plan, enter into agreement w/ Harrahs f/ casino. Use eminent
domain to seize Thomas property, he sues. City: taking f/ private use w/ substantial public benefit
($15 million tax rolls, $60K f/ park). Court: not direct showing of public use. No restrictions, etc.
in citys contract w/ Harrahs. Private developer is prime beneficiary of taking.

VII.Servitudes, Licenses and Easements

A. Servitudes: land use agreements btw private parties in residential and commercial
contexts that:
1. Authorize a non-owner to enter your property for specific purpose
2. Five Types of Servitudes
a. Profits
b. Licenses
c. Easements
d. Real Covenants
e. Equitable Servitudes
B. Profits (a prendre) right to remove
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1. Rights to remove object f/ someone elses property

2. Affirmative easement (i.e. allows someone to do something)
3. Ex. you give neighbor right to come on property to pick apples
C. Licenses right to enter
1. Revocable permission to enter someone elses property
2. Generally revocable at will of licensor, and can be express or implied
3. Generally not transferable (exception: theater tickets)
4. Revocable licenses
a. Permission granted by property owner to allow someone else to enter her
property temporarily and/or for specific purpose
b. No writing required.
c. Often implied by circumstances
5. Irrevocable licenses (i.e. easement by estoppel)
Where licensor induces licensee to act in reasonable reliance on the
license (e..g extended $$ or labor), licensor estopped f/ revoking license
Based on idea that when people start to open up their property, others have
expectation they will continue to be able to use it.
Holbrook v. Taylor
P allowed D to use his road btw 1944-1965 (including workers). No prescriptive use. D built
$25K home and made improvements to road (widened, graveled), which is only way they can get
to highway. 1965 Holbrook wanted letter f/ D saying no liability f/ damages to people on road b/c
Mrs. Holbrook worried Taylors acquire easement by prescription. Taylor refused, so Holbrook put
steel cables in road. Court: revocable license becomes irrevocable if licensee has relied upon
license. Equity allows formal requirements to be relaxed.
Rase v. Castle Mountain Ranch, Inc.
Tavenner used to own ranch, gave permission to people to build cabins on site b/c he wanted
access to lake. 1963 license agreement btw cabin owners/ Tavenner either party could
terminate at will, no family-to-family transfer. 1972 Ward acquires ranch f/ Tavenner, who
gives notice of termination pursuant to 1963 license. Cabin owners sue to establish permanent
easements. Court: cabin owners have right to damages or to stay in cabins for thirteen years in the
future, but not indefinitely. Similar to a constructive trust b/c property interest transferred to
someone else and there is no more statute of frauds defense.

D. Easements right to use

1. Definition
a. Limited right to use or control the use of someone elses property
b. Irrevocable by grantor
c. Generally transferable in life and upon death
d. Generally must be in writing to be enforceable (EXPRESS)
e. Usually subject to statute of frauds (grantor must provide writing)
2. Types of estates
a. Servient estate/tenant: property burdened by easement
b. Dominant estate/tenant: property benefited by easement
3. Affirmative vs. Negative

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a. Affirmative right to enter, use or affirmatively do something on someone

elses land (different f/ covenants/servitudes = relate to ones own land)
b. Negative right to restrict or control someone elses property (c/l limited to
(1) light/air (2) lateral support (3) easements f/ flow of stream)
4. Implied easements
a. Implied easement by prior use
(1) Two parcels owned by common owner before severance
(2) Previous use must be apparent, obvious, continuous, permanent
(3) Use is reasonably necessary (does not have to be absolutely so)
b. Implied by necessity
(1) Parcel has no outlet to a highway except over remaining lands of grantor
or strangers easement implied by necessity
(2) Parcels in question must have had common owner
(3) Easement runs with the land may lay dormant but still pass
(4) Most courts use absolute necessity standard (unlike prior use easements)
Granite Properties v. Manns
After conveyance f/ P, D own roads behind P shopping center. D refuses to let P use road f/
delivery trucks, trash removal. P: implied easement by prior existing use. D: must use
absolute necessity standard, esp. since P drafted conveyance. Court: use reasonable necessity
standard (i.e more pronounced prior use = less necessity needed). Court grants implied
easement, w/o fees.
Finn v. Williams
One of Ds descendants inherits land and refuses to let P use drive way, even though Ps
parcel is landlocked. Ps cant sell produce at market, and other paths (south/east) are closed.
Court: refuse to allow the creation of a wholly landlocked parcel. Strict necessity, thus
easement by necessity created. Policy: promote property development by preventing
landlocked property f/ being taken off market.

5. Appurtenant versus Easement in Gross

a. Appurtenant easement
Easement is attached to land itself, and benefit of easement runs with the
land. Only way to transfer easement is to transfer land itself.
Appurtenant easements can be subdivided. Cf. Cox v. Glenbrook
Courts have preference f/ appurtenant easements (presumption)
b. Easement in gross: easements owned separately, and not attached to the land.
Generally transferable (though some states retain c/l rule of no transfer)
Can be personal (Nunziato grants kids right to bike across backyard) or
commercial (utilities needing to lay power lines over land)
c. Test for distinguishing appurtenant vs. easement in gross:
(1) Intent of grantor = primary consideration
(2) Language of the deed/other circumstances
d. Runs with the Land
(1) Writing (does NOT have to be included in subsequent deeds)
(2) Intent to run with land (by original grantor)
(3) Notice to subsq. owners at time of purchase (actual, inquiry, constructive)

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Green v. Lupo
P (mobile home park owner) conveyed land to D, who hasnt paid off debt. In exchange for deed
(to build home), D grants P an easement along southern 30 feet. P uses easement as motorcycle
runway. D doesnt like this and blocks access to the easement when they finish paying for land.
Trial ct: easement in gross and f/ benefit of Ps alone. Court: its an appurtenant easement. Since
ambiguity in written instruments, presumption in favor of appurtenant easements. Reverses and
remands; look into reasonable restrictions for motorcycle use.
Cox v. Glenbrook
Glenbrook (owns Lake Tahoe resort) granted Quill right-of-way easement to U.S. 50 in 1938.
Appurtenant easement (unto the said grantee, his heirs and assigns forever). 1943 Quill died,
1960 land sold to Cox. Cox wants to know extent of easement because wants to develop property
for 60-80 residential homes. Lower court: original intent of parties was to allow easement for
single-family home, 60-80 homes cant make use of that easement. Court: appurtenant easement
can be subdivided. Cox could make improvements, but only within width of original right-of-way
Henley v. Continental Cablevision of St. Louis County, Inc.
1922 commercial easements in gross granted to Union Electric/ Southwestern Bell. P: trustees of
subdivisions, says cable co. illegally exercising rights under easements. Reading terms narrowly =
laying of cables for television not within scope of easements. Issue: can initial easements in gross
be transferred, and be apportioned? Court: exclusive easement in gross, no retained interest.
Easement apportionable.

