I.

Fundamentals
Introduction:
Types of property:
 Real property: real estate (EX: land titles)
 Personal property: Tangible v. intangible (EX: intellectual)
What does it mean to own something? Bundle of sticks.
 Possess: to have dominion or control over something
 If you purchase it, you know you own it (contract)
 Alter: You can destroy it
 Transfer/Convey/Devise: You can transfer ownership either through gift or sale
 Exclude:
 If someone takes it, I have legal remedies available to me to recapture it.
 When you have an ownership interest in something, it comes with a bundle of sticks.
 Destroy:
First Possession: Acquisition of Property by Discovery, Capture and Creation:
 Primary Possession:
 Discovery
 Capture
 Creation
A. Acquisition by Discovery/ First in Time
 Rule: First In Time, First in Right: I got here first, I am actively possessing it
 Occupancy/Possessory interest, not necessarily ownership interest
 Johnson v. M’Intosh-
 Land title transfers are only valid when made under the rule of the currently prevailing gov’t
 How did the court decide? They looked at who's title will stand up in court.
o The Indian’s rightful possession is important because if they didn’t rightfully possess then they have
no right in the first place to transfer rights over said possession.
o Indians had possessory interest (no transfer rights), but US interest greater bc they conquered
 Ruling basis: the best use of the land (till, plant, grow, etc) –US prevailed bc Indians: savages; US: ag.
B. Acquisition by Capture
I. The Rule of Capture: one acquires a property right in fugitive resources (moving) by so entrapping the
resource as to render its escape a virtual impossibility (deprives it of it’s liberty)
 Constructive possession - This doctrine provides that a landowner is considered as being in possession of a resource
that is on or in her land even if she does not have physical possession of it.
 When two persons claim the same unowned property, the law gives priority to the person who first
possessed it.
 The finder’s status is weaker if he is a trespasser, particularly on private land.
 Pierson v. Post-
 Holding: no rights to the animal because he was merely pursuing the animal, and it had not been wounded
by him. Pierson had the rights because he captured him.
 Depriving of its liberty by capture or mortal wounding > pursuit
 What would happen if one man in pursuit mortally wounded an animal and then ceased pursuit and walked
away?
o Abandonment = forfeiture of possessory interest
 What happens if you rule based on pursuit instead of capture?
o Pursuit is harder to define and therefore the rulings would vary and be inconsistent
 How can someone capture something and not win?
o They cannot actively interfere with the pursuit. You can get to it first, but you cannot interfere with
someone else’s enjoyment or their intent to capture.
o You also cannot capture something on another’s property& claim it as yours (constructive possession)
 Keeble v. Hickeringhill-
 Rule: He who hinders another in his trade/livelihood is liable to action for so hindering him.
 The fowl are wild, so the issue is not messing with someone’s owned animals (b/c then resource belongs to
property owner); D was maliciously interfering with P’s livelihood…unacceptable
 Big picture: courts tend to support the party who contributes to market
 Complete Possession: Complete dominion and control of the ball at the point in time that the momentum of the ball
and the fan –attempting to catch– ceases. (property & person must be stable & established)
 Dominion & control can come from custom (EX: lobsters in cage = possessed in lobster industry)
  Intent and Manifestation: Possession requires an individual to intend to take control of a ball and manifest that
intent by stopping its forward momentum whether or not complete control is achieved.
 Popov v. Hayashi-
 MLB doesn’t own the ball because it was intentionally abandoned at the hit; the next person that can
possess the intentionally abandoned object owns it.
 D was not a wrongdoer, he was a similar victim to P and when he picked up the ball, he attained
unequivocal dominion and control. P only est. a pre-possessory interest in the ball based on equity (not
est. a full right to possession protected from a legitimate claim)
 Awarding the ball to either party would be unfair because based on assumptions, therefore the men’s legal
claims to the ball are of equal quality and they are equally entitled…
 If D had maliciously interfered with P’s ability to catch, P’s inability to prove that he would have been
able to obtain complete control is irrelevant because P gets the ball due to D’s actions.
II. The Rule of Capture Applied to Other “Fugitive” Resources
a. Oil and gas:
 Mineral interests and surface estates can be split, or in one package (some - if title is silent, assumed they
go together)
 Occurs in the surface estate, but oil and gas do not stop at the property line…
 Each of us have the right to capture; general: the first person who gets to the resource, gets it
(issue: there is an incentive to remove the minerals quickly and more frequently)
b. Water:
 Water is always a state’s rights thing; water quality is federal
 Surface water allocation systems:
 Riparian Rights: (non-transferrable b/c you do not own it)
 Person’s property abuts/adjacent to a water body (location in relation to water)
 Everyone gets a right to reasonable use of that water (no one has more rights than another as
long as they are using it reasonably)
 Scope of the rights:
 Provides an interest in the use of water and not a property right in water
 You have a right only to use (you may not sell, transfer, or convey it)
 everyone must cut back during drought because everyone has a right to reasonable use; much
drier therefore there is less to have in the first place
 you may only use the water above the ground; you can transfer the right to property
 The value of the right is dependent on the time the right was acquired(older=better)
 Prior Appropriation: (transferrable because you lawfully obtain the rights)
 Anyone lawfully obtains an appropriation (location is irrelevant)
 A right is appropriated when available water is perfected and put to beneficial use
o Permit strength: determined by place in line
- First in time, first in right (priority is key);
 You must intend to use the water and divert it to do so
 You may not waste the water; priority is the key
 During drought, senior appropriator enforced their right by making a senior call
 Ground water allocation systems:
 Absolute ownership/rule of capture (English Rule)
 The law of the big pump wins, it doesn’t matter if you drain your neighbor
 Landowners have unqualified right to:
 Extract ground water beneath their property regardless of any consequences to
neighboring landowners or extraordinary conditions (EX: drought)
 Use for any purpose, on/off property (EX: sell, lease, export ground water)
 Exceptions to capture:
 Malicious intention to injure neighboring land
 Willful waste
 Negligent use that proximately causes the subsidence of neighboring land
 Reasonable Use (American rule)
 “reasonable” = what the court’s say it is.
 Correlative rights: looking at your right in comparison w/ your neighbor (“fair share rights”– even
though you can “big pump wins” must not abuse that right)
 Prior Appropriation: (^same; lawfully obtained; beneficial use)
III. The Tragedy of the Commons and the Economic Theory of Property
 Issue: Short term benefits v. long term detriment
  Overuse to try and benefit yourself, which results in everyone being harmed b/c resources = depleted
 EX: gov’t shutdown for gov’t benefit results in no one taking care of national parks
IV. Capture General Rule: Depriving an unclaimed object of its liberty, mortally wounding it, or both obtaining and
retaining dominion and control over the object in good faith. Capture may not be defined by mere pursuit, nor will it
be awarded if it is found to hinders another in his trade, or livelihood.
