a.

Three branches:
i. REAL property (i.e. LAND)
1. Non-moveable, cannot be consumed, tangible
2. RIVALROUS = people FIGHT over this resource; giving something a property interest
makes it rivalrous

ii. Personal Property

1. Goods, moveable, tangible
2. RIVALROUS
3. RULE of FIRST POSSESSION (capture)
a. Ownership goes to the first person to “reduce a thing to certain control”
i. INTENT is KEY**
ii. Close enough: based on the facts, would a reasonable person be on
notice that this thing is under certain control?
iii. Constructive Possession: MIGHT be close enough as long as a person
shows SOME control.
b. MUST be CLEAR to others that someone owns this thing
c. Efficiency is the KEY (not concerned with what is FAIR)
d. Superior Relative Title: possessor gets the presumption of ownership until the
actual owner shows up and can prove original ownership.
i. Finders Statutes: quiet title to personal property after a certain amount
of time (kind of like AP)
1. Not all states have these statutes
2. T.O. must engage in a “diligent inquiry” – normal use by the
possessor is not enough to put T.O. on notice
e. LEASE: i.e. renting a car
i. OK if it satisfies the four requirements of a LEASE
1. Irrevocable, exclusive right to possess and use
2. For an identified period of time
3. For the payment of rent
4. Reversion back to the freehold owner (i.e. Hertz, etc)
4. Accession:
a. If you own something, you also own all of its integral parts (i.e. if you own a car,
you also own the parts inside the car)
5. Natural Fruits:
a. If you have a plant that produces seeds, then you own the seeds
i. Some people are patenting gene sequences inside of seeds (i.e. to make
them pesticide resistant, etc)
6. Ownership:
a. If owner agrees to let you have something, they lose all of their rights to own
that thing.
7. Conversion: someone TOOK your personal property
a. Replevin = you get your property back
b. Trover = compensated for its FMV
i. If converter no longer has the thing, there is a presumption against him
for the highest FMV (this encourages a duty of care)
ii. If intentionally withheld = punitive damages

iii. Intangible Property: first to record ownership = owner

 1. Intellectual Property
a. RULE: Ideas, if not legally protected, are subject to a free-for-all
b. Trademarks
i. “signaling the marketplace”
ii. Protecting the concept, not the physical manifestation of a thing
iii. Brand names

c. Copyrights
i. Law of expression
ii. NEEDS originality and certain control (fixed in a tangible form –
certificate of authenticity, etc)
d. Patents (incentives to invest in ideas)
i. NEEDS absolute novelty
ii. Right to exclude & convey
iii. LIMITED right (usually a time limit – 10 years, etc)
iv. Infringement = punitive damages if actual knowledge
e. Requires a NEW idea AND an INVENTIVE EFFORT
f. NON-RIVALROUS because many can have the same idea
g. Leases of Intellectual Property = LICENSES (same lease relationship for real
property)

2. General Intangibles
a. Everything else (stocks, bonds, ownership interest)
b. RIVALROUS
c. Personal Property rules apply*
d. Generally, do not get leased

3. Conveyance:
a. Voluntary Transfers of Intangible Property:
i. Forms are the same for real property
1. Gifts
2. Wills
3. Contracts
4. MUST be in writing & recorded
b. Involuntary Transfers of Intangible Property:
i. Statute of limitations is SHORT
ii. Patents and Copyrights EXPIRE

b. OWNERSHIP: gives you the “bundle of rights”

i. First Possession: The first person to take the property out of the COMMON and place it under
their control = owner.
1. Chasing is NOT enough; must have possession (Pierson v. Post)

ii. DISCOVERY of land: start from European conquest of America, trace back ALL valid
conveyances**
iii. Intangible Property: the first to record ownership = owner
iv. Abandonment releases property back to the “common.”
1. Standard: would a reasonable person looking at these facts think that this thing was
abandoned?

v. Animal Escape:
 1. Domesticated Animals – original owner still has a claim of non-abandonment
2. Wild Animals – owner’s claim lapses & animal may be captured
a. Exception: if unusual and exotic, we might presume escape

vi. Superior Relative Title (SRT):

1. Person with possession is PRESUMED OWNER, until the true owner returns to claim
property
a. True owner = whoever is closest to the last VALID conveyance
b. “Ratione Soli” = owner of real property constructively possesses anything found
on their land.
c. “JUS TERTII” – third party “holds” the “thing” for the true owner so that they
do not have to pay damages TWICE.
i. Fairness issue

d. Subrogation:
i. Example: A buys something from B, then C (the true owner) shows up.
To avoid paying damages to C, A can force B to pay damages to C.

vii. Re-establishing FIRST POSSESSION:

1. Abandoned Property: intentionally and voluntarily relinquishes ALL right title and
interest; finder gets ownership against ALL, including the prior owner
2. Mislaid Property: owner voluntarily puts property somewhere, and forgets; finder gets
ownership, subject only to true owner
3. LOST property: owner unintentionally and involuntarily parts with property; ownership
established by STATUTORY time period (until then, finder has ownership subject to true
owner.
a. If IMBEDDED IN LAND, then to the landowner.
b. If not, to the finder.
4. Treasure Trove: hidden or concealed for such a length of time that the owner is presumed
dead; finder gets ownerships subject only to true owner.

5. Finder cannot be a trespasser – i.e. must be LAWFUL

a. Public Place = more likely to the FINDER
b. Private Place = more likely to the LANDOWNER

6. FINDER’S LAWS = statutory

a. Requires prompt notice of the “finding”
b. MUST publish notice in general circulation
c. If no one claims the property within a certain amount of time, it becomes
abandoned & title is cleared
d. Finder may then claim first possession.

viii. What is OWNED?