7. Scope of Easement
a. Kind contemplated by grantor? Most courts interpret broadly: general right of
way may be used for any reasonable purpose. Cf. Henley
b. Unreasonable additional burden on servient estate? Depends on intent of
grantor, otherwise courts will use balancing test.
c. Apportionment/Divisibility
(1) Appurtenant easements apportionable among subsequent owners if
dominant estate divided. Cf. Cox (this is the majority)
(2) Easement in gross apportionable if exclusive (i.e. grantor does NOT
reserve right to use easement), otherwise not apportionable. Cf. Henley
8. When can Easements Terminate?
a. Release of easement. Owner of dominant estate releases servient estate owner
b. Merger. Property comes into single ownership = appurt easements terminated
c. Abandonment
d. Adverse possession or prescription by owner of servient estate or third party
e. Some states require periodic re-recording

VIII.Real Covenants and Equitable Servitudes

A. Definitions
1. Real Covenant
a. Promise made by landowner to use or not use own land in particular way
b. Creates affirmative duty (i.e. build structure or pay condo membership fee)
c. Different from easements: they only can create right to do something on
someone elses land

20

B. Elements of Real Covenants (**** not required for appurtenant easement)

1. Writing (lease, deed, declaration, plat)
2. Notice given to burdened party (actual, inquiry, constructive)
3. Original owner intends covenant to bind successors
4. ****Covenant must touch and concern land
5. ****Privity of estate between original covenanting parties and successor owners
(only element not required for equitable servitudes)
C. Real Covenants vs. Equitable Servitudes
1. RC: remedy for breach is damages
2. ES: remedy for breach is injunction
3. ES same elements of RC except for privity of estate
D. Touch and concern
1. Covenant has something to do with use or enjoyment of land
2. Affects market value (increasing benefited land or decreasing burdened parcel)
Common law promises that do NOT touch/concern land: (a) Promises to pay
money (b) anti-competitive covenants
E. Privity of Estate
1. Horizontal privity = relationship re: land between original/covenanting parties
2. Vertical privity = relationship re: land between original covenanting party and
successor in interest/subsequent owner
3. For burden of real covenant to run with land:
a. Original contracting parties must be in horizontal privity
b. On burden side strict vertical privity
4. Horizontal privity requirements:
a. Original covenanting parties must be either (1) buyer/seller (U.S. majority)
(2) lessor/ lessee (England) (3) grantor/grantee of appurtenant easement (MA)
b. Covenant must be contained in documents creating relationships. Doesnt
include agreements btw neighbors, or agreements made after property transfer
5. Vertical privity
a. Must be on burdened side for it to run with the land, but many states dont
require it on benefit side
b. P1 must transfer full and entire property right in burdened parcel, and cannot
retain future rights in the land.
c. Leaseholds and life estates not included (landlord retains rights, and grantor of
life estate has reversion). Homeowners associations exempted as well.
Tulk v. Moxhay
Conveyance btw Tulk and Elms contained covenant: square kept uncovered with buildings.
Intermediate conveyance to Moxhay, wants to build on square. Real covenant binding on
successor? Moxhay had notice, writing, intent to run w/ the land, touch/concern. Key question:
privity of estate. England says no horizontal privity b/c relationship not lessor/lessee. Court in
equity. Not real covenant, but would be unjust. Moxhay cant escape restriction b/c he has notice.
Whitinsville Plaza v. Kotseas

21

sale w/ covenant
Kotseas

Trust
lease
sale
no vertical
vertical privity
privity
CVS
Plaza
servient
dominant
Mutual appurtenant easements. Covenant restricts K f/ opening discount store in competition w/
Trusts use of land. At later time Kotseas enters into lease w/ CVS. Historically anti-competitive
covenants did not touch/concern land, but court has new rule. Is there real covenant? Majority
requires horizontal/vertical privity to obtain damages. Must be horizontal privity btw K and Trust,
and vertical privity btw Trust/Plaza.
Plaza can sue Kotseas b/c strict VP on benefit side + K retains interest on burdened side (lessor)
Plaza cant sue CVS b/c they have no vert. privity w/ Kotseas (lessor/lessee).
CVS could be liable under equitable servitudes (no privity), but they need notice of restriction

F. Subdivisions
1. Grantor doesnt explicitly restrict property she retains, while restricting grantees
properties. Explicit restriction of lots w/ grantee covenants. Subset of lots
conveyed without restrictions
2. Implied Reciprocal Servitudes covenants restricting land in an area are
mutually enforceable among all owners if the properties were intended to be part
of a common or general plan.
3. Elements of common schemes/plan
a. Original common owner/developer
b. General plan/scheme set in mind of original owner
c. Evidence of common plan:
(1) All or vast majority of lots restricted
(2) Recorded Plat (shows intent of developer)
(3) Restrictions in last deed
(4) Observance by owners of similar development of their land
(5) Declaration contains express language that covenants are mutually
enforceable
d. Enforceable against D w/ notice (constructive, inquiry, actual)
4. Enforceable by purchaser of restricted lot within common scheme
5. Most courts hold that only parcels intended to be restricted by grantor are within
common scheme and thus subject to implied reciprocal servitudes
a. Probably not by absentee developer dont want dead hand effect
McQuade v. Wilcox
McQuade (P) purchased lot f/ Wilcox (D). P restricted by residential use only covenant, but no
similar restrictions on Ds retained land. Wilcox ----> Jacob (real estate dealer) ----> Shelbourn
(owner/operator of cafe). No restrictions to maintain for residential use. Court: General plan
substitutes for writing requirement in implied reciprocal servitudes. Plat good evidence b/c
describes residential subdivision.
Sanborn v. McLean
D constructed gas station. When D purchased deed, no restrictions. None in chain of title. 91 lots
platted in 1891, designed for residential development. 53/91 have restrictions. McLean: why