 Exception:
o Malicious interference
o If the land where you capture the object is land owned by another
o Animus revertendi- if an animal escapes, possessor loses property interest and the property is then subject
to the rule of capture BUT if it is the habit of return title is not lost
- An animal without intent to return is subject to the laws of capture because he is again considered a
wild animal
- A wild animal must be captured to perfect ownership. Pursuit is not enough, unless it has been
mortally wounded.
C. Constituting Ownership
I. Ownership as a “Bundle of Right”
 No right is absolute
II. Some Basic Aspects of Ownership
a. The Right to Exclude
 The intention does not have to be to trespass
 Jacque v. Steenberg Homes, Inc.- (civil trespass)
 Both the individual & society have a significant interest in deterring intentional trespass to land, regardless
of the measurable harm that results
 Barnard rule (P may not recover punitive where only nominal compensatory are found) should not apply
when the tort supporting the award is intentional trespass (SL)
 Rule: Lack of alternative route is not the plaintiff’s issue; they maintain the right to exclude
 Stake v. Shack- (criminal trespass)
 There was not a 100% exclusion, but an exclusion nonetheless
 Would a property owner’s right to exclude include the right to exclude services for those on the property?
No.
 Property rights serve human values. They are recognized to that end and are limited by it.
o Property ownership does not include dominion over the destiny of those permitted to enter;
their well-being must be the objective of the law
 Right not interfered w/: right to use his land as he wants (IF doesn’t interfere w/ another’s rights)
b. The Right to Transfer
 Andrus v. Allard-
 5th amendment: cannot deprive one of private property right for public use w/out compensation
 Permitting sale of protected goods to continue, allowing the possibility of commercial gain, presents a
special threat to the preservation because those prospects create a powerful incentive both to evade
statutory prohibitions, and may even encourage it farther than before.
 Where an owner possesses a whole bundle of property rights, the deprivation of one stick is not a
taking, because the aggregate must be viewed in its entirety.
o Regulations only restrict the right to sell…may still use all other rights (EX: trade)
c. The Right to Destroy
 Eyerman v. Mercantile Trust Co.-
 The rights of the dead are not absolute.
 You may not exercise your bundle of sticks without regard to how it impacts other people.
 Rule: We limit the amount of conditions that a person can impose on the living after they pass, especially
if it goes against public policy (or the good of the public in general)
d. The Public Trust and the Public Domain in Land
 Public Trust: In Texas, the land “is a title owned by the people and held in a trust by the State so that the
people may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free
from obstruction or interference from private parties. -Illinois Central R.R. Co.
 If you want to claim a public trust right, it
 Must be a public right initially
 Must be enforceable against government
 Can be interpreted with whatever the modern world is
 Matthews v. Bay Head Improvement Association-
 Public Trust: those normally being sued are the government actor
 o Can’t force every property owner to make their private property public (b/c= a 5th amend. taking)
 Solution: Association behaved as a municipality therefore they are a quasi-property
 Originally: allow fisherman; After: Expand the trust description w/ the modern times to recreational use
(swimming, resting, etc.) (b/c a public trust can be interpreted with whatever the modern world is)
 Rule: where it is necessary a court may create a quasi-property interest (a right created for the purposes of
ruling on a case {similar EX: constructive possession & pre-possessory interest})
D. Acquisition by Creation: Intro to Intellectual Property
 Reflection of ‘first in time’; general issue: “Did I put enough of my own spin on it to make it my own?”
I. Three Non-Traditional Intellectual Property Interests
a. Misappropriation (aka: “theft”)
 International News Service v. Associated Press-
 Whether there is any property in news: Not normally, but one created (quasi-property)
 The value of the news is keeping it fresh, therefore property interest in the news cannot be
maintained by keeping it secret; Except for matters published improperly (confidence breach), news
= common property.
 Whether D’s admitted course of conduct in appropriating for commercial use matter taken from bulletins
or early editions of AP publications constituted unfair competition in trade?
 business v. business is different than public v. business (not restricted) b/c INS is using their property
in a competitive manner for commercial purposes
 The news must be regarded as quasi property, irrespective of the rights of either v. the public
 Rule: A quasi-property right exists in published news such if stealing the published news gathered by
another for further commercial purposes constitutes unfair competition in trade (business v. business)
b. Property in One’s Persona: The Right to Publicity
 Rule: The right of publicity prevents an unauthorized commercial use of one’s name, likeness, and other
aspects of one’s “identity,” and gives the individual the exclusive right to license the commercial use of
these personal features.
 White v. Samsung Electronics America, Inc.-
 Rule: CL right to publicity will be violated when a celebrity’s identity is commercially exploited
o “identity is more flexible” – just b/c “robot” & not “Vanna”  enough to avoid liability
o Prossor (CL): “cannot benefit from someone’s persona without permission”; this application
could broaden (beyond identity) with the times
c. Property in One’s Person: Body Parts
 “Every man has a property interest in his own person, but…”
 Moore v. Regents of the University of California-
 Must determine there’s ownership rights in the property b/c only property can be converted
o Moore did not expect to retain them, he didn’t retain an ownership interest in them allowing him to
sue – same principle as intentional abandonment
o Public policy favors scientific research being furthered over personal economic gain
 Rule: once body parts leave a patient’s body, they are no longer that patient’s property
II. Three Core Intellectual Property Interests
a. Patents: refer to an invention
 Requirements:
i. Patentability: the invention fits in one of the general categories of patentable subject matter: “process,
machine, manufacture, or any composition of matter”
ii. Novelty: has not been preceded in identical form in public prior art
iii. Utility: minimal requirement; easily met if the invention offers some actual human benefit
iv. Non-obviousness: most important; if an invention is a sufficiently big technical advance over prior art
v. Enablement: requires the patent application to describe the invention in sufficient detail so that “one of
ordinary skill in the art” would be able to use the invention
 Diamond v. Chakrabarty-
 Rule: The laws of nature, physical phenomena, and abstract ideas have been held not patentable.
o A live human made microorganism is patentable subject matter
b. Copyrights: refer to the expression of an idea (geared toward artistic/literary works)
 3 requirements:
1) Originality: a) the work must be an independent creation of the author and b) must demonstrate at least
some minimal degree of creativity
2) Works of authorship: Copyright law protects expressions, not ideas. It protects the form or mode by
which ideas are expressed, rather than the ideas themselves.
 Strictly functional works (systems or procedures): protected by patent law, not copyright.
 3) Fixation: the work must be fixed in some kind of tangible medium
 The copyright holder has the right to prevent others from:
1) Reproducing the work;
2) Creating derivative works;
3) Distributing copies of the work to the public;
4) Performing the work publicly;
5) Displaying the work publicly; and
6) Performing the work by digital audio transmission
 Feist Publications, Inc. v. Rural Telephone Service Co.-
 Rule: The selection and arrangement of facts cannot be so mechanical or routine as to require no
creativity whatsoever. The standard of originality is low, but it does exist.