1. Land: you own everything that is “FIXED” BELOW the surface and ABOVE; with
some exceptions –

a. Migratory Resources (OIL, GAS, WATER)

i. STEP 1: call an expert!
 ii. Oil & Gas:
1. First Capture RULE: you CANNOT go onto another’s
property (on the surface or underneath) to get resources, BUT if
you can get the resource “migrate” to your land = you own it.
2. Over-exploitation problem: take as much as you can as fast as
you can.

iii. Water:
1. Look at statutes – OR has a Water Act and all water is publicly
owned and regulated.

2. Surface Water:
a. East Coast:
i. Riparian Rights: those alongside the water
“own” it
ii. First to Reduce to Possession: must have a
reasonably productive use, and must avoid
inequity or undue harm.
b. West Coast:
i. First Appropriation: first beneficial user gets a
vested right for that use, and gets priority over
everyone else. Nature of the Use v. the quantity
taken; problem: who has these rights?
3. Ground Water:
a. Channel?
i. Same RULE as surface water (east coast vs.
west coast)
b. Percolating?
i. East Coast: Like the Oil & Gas rule of first
capture
ii. West Coast: SAME as surface water RULE
(vested rights to the first appropriator)

b. Airspace: there are limits to how far up your property rights extend – airspace is
federally regulated.
i. RULE: you own nothing that you cannot subject to your dominion

II. Was that property CONVEYED?

a. VOLUNTARY CONVEYANCES: voluntary exchanges –

i. Valid Form?
1. Will/Intestate
2. Contract
3. Gift
4. In writing?
5. Recorded?

ii. Derivative Title: New owner can ONLY get as much as the seller had to give**
1. What did the prior owner INTEND to convey?
2. DEFAULT: give the MOST!
3. Statute of Frauds & Recording –
 a. ANY interest in land MUST be in writing & recorded.
b. Exception:
i. Leases LESS than one year
ii. Conveyance by operation of LAW

4. Recording Acts: efficient way to trace back valid conveyances

a. “race” – FIRST to record WINS
b. “Notice” – 2nd buyer gets title IF he was acting in good faith (did not have notice
of the first buyer) AND was a bona fide purchaser for value.
i. Buyer is acting in BAD FAITH if he has –
1. Actual notice
2. Constructive notice: he should have checked
3. Inquiry notice: would a reasonable person have checked? If so, B
is acting in bad faith.
c. “race notice” – OREGON RULE; 2nd buyer HAD to have been acting in good
faith AND has to record FIRST*

iii. BAILMENTS – creates TWO “bundles” bailor/bailee

1. Bailee: right to possess against the world
2. Bailor: right to get it back from the bailee
3. Voluntary = i.e. renting a car
4. Involuntary = finding something → Go with DEFAULTS above

5. Requirements:
a. Delivery without transfer of ownership
b. Implied or express acceptance
c. Implied or express agreement that the goods will be returned.

6. DUTY OF CARE:
a. Solely for the benefit of the bailor = SLIGHT DUTY
b. Mutual Benefit = ORDINARY DUTY
c. Solely for the benefit of the bailee = GREAT CARE (almost SL)

7. Voidable Title: i.e. selling a car and getting a bad check

a. NOT for gifts, only for sales
b. Victim had to be operating in GOOD FAITH
c. Victim had to be a bona fide purchaser for VALUE
d. Victim had to have detrimentally relied
i. Title is voidable until the item is SOLD to someone else.
ii. Seller can still sue for damages

8. Entrustment:
a. Requires a MERCHANT
b. When you “bail” an item to a merchant that deals with goods of that kind and a
good faith buyer reasonably assumes that good is part of their inventory.
i. Bailor can sue for damages

9. Equitable Estoppel:
a. If seller did something to cause a good faith buyer to detrimentally rely, the law
will allow the property to stay with the buyer.

iv. WILLS:
 1. Dead person = testamentary gift with no consideration
2. STATUTES control

3. A valid will MUST HAVE:

a. INTENT
b. CAPACITY to make will
c. In writing
d. SIGNED by non-interested witnesses
e. NOTARIZED

4. Will is ONLY EFFECTIVE UPON DEATH

5. Will can be REVOKED by a subsequent will (automatically) or conveyance of a THING
(i.e. sold house before death)
6. Can only will what you have**
7. Intestate = death without a will
a. Statutes govern distribution among HEIRS**

v. INTER VIVOS GIFTS: gifts while alive

1. CL governs**
2. Requirements:
a. Donative Intent
b. Acceptance by donee
i. Will be presumed if beneficial to the donee
c. Delivery
i. Actual, constructive, or symbolic (i.e. giving a set of keys when the gift
is actually a car)
1. As long as CLEAR INTENT, constructive and symbolic deliver
is ENOUGH.
ii. Donor intends to divest himself of dominion and control
iii. Clear and unambiguous

3. Conditional Gifts:
a. If condition occurs, gift becomes IRREVOCABLE
b. If condition does not occur, donor gets it back.
c. Condition Subsequent: condition is AFTER the gift, and failure of the condition
means the gifts will revert back to the donor.
i. Example: I will give you this car, so long as you graduate from law
school; if not, I get the car back.
d. Condition Precedent: condition must happen BEFORE the gift
i. Example: When you graduate from law school, I will give you this car;
no graduation = no car.

4. CAUSA MORTIS GIFTS: gifts given upon “death bed”

a. Expectation of death is subjective: donor just has to think they are dying.
i. Gift is immediately binding.
ii. Gifts are REVOCABLE, however, until death, when they become
irrevocable.
5. Conditions can be VOID AS AGAINST PUBLIC POLICY
a. Example: deals for sex, coercion

b. INVOLUNTARY CONVEYANCES:
i. Condemnation: taking the ENTIRE bundle of rights**
1. Requires:
i. GOVERNMENT TAKING –
1. Of Property
2. From an Owner
ii. Due Process/Just compensation –
1. “rational basis” review
2. Fair Market Value
a. Fight is usually here**
iii. Taking MUST be for PUBLIC USE –
1. Direct use by public
2. Kelo case: taking for a private company but the public was going
to derive SOME benefit so, OK
b. “Inverse Condemnation”: when governmental regulation removes ANY feasible
use of your property without an actual “taking.”