22

should I have to look outside of title? Also dead hand issue. Court: McLean on inquiry notice, all
neighbors were following restrictions in deeds. Must figure out whether common owner and
common scheme. Case quite extreme in terms of insufficient evidence of general scheme.

G. Terminating Covenants and Equitable Servitudes

1. Changed conditions (dominant estate): covenants unenforceable if conditions
changed drastically that enforcement doesnt substantially benefit dominant estate
a. Applies to changes outside subdivision only when all lots in subdivision
adversely affected, thus making enforcement pointless
2. Relative hardship (servient estate): covenant unenf. if hardship to servient estate
owner greater by considerable magnitude than benefit to dominant estate owner
If however the benefit of the covenant is substantial, court unlikely to
apply doctrine, even if substantial hardship to servient estate
3. Damages preferred remedy under contract law, but property law prefers injunction
because of unique value attached to location of land.
4. Other ways in which ES and RC can be terminated:
a. Acquiescence owner tolerated previous violations by servient estate owner
b. Abandonment owner tolerated violations by owners of other restricted
parcels in neighborhood
c. Unclean hands owner himself has violated covenant
d. Estoppel owner of dominant estates orally represents to purchaser that no
covenant will be enforced, thus inducing reliance
e. Laches covenant ignored/abandoned for significant time but not
prescriptive, and investment in reliance, court finds unconscionable
f. Marketable Title Acts statutes mandating re-recording
g. Language in instrument (often with homeowners associations), merger
(benefited/burdened land come under same ownership), release (all parties
agree to terminate covenant), prescription
El Di, Inc. v. Bethany Beach
El Di chain of title included covenants: if sell alcohol, ownership reverts to BBIC. El Di: changed
conditions render covenant unenforceable (brown-bagging, town acquiesced). Court agrees.
Enforcing restrictive covenant subverts public interest. Not challenged in 82 years. Zoning of
commercial area.

IX.Possessory Interests:
Estates in Land/Future Interests
A. Easements vs. Covenants
1. Easements and covenants control what is done with property in the future.
Remedies being injunction, damages
2. Future interests control who owns real property in the future by defining ways to
divide up property interests. Remedy: forfeiture of ownership of property

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B. Terminology
1. Testator/trix: writes will controlling disposition of property upon his/her death
2. Devisees: beneficiaries of real property left in a will (devising act)
3. Intestate: someone who dies w/o leaving valid will. Property divided among
persons identified in state intestacy statute
4. Heirs: inheritors of property under state intestacy statute
C. General overview
1. Fee simple absolute: right to possess land that extends indefinitely into future
2. Estates in land: distinguished by different times when they end
3. Future interests: distinguished by different times when they begin
D. Future Interests
1. Grantor specifies circumstances under which property will shift from present
interest holder to future interest holder. May not be under control of grantee.
2. May be created in grantor or third party
a. Ex. O grants Blackacre to A for life [default: property reverts back to O
upon As death]. Present life estate in A. Future interest in O.
3. Exist from moment created, but dont become possessory until happening of event
triggering shift of property to future interest holder
4. Issues
a. Public policy. Future interest may be void for public policy reasons.
Unreasonable restraints on alienation, restraints on remarriage
b. Dead hand problem: ancient grantor imposes restraints and conditions that
may interfere with efficient market. Ex. O grants Blackacre to A so long
as no alcohol served on property (El Di)
c. Avoiding concentrated land ownership through inheritance. Use of fee
tail (property cannot be alienated unless bloodline) prohibited by majority.
d. Interference with wide dispersal of property and robust market in property.
E. Fee simple absolute
1. Property interest without associated future interest, estate that extends into
indefinite future. Most complete interest in property one can create
2. To create: O: To A. O: To A and her heirs (fee tail). O: To A in fee simple
F. Defeasible fees
1. Present interest that will terminate at the happening of a specified event
2. Fee Simple Determinable
a. When the condition is violated or specified event happens, the interests
automatically goes back to grantor (unnatural end to life estate)
b. The future interest in the grantor (O) is possibility of reverter
c. Ex. O: to A so long as used for residential purposes. (words of duration)
3. Fee Simple Subject to Condition Subsequent
When the condition is violated or specified event happens, the interests
revert to grantor only when O asserts his right to property. Grantor has
discretion to terminate As estate