 Rural’s white pages do not satisfy the minimum constitutional standards they are typical, arranged
alphabetically, garden-variety & devoid of even the slightest trace of creativity.
 Eldred v. Ashcroft-
 Rule: The Copyright Clause’s requirement that copyrights be granted only for limited times does
not bar Congress from extending the terms of existing copyrights.
o balance the interests of the private and the public in property
c. Trademarks: used to help define a company brand
 Requirements:
 Distinctiveness- mark must distinguish the good or service of one person from those of another
 Non-functionality- If an aspect of a good is exclusively functional, it cannot be protected by trademark
law. A product feature is functional “if it is essential to the use or purpose, or if it affects the cost or
quality, of the article; if exclusive use of the feature would put competitors at a significant non-
reputation-related disadvantage” (if functional, get a patent)
 First use in trade- exclusive right to use a mark requires first use, not just first adoption, of the mark in a
particular geographic market. (must be in commerce; must make money off it)
 RULE: the products are the same (no TM) if it will it create confusion in the market place;
 even if the label doesn’t look the exact same, you violate based on similarities
 In Re Cordua Restaurants Inc.-
 pluralization commonly does not alter the meaning of a mark
 a term can be generic for a genus of goods and services if the relevant public understands the term to refer
to a key aspect of that genus
 “the test is not only whether the relevant public would itself use the term to describe the genus, but also
whether the relevant public would understand the term to be generic”
 “a registration is properly refused if the word is the generic name of any of the goods or services for
which registration is sought.”
d. IP law in a nutshell:
 Patents – processes and products which are novel, useful, and nonobvious
 Lasts 20 yrs from issue
 Doesn’t cover discover of something already in nature (functionality)
 Copyright- books, articles, art and other creative works
 Lasts 70 yrs after death of artist or perpetrator
 Subject to “fair use” of materials
 Narrated facts are not subject to protection. Complications of facts are protected (creativity)
 Trademark- words and symbols; must be distinct & of first impression
Subsequent Possession: Acquisition of Property by Find, Adverse Possession and Gift:
 Finders law, Adverse Possession, Gift
A. Acquisition by Find
a. Bailment:
 Rightful possession of goods by a person (a bailor) who is not the owner (a bailee).
 There is physical delivery of personal property (EX: jewelry, car valet, dry cleaner) by a prior possessor
(bailor) for a particular purpose – with an express or implied understanding that when the purpose is
complete, the property will be returned to the bailor.
 Bailment is created by an express or implied contract
a. Express: a result of a negotiation
b. Implied: coming into possession of another’s goods and the law imposes an obligation
 There must be physical control to create a bailment
 Bailment obligations – reasonable care under the circumstances
  Although parties can limit liability based on agreement, bailee cannot exempt itself from all liability for
negligence.
 Voidable v. Void:
o When a good faith purchaser buys from a bailor with voidable title she gains valid title
A. Voidable title (1) item voluntarily transferred by owner to subsequent possessor. (2)
Holder of voidable title can pass good title to a good faith purchaser for value.
o When a party has committed theft, and sells it to a BFP
B. Void title: no title to begin with (thieves have no title to transfer)
b. Finder’s Law:
 Between the finder and the subsequent owner, the finder has greater ownership rights.
 “Finder has superior rights over all other than the true owner.”
 Hannah v. Peel-
 Rule: if the land owner actually possesses the land, his claim to all things found on it is greater than
finder (but not true owner)
 If the land owner actually lived on the land, would the situation be different?
o Yes, because if he lived there, he has unquestionable rights
 Comparative Precedent:
o Shopkeeper & Money: the shop owner never knew, nor would have without coming forward…
finder’s rights > than the rights of the property owner (quasi-public place)
o Gas Co.: Owner got boat b/c was embedded in his land (therefore, part of the land)
o Service employee finds something on another’s property, turns into boss  rights est.
 Factors:
1) Identify the property? (lost, mislaid, or abandoned?)
 Lost: when the owner inadvertently loses possession
 Mislaid: if the owner intentionally placed it in a location and forgot to retrieve it
 Abandoned: owner intentionally relinquishes all rights with no intention to confer rights on any
particular person
2) Is the possession obtained in a public, or quasi-public, or private place?
 Public: finders rights >
 Quasi-public: if owner did not know, finders rights >
 Private: what is on their property is theirs; finders rights <
3) Who is the finder? (EX: employee, customer, etc.)
 Employee:  finder
4) Was the property embedded? If yes, then rights  est.
5) What were the expectations of the owner?
6) Which party ever had possession of the item or the property itself?
 Treasure Trove:
 American Law- owner of the land owns the treasure
 English Law- they sell the treasure to the museum and split the profits between the finders
B. Acquisition by Adverse Possession
I. The Theory of Adverse Possession:
 Allows good title to vest in a person if that person held the property adversely for a specified period of time as if
there had been a conveyance of title.
 If elements exist is a question of fact; burden of proof on the person seeking to possess property title
 Once they win (able to est. all elements) they have entire bundle of sticks (title completely passed)
 Provides a method of purifying title and destroying potential claims that might be burdensome
 Adverse possessor is entitled to the property only after they have done enough to warrant possession
 High standard you have to meet because of the impact of it (transferring property from one person to another
without consideration being given for it)
 An owner who sleeps too long not to notice the adverse possessor loses claim to her property; to ensure that the
land is being used in the best way
 If claiming AP against a life tenant, SOL does not start to run until life tenant dies, then only possesses life tenant’s
property
 You cannot adversely possess gov’t land
 The Theory of Adverse Possession: (3 theories)
i. Avoiding state claim:
ii. Quiet titles/correct title errors:
iii. Protecting personal attachments:
 Elements of Adverse Possession: (all must be fulfilled)
 i. Actual entry: you must actually have entered the property
o If you are only possessing 5 of 15 available acres, you may only get 5 you actually possess. (“not
going to give you more than you worked for”)
ii. Exclusive possession: it doesn’t mean no one else can come on; means that the owner cannot be sharing
the property with you; possessor dictates who can use/access the property
iii. Open and notorious: visible possession provides notice
iv. Hostile: you are there without permission
3 theories:
1) Bad faith: claim of right (where you know that the property is not yours, but you intend to
possess it anyways)
2) Good faith: color of title (where you believe that the property is yours, due to the terms of a
written legal document, that is for some reason incorrect)
3) State of mind of the possessor is ireelevnt. Rather, look at objective indications to determine if
adverse and hostile
v. Continuous and uninterrupted: use as a true owner would use it; doesn’t mean you have to be there
all day, every day
o Purpose: this puts the owner on notice…we transfer the land under adverse only when someone is
not using the property as they should
vi. Statutory period of time: all of these ^ things must be done w/in statutory period of time
II. Color of title v. claim of right (theories of ‘hostility’):
 Claim of right (aggressive trespass standard): possessor’s mere intent to take the land as one’s own
 Entitles you to the area of land you actually possess during statutory time
 “I thought I didn’t own it, but I wanted it!”