2. Adverse Possession: conveyance by OPERATION OF LAW

a. EXCLUSIVELY STATUTORY
b. Non-owner (trespasser who thinks it’s their property stays for a long time) will
be given title through A.P.
c. BURDEN is always on the AP
i. Affirmative Defense to a TRESPASS claim**
d. If consensual = no AP
i. Burden is on T.O. to show CONSENT
ii. What was consented to?
iii. T.O. can revoke consent
1. If AP stays after consent is revoked = statutory period begins
iv. MUST be in writing
1. If not in writing:
a. Personal = not connected to land, any sale of land
terminates the consent, and clock starts running
b. Pertinent = consent “runs with” the land even when sold
or transferred.

e. Possession is ADVERSE if:

i. OPEN: visible to a reasonable person
1. Doesn’t have to be something you can actually SEE, just that
you can see enough to put owner on notice
2. “notice of concern”
ii. NOTORIOUS: the people of the community consider AP to be the
actual owner
1. PUBLIC RELIANCE
iii. ACTUAL: AP is physically present
1. AP doesn’t necessary have to LIVE THERE
2. Example: vacation home, or logger
iv. CONTINUOUS: AP is P/U like the TO would for the statutory period.
1. Discontinuous use OK as long as AP is using the property
according to the “character of the property”
a. Example: LOGGING case
v. EXCLUSIVE: AP is the one and only person who possesses the
property.
 vi. HOSTILE: AP’s possession is adverse to any other’s ownership interest
1. WILL be PRESUMED, if AP can prove other five elements.
2. Objective approach:
a. Would an objective, reasonable person view AP’s
actions and conclude they were the owner?
b. MAJORITY APPROACH
3. Good Faith approach:
a. AP must have an honest belief based on a reasonable
basis.
4. Intent to Claim approach:
a. AP had subjective intent to claim the land, regardless of
where actual boundary was.
b. Bad faith = AP wins??
f. Statutory Period:
i. MAJORITY = 10 years
ii. Look it up**
iii. Policy: depends on immediate need for land

g. TACKING:
i. Can add up time of AP between owners if they are in privity of estate
with one another –
1. Privity occurs by CONTRACT OF SALE, GIFT,
INHERITANCE

h. TOLLING: when we “pause” the statute of limitations for the OWNER**

i. MUST exist as the beginning of AP
1. Disabled – incapacitated or mentally ill
2. Minor
3. Military
4. Prisoners
ii. Lasts only until the reason for tolling is gone (i.e. minor turns 18, or
owner gets out of prison).
iii. Justification: concern for owners (how can they be on notice if they are
in prison?)
i. CANNOT AP against the government**
j. Color of Title: any semblance of title will trigger full amount of land to the AP
(i.e. if he is AP 5 acres, he might be the title to all 40 acres)

3. OTHER RELATED DOCTRINES: If no valid conveyance, and claim for adverse

possession does not work –

a. Estoppel: MOST important

i. T.O. is estopped from ejecting the adverse possessor because the adverse
possessor detrimentally relied on the statements or actions of the T.O.
ii. Not a situation of consent; T.O. was mistaken and adverse possessor
relied.
iii. Did the T.O. understand that their actions looked like encouragement?
iv. Reliance MUST have been reasonable.
1. Remedy: reliance damages – usually give the adverse possessor
the easement because money damages might not be enough to
make them whole.
 b. Mutual Recognition & Acquiescence: LEAST important
i. T.O.’s informal recognition of a monument as the boundary makes that
monument the boundary line.
1. MUST be fixed on the ground
2. MUST be in good faith
3. MUST be for the whole statutory period

c. The Good Faith Improver:

i. Adverse possessor builds something on the wrong land.
1. If moveable, adverse possessor takes it with them.
2. If attached, it becomes a fixture.
a. Remedy: reliance damages OR restitution because the
T.O. was unjustly enriched by the improvement to their
land.
ii. Betterment Statutes: in some states
1. Adverse possessor pays damages for the trespass, but since the
property was improved and the T.O. was unjustly enriched, T.O.
must pay the difference.

4. Adverse Possessor’s rights are exempt from the Statute of Frauds and the Recording
Acts
a. Solutions:
i. Ejectment suit → record the judgment
ii. Quiet Title Action → record the judgment
1. Adverse Possessor sues to have the land titled in their name and
avoid potential future lawsuits.
2. T.O. sues to quiet title against any future A.P. claims

III. WHAT “BUNDLE OF STICKS” WAS CONVEYED??

a. ESTATES & POSSESSION: Possess, Use, Exclude, Convey

i. WHAT was conveyed? The “bundle of sticks”

1. ALWAYS look to the INTENT OF THE GRANTOR

2. DEFAULT = presume to give grantee the MOST**
3. There can NEVER be gaps in ownership
a. Fill the gap = reversion to the grantor
4. Grantee can NEVER get more than DERIVATIVE TITLE

5. FIXTURES
a. Something that goes with the property when it is conveyed because it is FIXED
to the surface
i. Did the owner INTEND to leave it there permanently?
ii. Will it HARM the property to remove it?
iii. Is it PURPOSE-BUILT for this location?
1. Specifically made with this property in mind?
iv. Example: house, shed, crops, trees, bushes are usually fixtures.
1. Animals are personal property
2. Fish in the creek on the property are WILD, so they belong to the
owner of the property while on the property; after that, owner no
longer has ownership.
ii. TYPES OF FREEHOLD ESTATES

1. Fee-Simple Absolute
a. MAXIMUM ownership bundle
b. No future interests
c. Indefinite duration
d. NO de-feasing conditions attached
e. “To A and his heirs”