24

Future interest in the grantor (O) is Right of Re-entry

Ex: To A on condition that property used for residential purpose, in the
event that it is not, O shall have a right of re-entry (words of condition)
3. Fee Simple Subject to an Executory Limitation (Third Party future interest)
When the condition is violated or specified event happens, the property
transfers automatically to a third party
Future interest in third party (B): executory interest.
Ex. O: to A so long as used for residential purposes, then to B
An executory interest exists only where a remainder is impossible
Subject to the Rule against Perpetuities
G. Life Estates
1. Interest held for life of designated individual. Ex. O: to A for life
2. Future interest after life estate can be either in grantor (O) or 3d party (B)
a. Reversion: interest in GRANTOR. To A for life, [then back to O]
b. Remainder: interest in third party. To A for life, then to B
3. Holder of life estate has no say in who will own it after he dies
a. Holder of life estate (A) can transfer property to B, but when A dies (even
though B now has the property), interest goes back to O or to the remainder.
b. B merely had a life estate pur autre vie (i.e. life estate for the life of another)
4. Remainders
a. Contingent Remainders (subject to RAP) (unnatural event)
Remainder that
(1) Takes effect upon happening of contingent event or
(2) Goes to person not ascertainable at time of conveyance
E.g. To A for life, then to B if Dubya is elected to 2d term
E.g. To A for life, then to the children of Jenna Bush
b. Vested Remainders (subject to RAP) (vests as soon as conveyance signed)
Requirements:
(1) To persons identifiable at the time of initial conveyance
(2) No conditions/contingencies upon taking possession (other than death
of life estate holder)
E.g. To A for life, then to Hillary Clinton
Types of Vested Remainders:
1. Absolutely vested remainders
2. Subject to open. May be divided among persons who may be born in
the future (e.g. To A for life, then to Bill Clintons children). Vested
in Chelsea, but may be shared w/ other future born children of Bill.
3. Subject to divestment. May be destroyed by event that occurs after
initial conveyance. (e.g. To A for life, then to B, but if B becomes
lawyer, then to C)
H. Courts Interpretative Paradigm for Ambiguous Conveyance *****
1. Mere precatory language (meaningless language) fee simple absolute
2. Covenants injunctive relief or damages (avoid forfeiture)
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3. Defeasible fee forfeitures are disfavored

a. Fee simple subj. to condition subsequent grantor must exercise rt. of entry
b. Fee simple determinable automatic forfeiture

Wood v. Board of County Commissioners of Fremont County

Woods conveyed deed 1948 to WY county, f/ purpose of constructing/ maintaining county
hospital. Recorded. Hospital used until 1983, then sold to private company, who put up property
for sale. Ps: we get property back b/c language created fee simple determinable or fee simple
subject to condition subsequent (right of re-entry). Issue: ambiguous conveyance. No phrases
upon express condition that, provided that, if. Court looks to (1) intent of grantors (2) public
policy. Nothing in deed about timeframe f/ construction or memorial. Also courts have
interpretive presumption against forfeitures (cutting off a deed is disfavored).

I. Restraints on Alienation
1. Disability restraint
a. Directly forbids owner from transferring interest in property.
b. O: To A and her heir, but any transfer shall be null and void
c. Remedy: court should undo grantees transfer.
d. Eyed w/ most suspicion by courts
2. Promissory restraint
a. Grantee promises not to alienate her interest in the property.
b. O: To A if fee simple. A promises for herself, her heir, and her assignees that
Blackacre will not be transferred.
c. Remedy: money damages
3. Forfeiture restraint
a. Provides for a future interest that will vest if grantee tried to transfer
b. O conveys to A, but if A tries to transfer property, goes to B and heirs
c. Remedy: transfer property to future interest holder.
4. Partial vs. full restraints
a. Total restraints: generally held to be void by courts.
b. Partial restraints: limits or prohibits transfer to certain persons. Ex. Kelly
cant get land. Courts view them more favorably, esp. if imposed on non-fee
simple absolute interest (i.e. leasehold or life estate). May increase alienability
Transfer that requires approval of grantor
Right of first refusal
5. Policy issues
a. Promote autonomy of grantee
b. Promote social utility by enabling land to be transferred to highest value use
c. Partial restraints favored over total restraints b/c they disfavor forfeiture.
Transfer encourages and fosters markets.
d. On the other hand, restraints on alienability not always bad. Ex. restraints on
low income housing may serve to ensure their continued availability.
Riste v. Eastern Washington Bible Camp
P acquired propertyProperty shall not be resold without written approval by seller, and land may
only be used consistent w/ denominations teachings. D argues its only a partial disabling

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restraint b/c asks for approval of grantor, thus it doesnt prohibit any and all alienation. Bible
camp wants court to undo transfer. El Di and 564 Acres church uses land use restrictions to
restrict activity to that in keeping with religious tenets. Court: unreasonable restrictions. WA antidiscrimination law says cant restrict covenants based on creed. Defeasible fee (i.e. fee simple
subject to condition subsequent)? Still repugnant? Singer says formalism (cant manipulate).
Hankins v. Mathews
A.A. Henkins dies testate (w/ will) and conveys his interests to his wife Sara (life estate) and then
to Jim Grubb (nephew), who has vested remainder subject to divestment. 25 acre tract. AAs will:
grantee not allowed to sell land for 10 years, otherwise land goes to AAs heirs at law. Jim tries to
transfer property to Mathews within 10-year period. Heirs at law sue Mathews, say property
forfeited to them. Court: restriction not allowed despite partial restraint. Grantor cannot
subsequently divest Grubb of importance incidence of ownership (i.e. right to sell, mortgage).
Horse Pond
1958 Horse Pond property to members and back w/ restrictions on alienation: (1) 100% members
must vote on conveyance (2) Club officially dissolved. Example of self-paternalization
(political/corporate unit imposes restriction upon itself at time T1 to control action at T2). 1987
Club registers as charity. 1988 want to trade land for Hollis Property + $150K. D votes down
deal, thus its void. P: deed unreasonable restraint against alienation. Trial court: restraint
unreasonable, b/c shouldnt have to dissolve club to transfer land. App. Ct: remands b/c exception
for gift to charitable entity. (Rest.). Rule applies to charity, but if sale in their best interest,
restriction can be voided by court (want to encourage charitable donation).
Roper v. Edwards
Grandma in dispute with P, settlement says she conveys in fee simple absolute 136 acres to Ds,
except for 1 acre not to be encumbered. Ds get 1 acre if grandma doesnt specify in will.
Grandma says 1 acre to granddaughter. Roper doesnt honor settlement agreement and will. Trial
court: condition annexed to creation of fee simple creating restraint on alienation void. Appellate
court reverses on grounds of equity, gives 1 acre to P. Creates constructive trust, like Race (even
though D argues no fraud). Court: only wrongdoing against equity and good conscience.