 Mistaken Boundary: not going to win b/c you had no hostile intent
 State of mind = relevant; Initial intent to be on it: to gain AP (clear, distinct, and unequivocal)
 Color of title (objective standard/good faith): possessor holds the property pursuant to a written instrument or
court decree of judgment which appears to convey record title, but is for some reason defective as a conveyance
 EX: A receives a tax deed to Blackacre which is in fact defective. Believing he has title, A goes into
possession. A is an adverse possessor under color of title.
 Entitles you to whole property even if you only occupy part – based on constructive possession of all
writing describes – relaxes “possession” element
 State of mind is irrelevant – sheer presence on the land meets the standard
 Mistaken boundary: will win b/c operating as if it was yours and thought it was
 Good-faith standard, or passive:
o Required: “I thought I owned it!”
 Fulkerson v. Van Buren- (claim of right–actually not)
 “as far as adverse, adverse only came into works when there was no other avenue” = no intent to gain adverse
possession and therefore, no hostile intent
 Rule: adverse holding must be evidenced in (statutory period of years) of clear, distinct, and
unequivocal intent to hold against the true owner. You do not possess land adversely if you still
recognize the true title owner.
 Hollander v. World Mission Church of Washington, D.C.- (color of title)
 Rule: One who possesses the adjoining land of another under a mistake as to his own boundaries, with
no intention to claim land not belonging to him, but only intending to claim to the true line, does not
adversely hold the land in question. (b/c only claiming mistaken boundary (not land), no AP of land)
 Hollander maintained that land for 15+ years believing that it was the common boundary between their
property and the church’s. Evidence indicated they intended to claim title to the land extending to that line as
their conveyed property.
 Claimants based their claim not only on the deed descriptions, but also on their belief that their property line
ran to the line of woods.
III. The Mechanics of Adverse Possession:
a. Tacking
 To est. continuous possession for the statutory period, an adverse possessor can tack her own AP time onto any
period of AP by predecessors in interest IF there is privity of estate. (color of title)
 Privity of estate –voluntary transfer of either an estate in land or physical possession to a subsequent
possessor; if there is no privity, then there is no tacking
 No privity in ouster b/c there is no voluntary transfer; therefore, no tacking.
 Tacking is not permitted when one AP abandons even if another enters immediately ( continuous)
 Howard v. Kunto-
  Because they are using the land as a true owner would (during the summer) the true owners would be on
notice they were using their property (no opportunity to claim “not on notice”)
 Determining privity is difficult and expensive, and each owner cannot be expected to survey. Privity
purpose is to connect the successive owner and the new owner, to protect against trespassers.
b. Disabilities
 Unfair for a SOL to run upon a person who is unable to bring a lawsuit due to a legal disability. Therefore, most
statutes give additional time to bring an action if owner is under a disability. (purpose: because w/ a disability
there is the issue of the true owner never receiving notice) – must be present when the adverse possession
begins HOWEVER,
i. Only disabilities listed in the statute counts
ii. Only disabilities of the owner at the time adverse possession begins count
iii. Disabilities DO NOT tack
c. Take what you find rule:
 An adverse possessor can only take whatever rights the owner against whom he possesses has.
o EX: if A AP by farming against O, who owns fee simple, A earns mineral rights and surface rights.
o But if O owns only surface and X owns minerals, A will earn only the surface by farming adversely

d. Relation back rule: The title earned by AP relates back to the time that the adverse possession began.
 Runs against the party owning at that time
e. Payment of property taxes:
 AP req. to pay taxes on property in order to prevail, b/c this serves as notice to the true owner.
IV. Adverse Possession of Chattels:
 O’Keeffee v. Snyder-
 Differentiate other AP cases: painting is tangible, therefore AP is hard; open and notorious = issue
 Discovery Rule applied: burden on property owner is that you need to actively pursue finding the property
& who is adversely possessing it (focuses on due diligence); C-O-A will not accrue until the injured
party discovers, or reasonably should have, facts which form the basis of a C-O-A.
 If she died while actively looking & her children continue: you can tack- postpone SOL
o SOL tolled by a good faith owner looking for property and starts when she knows where it’s located
 What if he’s a bona fide purchaser (no notice of stolen & rightfully owned)? Credit given
o BFP Rule: A bona fide purchaser will maintain a good legal title, as long as they purchased
the property for value without notice of another interest already held by a third party.
C. Acquisition by Gift
 Voluntary transfer of property without consideration being given by you.
 Once you extend the gift, it cannot be rescinded (exception: gift causa mortis)
 There are 3 requirements:
1) Intent: donor must intend to make an immediate and present transfer of an existing property interest
 The donor must intend to be legally bound now, not in the future.
 Prove by extrinsic evidence (words, actions, physically handing something over(delivery))
2) Delivery: to make a gift of personal property, the donor must transfer possession to the donee with the manifested
intention to make a gift to the donee
 Rule: If you can manually deliver something, it must be done.
 Does not actually have to be a physical transfer, only a change of possession (if someone forgets
something, you find it, and then they say keep it…still a gift)
 Some accept symbolic (some other article delivered in place of the thing intended to be given; dirt on land)
 Others accept only constructive (physically transfers the means of access to take control of the gifted
object–a key to a locked house) – case by case basis
3) Acceptance: courts presume acceptance upon delivery (esp. if of value), unless donee expressly refuses a gift
 Gift intervivos: living gift to a living person;
 donor’s life is not under any threat
 immediately passes
 Gift causa mortis: giving a gift on death bed
 higher standard to protect the true owner of the gift
 CL: if the person recovers, the gift is automatically revoked and if the true owner still wants to give the gift,
then can give a gift intervivos (many jurisdictions still rule in this way)
 ML: time to revoke (to ensure intent remains), and if that time expires you lose the right to revoke
 Passes after death
 Suicide: death bed gift now (CL: not acceptable)
 Newman v. Bost-
 what was given was clearly intending to deliver the valuable items typically contained in such things
Constructive delivery of the furniture which the key unlocks, but not of what is in there
If you want to constructively deliver, physically hand over the things to show clear intent
If both people maintain possession of the symbolic thing, possession has not transferred. Here, she was
the only one with possession of the keys…but the things inside the bureau would not typically be kept there b/c
so valuable
 Gruen v. Gruen-
 P’s father wrote a letter to P stating that he wished to transfer the painting to him, but wished to keep it
throughout his lifetime. (maintained a life estate)-valid intervivos gift
 If the donor's intention is to make a testamentary disposition effective only after death, the gift is invalid unless
made by a will.
 Engagement rings (Exception):
 Not meant as present irrevocable gifts; you only get to keep them upon acceptance & marriage
 Once you get married, the condition is dissolved.