2. Life Estate
a. PPI, terminated when grantee DIES
b. Reverts back to grantor
c. “To A for life”

d. Remainder: the person holding the FUTURE INTEREST*

i. Law of WASTE: obligations of the holder of the estate to whoever has

the future interest

1. Voluntary Waste:
a. Harms CAUSED by life tenant
b. Intentional and Negligent = must take reasonable care
for reasonable use
c. “Open Mines” Doctrine = life tenant can use property
for whatever use that it is meant for (i.e. if you inherit a
mine, you can continue to mine)

2. Permissive Waste: take steps to prevent HARM even if it

wasn’t your fault
a. Make all ordinary and necessary repairs (i.e. leaky pipes,
broken windows, putting out a fire)
b. Pay all current charges – property taxes and mortgage
interest, not principle (which is to be paid by the future
interest holder)

3. Ameliorative Waste:
a. Making improvements to the property
i. Rule is NO CHANGE, unless
ii. It is necessary to avoid harm, AND
iii. Actually produces a clear increase in value,
AND
iv. Has to be done in good faith
b. Future Interest holder can always consent**

4. Economic Waste: when income from property is insufficient to

cover the property costs
a. Last resort: life tenant must be actually losing the
property, and this is the only way
b. Action to sell property or use it for a different purpose
i. F.I. holders can object
3. Fee-Tail Estate:
a. Series of life estates as long as there is an heir
b. If no heir, reverts back to the grantor
c. ABOLISHED IN VIRTUALLY EVERY STATE
d. March 9 notes
i. Solutions:
1. It becomes FSA automatically, OR
2. After one life estate, becomes FSA

4. Conditional Estates:
a. Restrictions on the bundle of rights
b. Can apply to ANY estate (FSA, LE, etc)
c. Benefits: encourages transactions
d. Harms: traps estates in an ineffective use for a long time
e. Remedies:
i. Enforce as a covenant, then grantor gets damages for breach

ii. FORFEITURE: reverts back to grantor if condition breached

1. EITHER AUTOMATIC OR “OPTION”
2. Look @ grantor’s intent
a. Fee Simple Determinable: one thought; “To A, so long
as…….; AUTOMATIC forfeiture if condition breached
b. Fee Simple Subject to a Condition Subsequent: two
thoughts; “To A, so long as…, but if A fails to…, I can
get it back.” NON-AUTOMATIC – grantor has to
exercise power of reversion.
c. Executory Interest: if property is to go to a 3rd party
after condition is breached, forfeiture is AUTOMATIC,
unless contrary clear intent.
d. DEFAULT = give the most (condition subsequent);
ALSO, courts might enforce as a “covenant”
iii. Rights are fully transferable, with ANY condition attached.

f. ENFORCING CONDITIONS
i. PROVE there was a condition
ii. PROVE whether or not it was breached
iii. Restraints on Alienation:
1. Direct Interference: Can’t forbid the sale of property = VOID
as against public policy
2. Indirect Restraints: Can condition that the property be used a
certain way, BUT
a. must be REASONABLE**

g. RULE AGAINST PERPETUITIES:

i. Seeks to address the “dead hand” controlling from the grave problem
– conditions can’t last forever
ii. Void IN THREE SITUATIONS:
1. Open-ended conditions are always VOID
2. If the vesting age is over 21 (if condition won’t happen in 21
years = VOID)
 3. If there’s multiple class F.I.’s (i.e. mother → child →
grandchildren) = VOID
iii. Reforms:
1. Wait and see what happens (or adjust the grant)
2. Many states have 90 year statutes**
3. Use a covenant instead.

b. CO-OWNERSHIP?

i. Concurrent Interests: multiple owners at the same time

1. Look @ GRANTOR’S INTENT

2. Tenancy in Common:
a. Equal, simultaneous rights to P/U, convey, can exclude anyone except co-tenants
b. If one conveys, can only give derivative title.
c. If ambiguous or when others don’t apply, this is the DEFAULT
d. Severance:
1. Mutual agreement
2. Right of Partition = ask the court to partition the property equally
among the tenants

3. Joint Tenancy WITH right of Survivorship:

a. R of S: when one tenant dies, the other gets their share BY OPERATION OF
LAW
b. Four Unities – if broken, this becomes a T in C
i. Each got the SAME TITLE
ii. At the SAME TIME
iii. Giving them the SAME INTEREST
iv. With the SAME RIGHTS OF POSSESSION
c. Severance:
i. Mutual agreement
ii. Right of Partition
iii. Unilateral Destruction of the 4 unities

4. Tenancy by the Entirety:

i. ONLY for married couples
ii. MUST be married @ the time of conveyance
iii. The “marriage” owns the property = NEITHER party can sever
iv. Severance:
1. Either the parties mutually agreed, OR
2. Divorce destroys the tenancy, becomes T in C

5. DEFAULT = Tenancy in Common

a. DEFAULTS if conflicts between tenants cannot be resolved:

i. Contribution: tenant required to pay his “pro rata” (equal) share of the
property’s carrying charges – taxes, mortgage payments, etc…
1. Can ONLY sue for what is owed currently, NOT FUTURE
PAYMENTS
2. These are charges that would cause you to LOSE the property if
you didn’t pay them – usually doesn’t involve utilities
 ii. Accounting: if a co-tenant gets external benefit income from the
property, they are required to share the PROFITS with the co-tenants.
1. NET benefit = (profits – costs)

iii. Partition: severs tenancy, and DIVIDES property

1. A LAST RESORT → Courts prefer “in kind”
2. Tenant can just ask for the court to do this without having to
prove anything.
a. In kind: physical division (i.e. draw a line down the
middle), and if this is unsuccessful --
b. By sale: Judicial sale of the property and divide the
proceeds.

b. REPAIRS OR IMPROVEMENTS:
i. Repairs:
1. MUST be necessary to protect property’s value, AND
2. Can ONLY recover your PRO RATA share of the reasonable
cost (NOT what you actually paid)
ii. Improvements:
1. Determined by MARKET VALUE
iii. BURDEN is on the tenant making the repairs to prove that it is necessary
and reasonable.