J. Restraints on Alienation for Intellectual Property

1. First Sale Doctrine: Once IP owner makes or authorizes sale of copy of her work,
no IP right to control terms and conditions of subsequent resale or redistribution.
Applicable in copyright, trademark, patent, and right of publicity (Allison).
2. Right of publicity: violated when D appropriates, w/o consent, ones name,
likeness or persona to advertise Ds business, product or other commercial
purpose. Ex. Nunziato sells Juan Dixon posters. Is right to publicity descendable?

Bobbs Merrill
Retail price book = $1, no dealer licensed to sell for less. Under 1901 copyright act, author has
sole right to print, copy and vend. Bobbs Merrill: right includes right to specify terms and
conditions of resale (like patents). Macys: no further right to impose alienation after 1st sale.
Court: no analogy, its a question of statutory construction. Authority to control future retail sales
via notice would give right not included in statute. Are contractual privies bound? Yes, by setting
terms that restrict sale to 3d parties, but Sherman Act against retail price fixing.
Allison v. Vintage Sports Plaques

27

Allison (wife of race car driver) and Orel Hershiser sue for infringement of licensure rights,
violation of right of publicity and conspiracy. Had agreements with licensed distributors of
trading cards. D mounts trading cards, sells as Limited Edition. D: first sale doctrine applies to
right of publicity, we already paid legit price set by licensed distributors. Court analogizes to
common law invasion of privacy tort in AL. Protection of IP property must give way to policy
disfavoring restraints on alienation

K. Rule against Perpetuities

1. Imposes limits on owners regarding their control of who will own the land in the
future. Owner cannot create a future interest that is vested too remotely in time.
2. Fundamental purpose:
a. Limiting dead hand control
b. Limiting power of current owners to create certain types of future interest that
will come into effect too far in the future.
Ex. 1820: O conveys Blackacre To A and her heirs so long as used for
school purposes, then to B and her heirs. 1990: Blackacre stops use
for school purposes. Bs heirs/devisees claim right to Blackacre.
c. Promotes free transfer of property
3. Only CONTINGENT FUTURE INTEREST Subject to RAP
a. Fee Simple Subject to Executory Limitation
b. Contingent Remainders
c. All future interests in grantor are exempt from RAP (possibility of
reverter, rights of entry, reversions)
d. Only future interests in 3rd parties exempt from RAP are vested remainders.
4. Rule: RAP strikes as invalid the above-specified types of interests that are not
certain to vest within 21 years after the death of someone who is alive at the
creation of the interest
a. Creation of the interest
If a conveyance at moment of the conveyance
If a will time when testator dies
b. Vest
(1) Executory interest = when contingency occurs
Ex. 1940 conveyance To A so long as Blackacre used for residential
purposes, then to B. 1990 used for commercial purpose. 1990
moment of vesting
(2) Contingent remainders = when contingency removed. NOT when future
interest becomes possessory.
Ex. 1940: To A for life, then to B if B becomes a Senator. 1990 B
becomes Senator. 1995 A dies. 1990 = moment of vesting. 1995
future interest becomes possessory.
b. Life in Being
Person alive at moment interest is created
Look at people named in conveyance, and descendents and ancestors
Ex. To A for life, then to the children of B. Focus on A, B, and Bs
children to see if the yare lives in being at the creation of the interest.
4. Remedy
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a. If interest violates RAP, strike offending language

Ex. O: To A so long as used for residential purposes, then to B Then
to B is executory interest that violates RAP. Might not vest within 21
years of death of life being at creation of interest. Strike line through last
clause. To A so long as used for residential purposes.
b. Use default rule of filling gaps with future interest in grantor.
Above example, fee simple determinable with possibility of reverter in O.
5. Modern Modification
a. Wait and see test: courts will not hold that FI violates RAP until the
perpetuities period (21 years after death of relevant lives in being at time of
creation) has passed and FI has not vested.
b. Cy pre/equitable modification: Some states equitably reform conveyance that
violates RAP because of too long age limit.
c. Uniform Statutory RAP (1/2 states): future interest that violates traditional
rule validated if interest vests at any time within 90 years of the date of its
creation. Employs wait and see doctrine.
6. FIVE STEP PROGRAM FOR RAP
a. Identify each interest created by the conveyance
b. For contingent remainders, vested remainders subject to open, or executory
interests, state the contingency
c. State whether the contingency is personal (related to some persons life, death,
achievement) or not. If non-personal/administrative contingency, go to step 5
d. For personal contingencies,
(1) Find all determining lives (those within which or within 21 years of
which contingency will be resolved).
(2) Look at validating lives. If determining life is in being at creation of
interest, its a validating life, and interest valid under RAP.
e. For non-personal/administrative contingencies (and personal contingencies for
which you cannot find validating life), determine whether resolution of
contingency certain within 21 years. If so, interest valid under RAP
Central Delaware County Authority v. Greyhound Corp.
Two pieces of land sold to Authority in fee simple are subject to restrictive covenant: To
Authority so long as used for public purpose, but if the land shall ever be used for non-public
purpose, Baldwin shall have right to repurchase at a set fee of $5500. Authority operated sewage
plant on property, later sued for violation of RAP. Trial ct.: not unreasonable restraint on
alienation. Appeals court: restriction was option to purchase, subject to RAP. Courts have
preference. Public policy interest (encouraging donation f/ public purpose) doesnt outweigh RAP

7. Pre-emptive rights
a. Right to purchase at fixed value. Courts look unfavorably upon this.
b. Right of first refusal permits pre-emptoror to purchase at market value
c. Right of pre-emptoror to purchase property at price equal to bona fide offer
Cambridge v. East Slope Investment Corp.
Declaration in condominium association creates pre-emption right. One owner wants to sell, other
owners have 5 days to match. Corporate interests (Vail, CO?). East Slope has to give notice to
assn. Cambridge Co. exercises right of pre-emption to buy condo offered to Burgetts. East Slope
ignores Cambridge offer, Cambridge wants $50K and specific performance (set aside sale). Court:

29

RAP doesnt apply to situations involving pre-emptive rights. Court says pre-emptive right does
not restrain alienation b/c not disincentive for improving property. Counterargument (Singer):
pre-emptive right might discourage buyers from negotiating for sale, other condo owners get
lowest price (short circuit the market), parents couldnt sell to kids for $1