II. The System of Estates (Excluding Leaseholds)
Present Possessory Estates: (a leasehold is not a present possessory estate)
 Owner holds an estate in land that allows current possession. It may or may not be cut short by one or more future
possessory estates.
 Freehold estates: the lord puts you in possession of the estate (fee simple, fee tail, and life estate)

A. A fee simple (“absolute”)-

 no future interest to accompany FSA until the transferee dies (“to A & his heirs” his heirs have nothing. So long as
he is still alive, the heirs have nothing (b/c a living person has no heirs))
 Receive everything, regardless of no issue
 The largest possible estate because its potential duration is infinite
 when you convey a fee simple absolute, you have nothing left to yourself (not divestible nor will it end upon the
occurrence of any future event)
 The key characteristics of the fee simple are here heritability and alienability
 Devisable- capable of being transferred by will
 Descendible- able to pass to holder’s heirs if they die intestate.
 Heritability- (“to A and his heirs”)
o spouse, issue, ancestors (parents), collateral (siblings; then nephews/nieces), escheat (to the state
if without legal heirs)
 Alienability- You have the right to sell this, or transfer it, or do as you please because this is an
“absolute” transfer
o There are 3 types of restraints on alienation:
1. A disabling restraint- withholds from the grantee the power of transferring his interest
2. A forfeiture restraint- provides that if the grantee attempts to transfer his interest, it is
forfeited to another person
3. A promissory restraint- provides that the grantee promises not to transfer his interest
o A restraint on alienability linked to a reasonable time limited purpose is valid
- EX: “o to a, so long as she does not attempt to sale for the next 18 mo. As clouds on the title
are resolved”  fee simple determinable; O has possibility of reverter
o Absolute restraints on alienation are unenforceable
- EX: “o a so long as she never attempts to sale”  not FSD; condition is void
 Remaining: A has a fee simple absolute; O has nothing
 There is a fee simple only in land not in personal property
 Words of Purchase– identify the grantee:
 CL: “O to A and his heirs.”
 ML: “O to A” – presumption of fee simple
 Words of Limitation (Describe the type of estate): none
 It is absolute ownership.
 This is absolute, limitless, unfettered ownership!
 This usually leads to a trick question: O conveyed blackacre “to A and his heirs.” What do A's heirs have?
o NOTHING; A living person has NO HEIRS
o Until A dies, they are just perspective heirs; there are no future interests here
B. Defeasible Estates:
 It will terminate, prior to its natural end point, upon the occurrence of some specified future event
  All types are freely alienable (transferrable), devisable (leave to another by will), and will pass if intestate – all
subject to the stated condition when ^done!
 All defeasible fees have the potential of infinite duration, but not the certainty
 Future Interest accompanying (all): possibility of reverter
 Ccourts will avoid finding a defeasible estate unless the grantor used clear durational language. If the grantor used
words of motivation, aspiration, hope, intent, or desire…this is not legally binding & grantee has a FSA.
 Types of fee simple “with a catch”
a. Fee simple determinable- (“Frank Sinatra Didn’t Prefer Orville Redenbacher”)
 Purpose: to control the use of the land after it has been transferred
 A fee simple estate so limited that it will automatically end when the stated condition is violated &
then the grantor has the right to revert
 If that specified event occurs, you must claim the property back before the SOL ends, or else you can
no longer revert it
 Freely devisable (left by will) and descendible (passes intestate), but always subject to the stated
condition; “it tags along even when transferred/devised/passed”
 always violates the RAP; automatically vests
 Blackacre can be inherited forever like a fee simple absolute
 Future Interest accompanying (reserved for grantor): possibility of reverter
- EX: “O converys to A so long as popcorn is never made on the premises”
o A: fee simple determinable
o O: possibility of reverter
 Key language:
o “for so long as”
o “until”
o “unless”
o FSD is subject to a limitation (when met, fee simple is terminated & COA begins), not a condition
b. Fee simple subject to condition subsequent- (if you see a comma, know it’s this)
 Requirements:
1) Clear durational language
2) A clear statement of the right of re-entry (doesn’t actually have to state re-entry; may indicate)
 EX: “to Rachel, but if coffee is ever consumed on the premises grantor (Ross) reserves the
right to re-enter and re-take” (or “until such time as liquor is served”/ “but if…estate
terminates”)
o Rachel: fee simple subject to condition subsequent
o Ross: right of entry
 Does not automatically terminate in the event of the stated condition’s breach but may be cut short or
“divested,” at the transferor’s election when a stated condition happens.
 Forfeiture occurs only when grantor re-enters (terminate the fee simple) & reclaims
 Unless and until entry is made by the grantor, the fee simple continues
 SOL does not begin tolling until someone initially re-enters;
 The future interest (reserved for grantor): right of reentry (also, power of termination)
o This right is not transferable, so it goes to the heir when the grantor dies
c. Fee simple determinable followed by an executory interest-
 Will automatically end when the stated condition is violated; automatic forfeiture in favor of a future
interest created for a 3rd party (new grantee)
 “O to A, but if (X event) occurs, then to B.”
 “O to A, but if within the 20 years Blackacre is not used as a school, then to B”
A: fee simple subject to an executory interest
B: future interest– shifting executory interest
O: No interest reserved (no future interest for grantor)
 The future interest (created in grantee): shifting executory interest
 When an executory interest follows a fee simple determinable, we call the fee simple a fee simple
determinable (not a fee simple subject to an executory limitation) followed by an executory interest in
fee simple
C. A life estate
 Measured in explicit lifetime terms, and never in terms of years; will end at the death of the person.
 Words of Purchase– identify the grantee:
  CL: “O to A”
 ML: “O to A for life”
 Judicial recognition of a life estate had two important consequences:
1) It meant that the grantor of a life estate could control who takes the property at the life tenant’s death
o The life estate ultimately supplanted the fee tail as a device to control inheritance
2) As land and stocks and bonds came to be viewed as income-producing capital, trust management for the
life tenant developed
 Today most life estates are created in trust or will
 A (life estate holder) can transfer to B (“To B for the life of A) and B then has a life estate pur autre vie – an
estate that is measured by A’s life-span, not B’s.
 When A’s lifetime ends, grantor is given the property back (reversion)
 If “to A for life, then to B” B has a remainder
 Once the person receiving the life estate dies, the property reverts back to the one who gave the property in a life
estate in the first place.
 Future interest accompanying life estate: (not divestible)
1) If held by original grantor: a reversion (“to A for life”), or
2) If held by a 3rd party(transferee): a remainder (“to A for life, then to B”)
 The Waste Doctrine: (two general rules)
1. The life tenant is entitled to all reasonable uses and profits from the land;
2. The life tenant must NOT commit waste
 She must not do anything to injure the future interest holders.
 There are three species of waste:
1. Voluntary or Affirmative Waste
o Willful destruction
o The life tenant will be liable if her actions willfully destroy blackacre
o EX: JB is a life tenant, he is on a golf-cart and does wheelies on the front lawn and throws eggs at
the the windows, breaking them.