c. OUSTER:
i. Can be legal or physical (i.e. locking co-tenants out)
ii. Can’t just say “I’m uncomfortable,” MUST be SERIOUS

ii. NON-FREEHOLD ESTATES

1. Common Elements:
a. Property rights are conveyed to a 3rd party (tenant) with an underlying free-hold
estate
b. Property rights are part of the TITLE; not just contractual in nature

2. LEASES:
a. irrevocable, exclusive right to P/U,
b. for an identified period of time,
c. for the payment of rent,
d. with reversion back to the freehold owner

e. Applies to ALL forms of property

f. Ownership Analysis is the SAME
i. No writing required if less than one year

g. Statute of Frauds: Leases longer than ONE YEAR must be in writing

i. If NOT in writing:
1. Property View: Tenancy @ Will & can be terminated whenever
2. Contracts View: Part performance means that the lease will be
enforced if this is how the parties have been performing

h. Recording Acts: short term leases (less than one year) are exempt
 i. Periodic Lease = short term (i.e. monthly) & exempt

i. Real Property:

i. START WITH INTENT OF THE PARTIES

ii. ALWAYS distinguish residential (by statute) vs. commercial leases

(common law)
1. Residential Statutes have immutable rules (mandatory rules)
that cannot be contracted away

iii. Property view (majority, but not for long) = as long as tenant is in
possession, can’t complain and MUST pay rent

iv. Contracts view (growing minority) = MATERIAL BREACH; tenant

can terminate if LL breach affected the benefit of the bargain (i.e.
breach was material)

v. COVENANT OF QUIET ENJOYMENT: LL, his agent, or anyone

holding paramount title may NOT physically interfere with tenant’s right
of exclusive possession.
1. Total Interference = constructive OUSTER**

2. Can be PARTIAL ouster:

a. Partial Property view: “one inch rule” – depriving a
tenant of even one inch is a breach of the covenant of
QE
b. Partial Contract view: breach has to be material; if not
material, just sue under contract for damages

3. Remedies:
a. Action for Repossession when LL is trespassing = no
rent while not in possession
b. Terminate Lease = no rent
c. Compensatory Damages = loss of FMV (must be
foreseeable)

j. Length of Time: HOW LONG DOES A LEASE LAST?

i. Periodic Tenancy: successive, identical periods (i.e. $1500/month)

1. NO specific end date
2. Automatically RENEWS
a. Termination:
i. Requires notice of at least one full period prior
ii. Now, statutes fix a required number of days

ii. Tenancy for Years: ANY fixed term or duration (a month, year, etc…)
1. IMPORTANT: This HAS AN END DATE**
a. Termination:
i. Just expires = no need for notice
 iii. Tenancy at will: NO discussion of TIME; can transform into any other
kind (either by agreement or implication)
1. Termination:
a. By either party AT ANY TIME; just requires an intent to
terminate

iv. Tenancy at Severance: “holdover tenant” = trespasser

1. LL can either
a. EVICT & sue for damages
b. Set up a new agreement (lease)
c. Can raise the rent with NOTICE, Majority view is that
tenant must actually accept; minority view is OK if
reasonable

k. CONVEYANCE of a lease:

i. DEFAULT: CAN always convey because it is good to have free

assignability of contracts**
1. Restraints on Alienability NOT OK; but LL can require consent
for transfers of the lease –
a. Minority (growing) = withholding consent MUST be
reasonable & IN GOOD FAITH
b. Majority = withholding consent is OK for ANY reason
c. Provisions will be STRICTLY CONSTRUED**

ii. LIABILITY after conveyance:

1. Privity of CONTRACT: the parties to the contract are always

liable
a. Horizontal Privity = parties to the original K (always
liable)
b. Vertical Privity = T conveying to new tenant (new
tenant not always liable to LL)

2. Privity of ESTATE:

a. Assignment: Tenant assigns the ENTIRE estate to a new

tenant, with reversion back to the LL = LL CAN sue
new tenant because they are in privity
i. Original tenant can be released from liability
after assignment, if a NOVATION occurs.
ii. LL Assignment: SAME analysis; LL’s usually
put clauses in the lease relieving them of all
liability after assignment (unequal bargaining
power)
iii. Subordination Clauses: give the subsequent
buyer of property the decision of whether or not
to keep the tenant

b. Sublease: Tenant only assigns PART of the estate, with

reversion back to the tenant = LL cannot sue new tenant,
but CAN sue tenant.
 3. COVENANTS that “run with the land” become part of the
TITLE:
a. Need –
i. Intent
ii. Notice
iii. Privity of Estate
iv. MUST “touch and concern” the land (Leases
always do)

l. CONDITION OF THE PREMISES – LL’s OBLIGATIONS

i. ALWAYS start with INTENT (although with residential leases, there

are certain things a tenant cannot contract away)
ii. “caveat lessee” – let the tenant beware
1. In this case, LL only liable for –
a. Latent Defects
b. Common areas

iii. Covenant of QE & Constructive Eviction:

1. Requires substantial, intentional interference that

permanently deprives tenant of use and enjoyment
a. Significant, but fleeting interference = not good enough
b. Minor, but permanent interference = not good enough

2. Act must be attributable to the LL, his agents, or a

paramount title holder
a. Action
b. Inaction in the face of a DUTY
i. LL generally NOT responsible for acts of third
parties, unless there is a duty

3. If tenant was to terminate, they must vacate within a

reasonable time
a. Tenant should at least give LL notice

4. Remedies:
a. Stay on the lease & sue for damages
b. If material breach, tenant may terminate the lease &
Leave

iv. Holdover Tenants: i.e. premises not ready for new tenant
1. American Rule: no breach by LL, tenant must take care of it
2. English Rule: LL’s obligation to ensure the premises are ready
for the new tenant
a. Majority in U.S. follow English Rule**

v. Implied Warranty of Habitability: ongoing promise**

1. POLICY DRIVEN**
 2. ONLY APPLIES TO RESIDENTIAL LEASES
a. Might apply to commercial leases if they involve human
habitation.