L. Racial Discrimination in Covenants

1. 14th Amendment: No state shall deny to any person within its jurisdiction the
equal protection of the laws. How can we
a. Regulate private transfers of future interests in property w/o state action?
b. Get 14th Am. to regulate discriminatory behavior?
c. Ex. Nunziato leaves property to son so long as he doesnt marry a Jew.
Poletown (can landowners impose restrictions on alienability of property to
only have Polish-Americans in neighborhood)
Shelley v. Kraemer
Imposes racially restrictive covenants: restricts lease or sale of property to members of certain
religious, racial or ethnic groups. 1945 Fitzgerald conveyed deed to Shelleys (no notice of
covenant). Fitzgeralds property subject to restrictions (47/57 parcels). Relief: divest Shelleys of
title. Trial ct: invalid b/c not all property owners agreed to it. Sup. Ct.: reverses, covenant
enforceable.
Enforceable under real covenant doctrine? NO. Horizontal privity doesnt include agreements btw
neighbors not part of simultaneous conveyance of property right. ES? Dont know. Implied
reciprocal servitudes not unanimous # parcels affected may imply this. No common owner.
U.S. Sup. Ct.: 14th Am. doesnt prohibit discriminatory private action itself, but enforceability of
private agreement by lower court constitutes state action in violation of equal protection.
Barringer
Barringers

-----------------------------> Charlotte Park

--for use as park (only by whites)
<-----------------------------otherwise reverts to Barringers upon payment of $3500

There is defeasible fee with future interest in grantor. Park stopped excluding blacks pursuant to
public accommodation laws. B sues to get future interest in property. B: fee simple determinable.
Park: fee simple subject to condition subsequent? Court: its fee simple determinable and
reversion to Barringer is automatic. Since they dont have to sue and thus invoke state action via
enforcement (see Shelley), deed is valid. Nunziato thinks its wrong.

M. Waste
1. Voluntary waste: life tenants deliberately commits destructive acts re: property
2. Permissive waste: life tenant fails to exercise due care of land so as to benefit
future interests (i.e. negligence)
3. Ameliorative waste: life tenant changes the subject property in way inconsistent
with grantors wishes, but which actually increase the value or utility of property

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Moore v. Phillips
Leslie Brannan dies, leaves life estate to wife Ada w/ remainder interests in Dorothy (estranged
daughter), Kent (grandson). House deteriorated. Ada died testate, left to others. Dorothy sues to
recover f/ deterioration of farmhouse on theory of waste. Court grants ~ $10K damages. Defenses by
executrix: estoppel; laches. Issue: were Ada and estate delayed by Dorothy not bringing suit right
away? Dist. Ct: permissive waste proven w/o a doubt. Court: OK for estranged daughter not to bother
mother while alive. No prejudice to estate. If tenant alive, she couldnt have disputed the disrepair.
Baker v. Weedon
Weedon has intent to exclude daughters in will, bequeaths property to Anna (3d wife). She has life
estate, her children have contingent remainder and Weedons grandkids have future interest. Govt
wants right-of-way through farm to build highway, negotiates w/ remaindermen (they didnt have
notice until then). P works out fair arrangement with Anna. Property valued around $170K f/
commercial purposes at time of trial. Future value (4+ years) $336K (b/c highway runs through
property). Lower ct.: put in trust b/c continuing use of property as farm would result in economic
waste. P argues that should hold out until property value goes up. App. Ct.: waste not exclusive
reason to force sale of land. Allow f/ part of property to appreciate in value for a few years.

X. Leaseholds
A. Joint Tenancy
1. Two or more people own a single, unified interest in real or personal property
2. Formalities (c/l): joint tenants needed unity of time, title, interest and possession.
3. Elements

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a. Right of Survivorship. If two joint tenants, and one dies, the other becomes
the sole owner of the interest the two of them previously owned jointly
b. Severance. Joint tenancy can be destroyed (thus creating a tenancy in
common) and both parties lose right of survivorship.
Ex. if A sells her one-half undivided interest to C, the joint tenancy
between A and B is severed, and B loses right of survivorship
c. Possession: all joint tenants have the right to possess the entire premises
d. Equal shares: joint tenants must possess equal fractional undivided interests.
e. Unity of time/title: interests must be created via single instrument at same time
4. Joint tenants cannot leave their interests to devisees via will (unless severance)
B. Tenancy in Common
1. Each party has a separate and undivided interest
2. No right of survivorship (most important difference f/ joint tenancy)
3. Interest is inheritable. If tenant in common dies, interest can pass through will
4. Tenants in common may have unequal shares
5. Most states have presumption in favor of tenancies in common
Tenhet v. Boswell
Joint tenant leases interest in the joint tenancy property to a third person (D). After he dies, P
(other joint tenant) sought to establish her sole right to possession as surviving tenant. Issue: does
the lease serve to sever the joint tenancy? P: destroys unities of interest/possession. D: lease only
valid during lessors lifetime (more like life estate pur autrie vie). Court: no severance unless
express intent of parties (e.g. bring action to partition). D (lessee) not entitled to continuation of
lease, as that would destroy whole point of joint tenancy. P retains right of survivorship.
Thompson v. Larson
Jonathan Larson (Rent author) collaborated w/ P (dramaturg) for several months before Rent hits
Broadway. She had contract w/ NYTW, not Larson. Radical transformation took place.
Copyright interest transferred to his heirs upon Larsons death (IP transfers via intestacy or will).
P asks for 16% royalties, they offer 1 or 2%. Statute/case law: look at a) independently
copyrightable contributions b) intention of joint authorship. Court: objective factors (billing,
retention of decision-making authority) and subjective (Larson thought he was sole author) both
show she is not a co-author. Heirs win. Court punts on copyright infringement claim.