2. Permissive Waste
o Neglectfulness; A pattern of disregard or remiss
o EX: leak in ceiling left unpatched by a tenant creating permanent damage (life tenant’s duty: to
patch before it got to a point of permanent damage)
3. Ameliorative Waste
o The life tenant must not engage in unilateral transformation/acts that enhance the property value
unless all future interest owners are known and consent
o Protects the future interest holder’s reasonable expectations to maintain sentimental value
- Problem (Life estate v. Remainderman): competing goals of the two parties with regards to resources that
are produced from Blackacre—timber, oil, gas, minerals, etc.
o Solution: Doctrine of Waste—balances the interests of the life tenant with the remaindermen.
Prohibits life tenants from damaging or devaluing the land, as their ownership is technically only
temporary. Courts may balance the competing interests.
D. Term of Years
 Returns to grantor (possibility of reverter) or goes to a third party (shifting executory interest)
 Ends when stated, not before or after; not determinative on any other source
 Ends as a matter of law—no action necessary by the grantor or grantee
 Words of Purchase – identify the grantee:
 “O to A for five years”
 You can convey a life estate for term of years, or retain one
 Convey: it comes back to you or your heirs after death of grantee
 Retain: you retain possessory interest in Blackacre until your death, and can further convey that possessory interest
to another, but Blackacre goes to remaindermen upon your death.
Future Interests:
A. Modern Relevance of Future Interests (always attached to some type of estate conveyed)
 Future Interest- a present interest in property in which the privilege of possession, or of enjoyment, exists in the
future (not presently), but which is protected as a property right in the present.
 Exists b/c the whole FS has not been conveyed, inherited or devised; follows a limited estate
 ALWAYS determined at time of creation, not based on what may happen
 Most future interests conveyed in trusts
 Two basic groups
 i. Interest initially retained by the grantor/transferor (not subject to RAP b/c treated as vested as soon
as they arise)
o Reversion- the future interest following a limited estate that is held by grantor
o Possibility of reverter- the future interest following a fee simple determinable
- there is no such thing as a “possibility of reversion”
o Right of entry (also “power of termination”)
ii. Interests created in a transferee (conveyed to additional grantees)
o Vested remainder
o Contingent remainder
o Executory interest
 NOTE: a future interest is a presently existing property interest
 A future interest gives legal rights to its owner and is protectable by the courts.
B. Future Interests Retained by the Grantor (goes back to the original owner) (not subject to RAP)
a. Reversion in Fee Simple (may never become possessory)
 The interest left in an owner when he carves out of his estate a lesser estate (other than a defeasible
estate) and does not provide who is to take the property when lesser estate expires
 Ex: when conveying to someone a life estate, the property returns to the transferor when the transferee
dies (or to the transferor’s heirs if the transferor dies before the transferee dies)
o “O, holder of a fee simple absolute, conveys to A for life” or “O, holder of a fee simple absolute,
conveys to A for 50 years” …. O has “leftover” …right of reversion
b. Possibility of Reverter in Fee Simple
 A possibility of reverter is a future interest remaining in the transferor or is heirs when a fee simple
determinable is created (‘so long as…’)
c. Right of Reentry in Fee Simple
 A right of reentry is when an owner transfers an estate subject to condition subsequent (‘but if…then’)
and retains the power to cut sort or terminate the estate
 must take action to reenter and claim the land after the condition has taken place
C. Future Interest in Transferees (goes to 3rd party);
 X is an immediately identifiable living persons at the time of the conveyance AND there are no conditions to
meet for X to take possession of the estate conveyed except the expiration of the preceding estate
 Remainder is a future interest created in a grantee (3rd parties); are capable of taking affect in possession upon
natural expiration of the possessory estate preceding them (typically life estate or term of years)
 Either vested OR contingent remainders
 NEVER follow defeasible fees
 “To A for life, and then to B”; “To A for life, and then to B for 50 years”
 Executory Interests is a future interest created in a grantee that takes effect by divesting (cutting short) the interest
(defeasible fee simple) before them
 Types:
a. Vested Remainders
 Two requirements:
1) Given to an ascertained person (a certain/known person-not heirs); and
2) NOT subject to a condition precedent or the RAP (vested naturally)
o May be subject to a condition subsequent -subject to complete divestment
 In other words, created when in an ascertained person and is ready to become possessory whenever and
however all preceding estates expire
o Remainderman is alive, around, and just waiting for their turn.
 Indefeasible vested remainder- certain of becoming possessory in the future, cannot be divested (cut
short)
 A remainder may be vested but not certain to become possessory if it is subject to divestment
 Must fall into one of three sub-categories:
i. Indefeasibly Vested Remainder
o Remainderman is known, with no strings attached to his taking
o RAP Does not apply
o “to A for life, then to B” – both alive
 - A has a life estate
- B has a indefeasibly vested remainder
ii. Vested Remainder Subject to Complete Divestment
o Not subject to a condition precedent, but is subject to a condition subsequent
o Condition Subsequent–Appears after the language introducing remainderman
- “To A for life, then to B, but if B leaves school, then to C”
 A has a life estate
 B has a vested remainder subject to complete divestment
 C has a shifting executory interest
o RAP does not apply
iii. Vested subject to open (or vested subject to partial divestment) (subject to RAP)
o Remainder is vested in a group of takers; at least one of whom is qualified to take
o What follows is always a shifting executory interest
o EX: “To A for life, then to A’s children” – A has 2 children: C & D
- Vested because C & D exist
- As long as A is alive, this category of people is capable of expanding
 later-born children are entitled to share in the gift
- A: life estate; C & D: vested remainder subject to open; future children: shifting
executory interest
b. Contingent Remainders (‘contingent on becoming known/event occurring)
 Requirements:
1) Given to an unascertained person (EX: heir, when the heir is unborn); or
2) Subsequent to a condition precedent (prerequisite– EX: “if graduate HS”)
 The remainder is not now ready to become possessory upon the preceding estate’s expiration
o Remainderman is either not alive, or has not completed their requirement yet, so not ready
to take the interest. Therefore, even if it is their turn, O gets to hold onto it until they are.
 O retains a reversion right until, if at all, contingent interest = satisfied and then it divests
c. Executory Interest
 “B is Dr. Evil…just waiting for A to commit the ‘but if’ condition, so they B can ‘pounce’ automatically.”