3. Requirements:

a. Premises must be FIT for HUMAN HABITATION

i. Cannot violate housing code
ii. Cannot be a danger to health and safety
iii. Normal, basic services are attached (i.e. running
water, heat, plumbing)

b. Condition is in accord with the uses reasonably

intended by the parties, AND

c. Tenants cannot be subjected to conditions endangering

or detrimental to their life, health, or safety

4. In MOST states, this is mandatory = parties CANNOT contract

this away
a. Not a MUST in all states: if you push LL’s too far, they
will stop renting to tenants and this is bad for the
economy (not efficient)
5. Applies to LL, even when condition is not their fault

6. Tenant MUST
a. GIVE NOTICE of defect, AND
b. GIVE LL A REASONABLE TIME TO CURE
i. LL must only “resolve the inadequacy”

7. Remedies: “per se constructive eviction”

a. Stay, pay rent, and SUE
b. Vacate, and SUE
c. Special Remedies:
i. Stay, and ABATE RENT
ii. REPAIR, and deduct from rent

8. BIG PROBLEM = these tenants usually do not know they have

these rights**

m. TENANTS OBLIGATIONS:
i. Always start with the INTENT of the LEASE

ii. Defaults:
1. WASTE –
a. Voluntary Waste:
i. Tenant is liable for ANY damage they caused
ii. Statutes usually limit this to 2-3x monthly rent
b. Permissive Waste:
i. Tenant NOT liable for paying taxes and
mortgage interest (NOT a co-owner)
ii. Tenant must ONLY prevent extra damages
 iii. Focus on “urgency” – tenant may have to fix
certain things
c. Ameliorative Waste:
i. Generally, not OK for a tenant to improve the
premises
ii. Any fixtures become part of the freehold and
revert back to the freeholder.

iii. LL’s REMEDIES:

1. Sue on the lease
2. Get an injunction
3. If material breach, terminate the lease

iv. Regulatory Compliance: who bears the costs of upgrades when a

regulation demands it?
1. WHY has the regulation been triggered?
a. Because of Tenant?
i. Tenant is required to pay
b. Anything else?
i. LL is obligated to pay

v. Casualty – when neither the LL nor the tenant is at fault

1. Property View:
a. Tenant still has possession, so tenant is still required to
pay rent.
2. Contracts View:
a. TOTAL DESTRUCTION – impossibility or
frustration of purpose = lease terminated and tenant is
no longer required to pay rent
b. MUST meet those requirements
c. If a tenant stays, they imply that the purpose has NOT
been frustrated.

n. LL’s Remedies for TENANT BREACH

i. Always start with the INTENT of the LEASE
ii. Defaults:
1. Is the Tenant still there? (in possession)
2. Is the Tenant gone? (abandoned)
iii. Statutes:
1. Some statutes require notice (i.e. 10 days) to tenant and
opportunity to cure when they are late on rent before LL is
allowed to seek damages

iv. TENANT IN POSSESSION:

1. LL can sue ON the Lease

a. Damages
b. Injunction
c. Problem – LL can only sue for THIS and past breaches
(i.e. failing to pay this month), CANNOT sue for future
breaches (i.e. failing to pay rent NEXT month)
 2. LL can TERMINATE/EVICT & SUE for damages
a. Property view:
i. Can ONLY terminate for failure to pay rent
ii. Can only recover the unpaid rent

b. Contracts view:
i. Can terminate for ANY material breach
ii. Allows LL to recover ALL contract remedies

c. EVICTION --
i. Self Help: locking tenant out
ii. Problems: LL must make sure they are right (or
else THEY are in material breach); and there is a
problem of violence.
iii. Forcible Entry & Detainer Statutes (FED
STATUTES): required in most states; LL
cannot forcibly evict or detain personal property;
forces legal remedies (effort to prevent
violence). Short Term Eviction Proceedings –
enforced by the sheriff; moves very quickly
when traditional lawsuits take YEARS.

v. TENANT HAS ABANDONED

1. LL can SUE on the Lease
2. LL can Terminate Lease
a. BUT did tenant terminate the lease upon abandonment?
b. MOST LL’s want to terminate (unless it’s worth it to sue
tenant for all future rent payments)
i. In some commercial leases, monthly rent is tens
of thousands of dollars

3. CAN LL re-enter the premises?

a. Re-claiming the premises means LL has impliedly
accepted tenant’s termination (and terminates tenant’s
liability to pay any future rent)

b. Property View:
i. LL can preserve the right to sue on the lease,
if they do not accept tenant’s surrender.
ii. Statutes determine what counts as acceptance of
tenant’s termination: i.e. taking the keys is NOT
enough, but if the LL makes significant changes
to the premises, this might = acceptance of
termination.

c. Contracts View: evolving MAJORITY view

i. Anticipatory Repudiation: inferring from
tenant’s conduct that they intend to breach; LL
can get contracts remedies
ii. DUTY to Mitigate: i.e. cannot just let premises
sit vacant when LL could easily find a new
tenant.
 4. What about tenant’s STUFF?
a. LL risks being sued for conversion; unless
b. ABANDONED –
i. On LL’s property, tenant becomes a “holdover
tenant”
ii. LL becomes a “bailee” → for how long? Who
pays for storage?
iii. FED Statutes = sheriff holds tenant’s personal
belongings for a period of time until they
become “legally abandoned”
iv. LL CANNOT hold tenant’s things
HOSTAGE for the payment of rent
c. Fixtures become property of the LL.