C. Tenancy by the Entirety

1. Form of joint tenancy available only to married couples (~20 states)
2. Elements
a. Co-owners must be legally married (doesnt apply to gay/lesbian partners)
b. Property cannot be partitioned, except through divorce proceeding
c. In most states, interest cannot be sold, transferred, or encumbered, w/o
express consent of the spouse
d. No severance (i.e. right of survivorship cannot be destroyed)
e. In most states, creditors cannot attach property held through tenancy by the
entirety to satisfy debts of one spouse
Sawada v. Endo
Ps injured in car accident by Kokichi Endo. Mrs. Sawada sues Endo, a month later (7/69) Ds
jointly convey house to sons (even though they still live there). 1/71 Ps prevail against Ds, win

32

$25K judgment. Mrs. Endo dies 10 days later. Unable to satisfy judgment, P tries to set aside Ds
conveyance. Court: husband cant convey w/o wifes consent. Iron clad rule. Creditors dont
deserve special exception. Policy interest in keeping tenancy in the entirety (favor families over
creditors). Dissent: law of fraudulent conveyance applies, and subject to attachment by creditors.

D. Condominiums
1. Residents own individual units in fee simple, common areas owned collectively
2. Each unit owner member of condominium association.
a. Makes decisions about how common areas are controlled, use of property.
b. Voting interest proportional to size of unit ownership.
c. Declaration: defines condos management structure. Has power to pass
restrictions to affect ones use and condition of own condominium. May also
be binding on subsequent owners (real covenants or equitable servitudes).
3. Statutes can modify common law, e.g. govern how condo associations can act.
Often waive touch and concern requirement.
4. Type of restrictions: (a) Use restrictions (aesthetics) (b) Must get permission for
construction or renovation; (c) # of people living in unit; (d) payment of dues and
membership to association; (e) pet ownership
5. Types of conflicts (often btw unit owners and condo developer)
a. Condo developer who owned all units and had supermajority power tries to
maintain control over sale and disposition of units.
b. Condo has right of first refusal. Cf. Park Slope
E. Cooperatives
1. Entire building owned by non-profit corporation, and individual owners buy
shares in corporation, then lease the units back from the cooperative
2. Much financial interdependence. Entire co-op financed by one mortgage.
3. Co-op boards can require extensive interviews, screening.
4. Courts more favorable to allowing for restrictions on sale/alienability.
5. Statutes may provide for rent control
OBuck v. Cottonwood Village Condo Assn
OBucks bought into condo b/c allowed antennas, 1984 assn spent $150K to fix roof then
prohibited antennas. Made cable available, offered to pay f/ installation (+ $10/month per set).
Declaration authorizes board to make restrictions re: common areas (incl. roofs) but owners must
be on notice, and non-discriminatory. Court: doesnt address notice. Reasonableness test.
OBucks expert disproved roof-leakage defense, but condo board cites aesthetics and increased
marketability to justify. Residents must sacrifice some freedom of choice, but would look w/
closer scrutiny when more compelling interest (e.g. civil liberty) at issue.

Breene v. Plaza Towers Condo

Ps bought w/ no restrictions on alienation except right of first refusal, but declaration could be
amended by vote of condo assn. 1979 amendments passed, not recorded. P wants to lease unit,
doesnt fall under exceptions, and is denied leave from president. Court looks at fair notice to
purchaser of condo unit (including constructive notice). Interprets statute governing management
of condos in ND: Owner shall, prior to conveyance, record declaration of restrictions. Must be

33

done before owner bound. Amendments enforceable only if within particular scope (e.g. common
areas, maintenance).

F. Landlord-Tenant Relations
1. Landlord transfers possession of property for specified period of time. Following
that time, landlord retains reversion, or third party retains remainder.
2. Landlord can only lease property he is able to lease
3. Commercial vs. Residential Tenancies
a. Courts more inclined to adopt c/l rules regulating terms of residential leases
than of commercial leases. Trying to protect unequal bargaining power.
b. Assumption that commercial tenants have more bargaining power/ expertise
4. Types of Tenancy
a. Term of years end automatically upon end of specified period of time
Most states, if term > 1 year, must be in writing (to satisfy stat. of frauds)
b. Periodic tenancy renews automatically unless terminated.
States require set period of notice before any party can terminate
Not terminated by death of landlord or tenant
c. Tenancy at will can be ended by either party w/o notice
Abolished by notice requirement in many states
Terminated by death of landlord/tenant
d. Holdover tenancy rightful tenant overstays lease. Cant treat as trespassor.
G. Landlords Remedies and Self-help
1. Landlords Rights
a. Receive rent
b. Right to not have property damaged doctrine of waste
c. Regain possession at expiration of lease (i.e. reversion)
2. Landlords Remedies (to get back property)
a. Sue for possession
(1) Ejectment proceeding. Caveat: takes long time
(2) Summary process (fast). Limited defenses f/ tenant
b. Self-help. Courts split.
Berg v. Wiley
P operated restaurant on property (leased from D). Restrictions in lease said no renovations
w/o permission from landlord, and landlord has right to retake. Landlord tried to get P to
improve conditions, demands completion by 7/13/73. D sees P removing paneling from wall,
uses as justification f/ self-help. Locks her out. P sues f/ wrongful eviction, IIED. D:
defenses of abandonment and counterclaim f/ damages. Court: common law had traditional
right to self-help, as long as (1) landlord has legal right to possession and (2) re-entry is
peaceable. Prospectively, adopt modern doctrine: any and all forms of self-help are
prohibited. Matters should be brought to court.

c. Self-help in the IP context

Software licenses. UCITA (Uniform Computer Information Transactions
Act) = sets default terms btw software licensors/ licensees. Can licensor
use electronic self-help to lock out licensee?