 A “fee simple subject to an executory limitation”
o A fee simple that, upon the happening of a stated event, is automatically divested to an
executory interest in a transferee
o can be created in possession or remainder
 Either:
1. Springing: divests (cuts short) grantor in the future (i.e., preceding estate held by the grantor)
o “O conveys Blackacre to A when he marries” – A is presently unmarried
 O has a fee simple subject to A’s springing executory interest
 When A does marry, A will divest from O
2. Shifting: divest(cuts short) another grantee in the future (i.e preceding estate held not by grantor)
o “O conveys to A, but if A every uses the land for ___, then to B”
 A has a fee simple subject to B’s shifting executory interest
 Is it a vested or contingent remainder? Must Ask: At the time the original conveyance is made:
1) Is the remainder recipients unknown or unascertainable? If so CR
2) Other than the expiration of the preceding estate, are there any conditions imposed on the remainders to
obtain possession? If so CR
Rules Against Perpetuities:
A. The Common Law Rule
 Certain kinds of future interests must, to be valid, be certain to be capable of vesting within the perpetuities
period (within 21 years after the death of a relevant life in being)
 Allows the land to be tied up for restriction, but only for so long
 Brightline Rules:
1. An executory interest with no limit on the time within which it must vest violates RAP
“O conveys to A, so long as alcohol is never served, and if alcohol is ever served, then to B”
- A: fee simple subject to B’s shifting executory interest
 -
Violates RAP
 B has a shifting executory interest
 A: validating life b/c they control service of alcohol (choose to abide condition or not)
 At the time created, we do not know for sure w/in 21 yrs if condition will be broken
- Remaining: A has a fee simple determinable; O has a possibility of reverter
2. Gift to an open class conditioned on the members surviving to an age beyond 21 violates RAP
- If it doesn’t specify a year, doesn’t violate RAP
a. Mechanics of the Rule
 Step 1: Determine which future interests you have?
 RAP only applied to these:
a. contingent remainders- not vested at time of conveyance
b. executory interests- not vested at time of conveyance
c. vested remainders subject to open (class gifts)- Special case (all or nothing rule—a
gift that is vested subject to open is not vested under RAP)
 does not apply to future interests of the Grantor
 Step 2: \when does the perpetuity clock begin to run?
 You must prove that a contingent interest is certain to vest or terminate no later that 21
years after the death of some person alive at the creation of the interest
o When must the “life in being” be alive?
- If the contingent interest is created by will, the life in being must be a person alive
at the testator’s death.
- If the contingent interest is created by an irrevocable inter vivos transfer, the life
in being must be a person alive at the transfer.
 Step 3: What is/are the relevant future events(s)? There can be more that 1 event
 Step 4: The search for a validating life
 Validating life: a person (it only takes one) who will enable you to prove that the contingent
interest will vest or fail within the life, or at the end, of that person, or within 21 years after that
person’s death
 Look only at causally connected lives
o Just has to have been “in being” (the time starts when the child is born– no in gestation) at or
before the time at which the interest in question was created
o Look for an ascertainable person alive at the time of the grant connected to the vesting or
termination of the interest
 Test each such life with the “what-might-happen” question
o Is there some possible (not necessarily probable) chain of post-creation events such that the
contingency might still remain unresolved after that person’s death plus 21 years have passed?
- If one-person answers “no” that person is the validating life
- If what might happen is that the interest remains unvested following that
person’s life plus 21 years, then that person cannot be the validating life.
o CL: it must be assumed that a person of any age can have a child (old/ young)
b. Class Gifts
 Not vested in any member of the class until the interests of all members have vested
 A gift that is vested subject to open is NOT vested under the Rule Against Perpetuities
 For a class gift to be vested under the Rule Against Perpetuities:
 The class must be closed (every member of the class must be in existence and identified), and all
conditions precedent for each and every member of the class must be satisfied, within the
perpetuities period.
 “O conveys to A for life, then to such of A’s children as live to the age of 30” –A is alive and has two
children C (35y/o) & D (40y/o)
 Violates RAP b/c the class is vested subject to open, therefore the existing children being 30+ is
irrelevant b/c A could have another child who may possibly not reach 30 (”21”)
 Remaining: A has a life estate, O has a reversion
B. RAP Common law has been reformed
  A few states have enacted statutes that correct technical Perpetuity violations, usually that result from a
highly unrealistic assumption (Ex: lifetime fertility)
 Wait-and-See
 The validity of any suspect future interest is determined on the basis of the facts as they occurred
after the death of the validating life (at the death of the validating life take a second look and
look at what actually happened)
 We wait and see whether the interest does in fact remain contingent too long
 Key: look at what actually happens rather than what might happen
 The Uniform Statutory Rule Against Perpetuities
 Adopts a fixed waiting period; If after 90 YEAR period the interest has still not vested, the
court is authorized to reform offending language of the instrument to allow interest to vest
 The suspect future interest has to be certain to vest or not vest within 90 YRS of its creation
Co-Ownership and Marital Interests:
A. Common Law Concurrent Interests
1. There Are Three Types of Concurrent Interests
a) Tenancy in common (“to A and B”)
 Separate but undivided interests; Interest of each is descendible and may be conveyed by deed/will
 No survivorship rights
 Only “unities” that they have is possession
 Need to know why they don’t have the other 3 b/c they are separate interests ( interests) that can
be acquired by joint tenancy separating (time and title)
b) Joint tenancy
 Have the right of survivorship (fee simple)
 When one tenant dies, the surviving tenant gets the whole thing
 CL: joint tenants together are regarded as a single owner
 each tenant is seised per my et per tout (by share (equal parts) and by whole); aka: owns the
undivided whole of the property
o when one joint tenant dies, nothing passes to the surviving joint tenant
o rather, the estate simply continues in survivors freed from participation of the decedent,
whose interest is extinguished (so, does go to the survivor—they get the “whole”
property now that they already technically had b/c “whole” in joint tenancy)
 Four unities which are required to a joint tenancy:
i. time: the interest of each joint tenant must be acquired/vest at the same time
ii. title: all joint tenants must acquire title by the same instrument or by a joint AP
- A joint tenancy can never arise by interstate succession or other act of law.
iii. Interest: All must have equal undivided shares and identical interests measured by duration
iv. Possession
- Each must have a right to possession of the whole.
- After created one joint tenant can voluntarily give exclusive possession to the other
 CL: if all four do not exist, there is no joint tenancy—tenancy in common, instead.
o Some jurisdictions do not require all four.
 Changes from joint tenancy to tenancy in common when one entity ceases to exist.
 A joint tenant cannot pass interest by will. The interest of the tenant dies with him (cannot be passed)
 A joint tenancy ends when a tenant conveys his interest inter vivos to another. (becomes a
tenancy in common)
 Cannot create a joint tenancy with a life estate
 There can be more than two joint tenants
 Can destroy/sever, without telling co-tenant or obtaining their consent, by conveyance to a 3rd party
 If she puts it in her will then it will have no effect, b/c as soon as she dies it wholly passes to other
joint tenant (“cannot be devised”)
c) Tenancy by the entirety (today, in few than half the states)
 Only husband and wife; Some: exceptions for unmarried living together & prohibited from marriage
 Also requires the four unities (plus a 5th: the unity of marriage)
 Has the right of survivorship (fee simple)
 CL: husband and wife are considered to hold as one person (no individual interests)
  Can only be conveyed or have a right to judicial partition when husband and wife act together
 Terminated by divorce…then, becomes tenancy in common
2. Severance of Joint Tenancies:
 Harms v. Sprague-
o In the 5 states that believe that a mortgage is a transfer of title
o The majority of courts hold that an execution lien does not cause a severance
o A surviving joint tenant succeeds to the share of the deceased joint tenant by virtue of the
conveyance which created the joint tenancy, not the successor of the deceased.
o The property right of the mortgaging joint tenant is extinguished at the moment of his death.