3. EASEMENTS: constraints on the use and enjoyment of land; NOT amounting to a

LEASE

a. IRREVOCABLE (most)
i. If revocable, most likely a license.
b. MOST common in REAL property & Intellectual Property (i.e. licenses to use
software, for example)
i. Uncommon in Personal Property & General Intangibles
c. Real Property = State CL
i. One Exception: statutes dealing with planned developments
d. SAME analysis for conveyances & co-owners

e. ANALYSIS:
i. Has an easement been created?
1. Intent?
2. Valid Form?
ii. Is the Chain of Title valid re: conveyances?
iii. What is the “bundle”?
1. Intent?
2. Defaults?
a. Give the MOST under the circumstances
b. Rule of Reason
i. Purpose
ii. Kind
iii. Intensity
iv. Location
v. Duration
vi. Conveyance

f. Affirmative Easements:
i. Non-Exclusive; ON-GOING INTEREST
1. ALWAYS start with INTENT**
ii. RIGHT to enter and USE property for some specific purpose
1. Example: right to build a driveway to cross neighbor’s property
iii. Profit Apprendre:
1. Specific purpose is to enter property and REMOVE something
(i.e. logging, fishing, hunting, etc…)
 iv. License:
1. Right to enter and use, but REVOCABLE at will

v. Creating an Affirmative Easement:

1. Express Grant: to a third party
2. Express Reservation: grantor reserving the right for themselves
3. Implied by Operation of Law: discussed below
a. Presumed Intent
b. Estoppel

g. Negative Easements:
i. NO entry; Right to require or prevent an owner from doing
something on THEIR property.

ii. Creating a Negative Easement:

1. Can ONLY be created by EXPRESS grants or reservations;
NEVER IMPLIED**
2. Four Narrow Categories:
a. Flow of Light or Air (or view)
b. Support of Building
c. Flow of an Artificial Stream
d. CONSERVATION –
i. Can prevent development of all land; potentially
FOREVER
ii. Those affected get a tax deduction.
3. Negative Easements are strictly limited to these four
categories – anything else = promissory servitude.

h. Conveying an Affirmative Easement:

i. Valid Form:
1. Voluntary?
a. Contract
b. Will on Death
c. Gift
2. By Operation of Law?
a. DO NOT need to be in writing

ii. Statute of Frauds:

1. MUST be in writing AND recorded**
2. Unless, short term lease or by operation of law

iii. Defaults:

1. APPURTENANT: something increasing the value of the user’s

property.
a. The Easement is BOUND UP with another estate and
will automatically convey with the benefitted estate
b. Factors:
i. The more connected the burdened property is
with the use & enjoyment of the benefitted
property = more likely appurtenant.
 ii. If user paid for easement = more likely
appurtenant.
iii. A commercial easement is ALWAYS
appurtenant to the commercial activity
c. If unclear = go with appurtenant because that is the
MOST

2. IN GROSS: personal easement only for the benefit of a

particular person (usually if THAT person is named)
a. CANNOT be transferred with property
b. Factors:
i. A specific name = more likely personal
ii. “During their life…”
iii. “To the congregation during church services…”

i. DEFAULTS – the Rule of Reason (weigh the BENEFIT to the USER of the
easement against the BURDEN on the servient estate)
i. RIGHT of Entry:
1. Purpose?
2. Kind of Use?
3. Degree of Use?
4. Location?
ii. DURATION:
1. “Reasonable under the Circumstances”
2. Usually perpetual; but can be subject to limitation (parties’ can
always agree otherwise)

j. IMPLIED EASEMENTS: easements By Operation of LAW

i. By Presumed Intent:

1. Subdivision Plats: when a plat map shows roads accessing the

properties in a subdivision, and there is NO express easement, an
easement will be implied.
a. Do not need detrimental reliance

2. Necessity:
a. Necessity MUST arise on division of the property
b. MUST be strict necessity (i.e. there is NO other way)
i. Minority view: economic feasibility (if there is
another way but that is way too expensive)
c. Duration: lasts until the necessity goes away

3. Pre-existing Use:
a. MUST have unity of ownership (the division causes the
desire for the easement)
b. There MUST have been a pre-existing use
i. Apparent – the parties KNEW or should know
(Buried utilities = implied knowledge because
you know they are somewhere)
ii. Continuous – not transient; bound up in the
value of the property
 iii. Reasonable – would reasonable people have
presumed that use would continue after
division?

ii. Estoppel:

1. Action or Inaction (fault) that induced

2. Reasonable Reliance, that was
3. Acted Upon
a. Prescriptive Easements: SAME AS AP**
i. When someone acts as though they have an
easement; owner has “fair notice” that has been
ignored.
ii. Must be: actual, open, notorious, continuous,
exclusive, and hostile for the statutory period.
iii. Hostility Problem: use MUST interfere with
freeholder’s use of the property; this is hard to
prove.
iv. Presumption of PERMISSION**
v. Joint Construction is presumed hostile even
though it started out as permissive
vi. Open & Wild Lands: MUST prove hostile
(VERY HARD)

b. Equitable Estoppel: LAST RESORT (everything else

has failed)
i. Example: an express easement that failed under
the Statute of Frauds but induced reasonable
reliance that was acted upon.
ii. Property View: you get a REAL Easement;
what you should have gotten in the first place
(i.e. you get the boat dock because the purpose
of the easement was access to the lake)
iii. Contracts View: you get Reliance Damages
(i.e. whatever the useful life of a boat dock
would be)

k. SCOPE of Easements: Kind, Intensity, Location

i. ALWAYS start with INTENT of the easement**
ii. Default: Rule of Reason – reasonable people under the circumstances*

1. Maintenance of Easement:
a. Whoever BENEFITS from the easement is responsible
for maintaining it.
b. Standard:
i. Rule of Reason (benefit v. burden)
c. Remedy:
i. Injunction & damages

2. Improvements:
a. If the improvement is consistent with the kind and
intensity of the easement, it is probably OK
 b. CANNOT burden the servient estate
c. CANNOT increase hazards or harm

3. Expansion:
a. Example: easement to cross parcel A to get to parcel B,
what about to get to parcel C?
i. Easement was explicit = tough luck for the
owner of parcel C
b. If the easement is ambiguous, you might be able to get
more “use”
c. If easement is explicit, tough luck; goes to INTENT.