34

If underlying justification for prohibiting self-help is prohibit lessor f/

being own judge and jury, good reason to prohibit electronic self-help
UCITA restricts self-help: where breach of peace result; if reason to
know would be substantial harm to public interest or natl security
3. Landlords Remedy for Tenant Breach (when tenant breaches and leaves)
a. Accept Tenants Surrender and sue for Damages
Not legally obligated to pay for future rent
Liable for damages for breach of the lease. Measured by estimate of the
amount landlord lost by tenants failure to perform.
Rental price fair market price + reasonable cost to find new tenant)
b. Re-let premises on tenants account while refusing to accept surrender
Landlord must find replacement tenant
Landlord can sue tenant f/ difference between your rental price and the
new (reasonable) rent actually received f/ new lessee
c. Wait and Sue for rent at end of the lease term (c/l rule)
Modified by modern doctrine imposing duty on landlord to mitigate
damages. If L fails to mitigate, amount of damages will be reduced by
amount that would have been reasonably avoided by Ls efforts.
Not enforceable obligation in that landlord MUST re-let
Uniform Residential Landlord and Tenant Act (some states) says rental
agreement terminates if landlord fails to mitigate damages
Sommer v. Kridel
D breaks 2-yr. lease, paid $690 security deposit/first months rent. Landlord didnt show
apartment to anyone for another year. Prospective tenant ready/able to rent same apartment.
Re-lets in September 1973 f/ same rent. P sues to recover entire rent due from 5/1/72
4/30/74. D: P failed to mitigate damages, accepted surrender of premises by not replying to
letter. Court: NJ used to follow common law, but decides to adopt modern rule, and treat
lease as contract. Landlord must mitigate damages.

I. Tenants Rights
1. 2 main ideas: (1) Right to habitable premises (2) Quiet enjoyment of premises
2. 1970s tenants rights revolution following contract doctrines of implied
warranties of merchantability and FFPP. Specifically re: urban dwellings/leases
3. Common law: caveat lessee. As tenant, you know what you are getting into.
4. Implied warranty of quiet enjoyment premises
a. Landlord promises to not disturb tenants ability to peacefully and beneficially
use the property
b. If breach, there is some category of eviction
(1) Actual eviction If landlord prohibits entry. Can be total or partial
Tenants obligation to pay rent ceases
W/ partial actual eviction, tenants duty to pay rent for that portion of
premises ceases
(2) Constructive eviction tenants quiet enjoyment is substantially
disturbed by landlord or acts under the landlords control

35

When landlord allows conditions to deteriorate to unlivable conditions,

its functionally equivalent to actual eviction
Traditionally, tenant must abandon premises to raise this defense.
Modern trend (see Minjak) is no abandonment requirement
What if constructive condition not caused by landlord?
--Traditional rule: landlord generally not responsible f/ acts of other
tenants, unless includes clause obligating other tenant to not disturb
--Modern trend: can enforce warranty of quiet enjoyment even w/o
specific clause

Minjak v. Randolph
Landlord commenced action f/ unpaid rent by D. D had commercial lease, used most of space
f/ music studio, part f/ residence. Landlord responsible f/ renovation of apartment, as well as
conduct of upstairs Jacuzzi tenants. Sandblasting f/ upstairs. Landlords workers demolished
stairs w/o signage. Trial court found f/ Ds and awarded punitive damages, but appellate court
reversed (cannot use defense of constructive eviction). Should we adopt rule that tenants have
to abandon premises? Seems unfair to tenants (big burden). Court restores punitive damages
and gives Ds 80% abatement to back rent.
Blackett v. Olanoff
P suing f/ unpaid rent, D claims constructive eviction. Landlord leases commercial and
residential premises next to each other. Lounge next door is disturbing Ds quiet enjoyment.
P claims its rowdy patrons are causing the problem. When is landlord held responsible f/
conduct of other tenants? When (1) landlord can control disturbing tenant (2) disturbing
condition is natural/probable consequence of landlords actions. Landlord has control over
commercial tenant, and vicarious control over patrons. Look at non-repetition of conduct.

5. Implied Warranty of Habitability

a. Adopted in overwhelming majority of states, though only some extend to
commercial leases
b. Tenant can use IWH as either a shield (defense to non-payment of rent) or
sword (affirmatively sue landlord for breach).
c. Waivers of IWH are not tolerated by most courts. Defeats public policy
purpose (reaction to unequal bargaining power/scarcity of housing)
d. Clearer and less strict standard than Warranty of Quiet Enjoyment
(1) Mere negligence suffices (WQE = need affirmative action by landlord)
(2) No abandonment requirement
(3) Objective standard: violation must run afoul of relevant housing code
and be more than a de minimus violation? (WQE = nebulous)
6. Tenants Remedies for Implied Warranty of Habitability
a. Rescission tenant may repudiate contract and move out before end of
lease term w/o being liable f/ remaining rent
b. Rent withholding tenant has a legal right to stop paying rent and can
use IWH as defense to suit f/ payment of back rent. Advisable for tenants
to deposit money in escrow account (some states require this). Tenants
usually must notify landlord of problem before withholding
c. Rent abatement tenant ordinarily entitled to reduction in rent

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d.
e.
f.
g.
h.

(1) Fair Market Value test tenant pays fair market value of property in
its current condition
(2) Difference in Value tenants rent abated by difference btw fair
market value as warranted and fair market value as is
(3) Proportional Value (Rest. approach) tenants rent abated according
to proportional diminution of value (i.e. contract price x % diminution)
Repair and deduct tenant pays f/ repairs, then deducts costs f/ rent
Injunctive relief or specific performance some states allow P to bring
suit to force landlord to obey housing code and make repairs
Administrative remedies tenant can call in local housing authorities,
who can order inspection and bring court action f/ injunctive relief
Criminal penalties state building code statutes can include fines and
imprisonment (making landlords live in their own decrepit buildings!)
Compensatory damages above and beyond rent abatement; may need to
prove negligence or IIED

George Washington University v. Weintraub

GW law student tenants sue for property damage and housing expenses incurred due to landlord
water repair gone awry. Sue f/ negligence and breach of warranty of habitability. Issue: can a
party use implied warranty of habitability as sword (aff. claim)? Trial/app. courts say yes. Can
IWH be waived by exculpation clause? NO. But court rejects tenants strict liability argument:
must show landlord had actual or constructive knowledge of condition. If there is notice
(constructive or actual), landlord must exercise reasonable care to maintain rental premises in
compliance with housing code in order to comply with implied warranty of habitability.

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