4. Apportionment:
a. Easement MUST be conveyable (transferrable) in order
to be apportioned – i.e. appurtenant, or commercial
i. If appurtenant, then family, friend, and service
providers may use the easement.
b. Subdivision: NOT per se too burdensome
i. You are simply changing the “reasonably
contemplated use”

c. Reasonable Expectation TEST: does the servient

owner also use the easement?
i. Yes + additional use interferes = NO
apportionment; if additional use does not
interfere = might be able to apportion.
ii. No: will apportionment cause undue burden or
harm? If yes = NO apportionment; No = can
apportion.

d. Profits: easement to enter property and remove

something
i. Non-exclusive (i.e. servient owner also uses) =
CANNOT apportion
ii. Exclusive = ONE STOCK RULE; apportion
the profit among the people…i.e. if 2 people,
they each get 50%)

iii. Servient Owner’s Obligations:

1. CANNOT unreasonably interfere with the benefit of the
easement (i.e. cannot block the road)
2. If maintaining, MUST avoid causing undue damage

iv. REMEDIES:
1. Violation of an easement = Trespass Remedies
a. Injunction
b. Damages – if intentional, maybe punitive damages

l. TERMINATION OF EASEMENTS:

i. Terms of the Grant:

1. If the grant gives an expiration date
 2. Forfeiture: if the grant gave a condition
3. Infer from the purpose of the easement; no more need =
easement terminated
4. Implied by necessity = terminates when the necessity ends
5. When it is conveyed to someone else

ii. Recording Acts:

1. If valid, but not recorded = terminated.
2. “Shelter principle” – if someone buys the servient estate, they
take that property free of your easement because it was not
recorded.

iii. Merger:
1. Owner of the dominant (benefitted) estate buys the servient
estate = termination of the easement FOREVER
2. Later division does not mean that easement comes back

iv. Abandonment: VERY hard to abandon an easement

1. Requires clear & convincing evidence of a SUBJECTIVE
intent to abandon.
a. An express statement
b. Action which is CLEARLY inconsistent with any
future desire to use
c. The presence of an alternative route is not dispositive of
abandonment; length of time between uses is not
dispositive

v. Prescription: servient estate interfering with easement holder’s right to

use for the statutory period
1. MIGHT also be evidence of abandonment
2. Consent to interfere = evidence of abandonment

vi. Relocation:
1. Changed Circumstances: when the purpose of the easement is
no longer needed or beneficial –
a. Terminate, OR
b. Move easement elsewhere
2. Impossibility:
a. Easement is terminated if it is impossible to use, or can
no longer be used.
3. When BURDEN outweighs BENEFIT:
a. Court hates to balance, because easement holder has a
right to exclude no matter what

4. PROMISSORY SERVITUDES (“restrictive covenants”): constraints on the use and

enjoyment of a neighbor’s land, NOT amounting to a LEASE
a. Arose out of nuisance law, zoning, contracts.
b. Negative Easements that are viewed as a promise under contract (categories
MUCH more broad than negative easements)
c. Attach to the TITLE of the land
i. Example: C. C. & R.’s in housing developments
d. “Real Covenants”: binding on subsequent title holders that are in privity of
estate (“run with the land”)
i. Renters are NOT in privity of estate
ii. Breach of real covenant = damages (including punitive), and injunction

e. “Equitable Servitudes”:
i. Do NOT get damages for breach of an equitable servitude
ii. Can ONLY get injunction

f. CURRENT RULES:

i. Identification:
1. Look for a negative right regarding the freeholder’s own ability
or inability to use THEIR property
2. NOT a negative easement (unless it falls into those four
categories)

ii. Chain of Title:

1. Valid form?
a. USUALLY contract form**
2. Statute of Frauds?
a. MUST be in writing
b. RARELY implied
3. Recording Act
a. Is it recorded?

iii. Requirements:

1. Intent:
a. Appurtenant:
i. Did the parties intend this to run with the land?
ii. Was there express language?
iii. Was there inferred intent?
b. In Gross:
i. Did the parties intend this as a personal
obligation?
ii. What would reasonable people do under the
circumstances?

2. Notice:
a. Use rules of the Recording Act
b. If recorded, we find notice
i. Almost never inquiry notice, because it is a
negative promise that cannot be seen.

3. Touch & Concern:

a. MUST affect BOTH the BURDENED & the
BENEFITTED land
b. Indirect benefit OK**
 c. CANNOT have a purely personal obligation; because
then it does not benefit any land (make the argument that
it MIGHT)
i. It might still be a contract, just not a promissory
servitude**

4. Privity of Estate – ONLY for REAL covenants**

a. Horizontal: creates the obligation in the first place

i. Successive interests (A sells to B) OR
simultaneous interests (co-owners)
ii. Two separate owners agreeing will NOT satisfy
privity of estate = NOT a real covenant**

b. Vertical:
i. Assignments: gets the ENTIRE estate, meaning
they are BOUND by the obligations created by
the promissory servitude (even in subdivisions)
ii. Subleases: WILL NOT work for promissory
servitudes because they DID NOT get the
WHOLE estate.

iv. Enforcement:
1. PROVE a promissory servitude existed
2. PROVE the requirements AND breach
3. Does it violate public policy?

v. Termination:
1. By its own terms:
a. Explicit expiration date
b. Inferred expiration from the purpose
2. Can sell it back to benefitted owner
a. Re-conveyance
b. MUST be in writing
3. Recording Acts
a. If not recorded, will NOT run with the land
4. Merger of the benefitted and burdened estate
5. Abandonment by NON-USE
a. Failure to enforce = abandonment
i. Requires a pattern of substantial, ongoing
non-enforcement.
6. Changed Circumstances:
a. When the purpose comes to an end and requiring the
covenant makes no sense
b. Covenant terminates; this is different than easements.