- While John was alive, the mortgage existed as a lien on his interest in the joint tenancy.
- Upon his death, his interest ceased to exist and along with it the lien of the mortgage.
3. Multiple-Party Bank Accounts:
 Generally, take one of three forms: 1) joint accounts (“A and B”; “A or B”)-most common; 2) savings
account (“A, in trust for B”); or 3) payable-on-death (“A, payable on death to B”).
 An account expressly giving A survivorship rights only is a will
 P.O.D = payable on death; trumps will.
 If more than a husband and wife on account, then, it is a convenience account (owned by O; A has
power to withdraw during O’s life)
4. Relations Among Concurrent Owners:
a. Partition
 If co-tenants can agree to and how to end a joint tenancy, then they can and there is no problem.
o If cannot agree, action is available to any joint tenant/ tenant in common (not tenants in entirety)
 Today prefer partition in sales over partition in kind
o Partition in Sales: sell the land and split the profits among the joint tenants
- Order if 1) in kind is impracticable or inequitable; 2) interest of the owners better promoted
- Burden is on the party requesting a partition by sale to demonstrate that such a sale would
better promote the owners’ interests.
- last resort and was newly added out of absolute necessity (cannot agree, etc.)
o Partition in Kind: split the land
- When the land is split and one gets a more valuable portion of land than the other, the
smaller party gets an owelty of partition in-kind
- Owelty of Partition in-kind- where the property is divided and one party gets a greater
portion of the division, and whoever gets the smaller part secures a debt against the larger
portion and gets an Owelty which becomes secured by a lien on the property
o If one gets property with a house and the other gets nothing, the one with nothing
gets a lien on the property.
b. Sharing the Benefits and Burdens of Co-Ownership
 Concurrent owners might enter into an agreement by contract concerning rights and duties (use,
maintenance, and improvement of the property.
o But when there is a problem that was not covered in the contract, there is a need for property rules
to determine how the benefits and burdens of ownership are to be shared by the co-owners
 Joint Tenants written agreement to never partition the property is seen as an invalid restraint on
alienation of property. Today, they will be enforced if they are reasonable in purpose or duration.
 Suit for accounting v. suit for contribution:
A. Suit for Accounting: the one joint tenant or tenant in common has leased the place out
- A suit by the guy who didn’t get the money (i.e. for rent, etc.)
B. Suit for Contribution: pay the property tax bill in full and then request the other pay his back. If
he refuses you sue for contribution.
- Brought by the person who made the payment
 Spiller v. Mackereth-
o Tenants in common are seized per my et per tout. Each has an equal right to occupy; and unless
there is an ouster (one denies the other the right to enter by AP), and the denier agrees to pay rent,
nothing can be claim for such occupation.
- There is no AP b/c he is acknowledging the other’s tenancy because he filed for partition.
- Before an occupying cotenant can be liable for rent, must deny co-tenants the right to enter.
  To claim ouster, must take affirmative action (attempt to enter), and then must be barred, beat up,
etc. and then you can sue for damages b/c you have denied of your equal right to access as a co-tenant
o Ouster: is a conclusory word used loosely in co-tenancy cases to describe two distinct situations:
- The two fact situations:
1) The beginning of the running of the statute of limitations for adverse possession
2) The liability of an occupying cotenant for rent to other cotenants
- The two fact situations require different elements of proof to support a conclusion of ouster
B. Marital Interests
1. The Common Law System
 Rights of each spouse are either: 1) rights during the marriage; 2) rights upon divorce; or 3) rights at death
a. During Marriage
 CL: no rights to the woman, except for clothes and ornaments, all personal owned by a wife at the time
of the marriage or acquired thereafter, including her earnings, became property of the husband.
 1800s: Married Women’s Property Act gave married women, like single, control over all her property
 Sawada v. Endo-
o The husband and a wife have one indivisible interest, and it cannot be conveyed or reached by
execution as a separate interest (i.e., if reached by execution, not just the party being sued, but both)
- Indivisibility of the estate, except by joint spousal action, is an indispensable feature.
o Once his wife died he had a fee simple (which can be attached by creditors), so in order to prevent
creditors from going after the property, they conveyed it to the children as joint tenants.
o This was not a fraudulent conveyance (transferring property for less than its value) because public
policy is in favor of that finding (family land = sacred and valuable)
 The IRS can reach the interests of a debtor spouse in tenancy-by-entirety property.
b. Termination of Marriage by Divorce
 CL: upon divorce property of the spouses remained the property of the spouse holding title.
 No statutory alimony/“maintenance” (continued financial support to the wife after divorce) in Texas.
 Modern legislation has replaced the common law division of property with “equitable distribution”
o Property is divided by the court (moving toward equal distribution) on equitable principles
 In Re Marriage of Graham-
o Education degree  property (no exchange value. Personal to holder.);cannot be divided as asset
o Court may take a degree into account when deciding what the appropriate alimony is.
 Good will (if divorce is filed due to bad will-cheating) can be considered w/ separation of assets
c. Termination of Marriage by Death
 At common law:
o Right of dower (limited right: for the wife only after husband’s death)
- A life estate in one-third of each parcel of land of which the husband was seised
(possessed) during marriage; remainder was inheritable by issue (kid) of husband and wife
- Attaches to land at the moment of marriage, if land is then owned, or when land is acquired
- Only valid if there were surviving children
o Right of curtsey (for the husband after the wife’s death)
- A right to a life estate in each part of wife’s real property if certain conditions were fulfilled
- Attached to all freehold (land wife was seised during marriage and was inheritable by issue)
o Husband always got more of the wife’s property than wives got of the husband’s (idea: men are
better to own land)
 Modern:
o Nearly all jurisdictions have replaced these interests with the statutory elective share
- Surviving spouse can renounce will and elect to take a statutory share (usually ½ or 1/3)
- (contrast) Uniform Probate Code: surviving spouse can to keep any property will devised
- If state retain dower: surviving spouse right to elect or statutory forced share-usually larger
2. The Community Property System
 Fundamental idea: earnings of each spouse during marriage should be owned equally in undivided shares
 Community property is acquired/possessed during marriage (earnings), rents, profits, and fruits of earnings.
 In most states, spouses can convert community property into separate property, or vice versa
 Separate property is that acquired before marriage and acquired during marriage by gift, devise, or descent
3. Rights of Domestic Partners
 Common law marriage (recognized in Texas)
  Cohabiting parties must manifest their intent to be husband/wife & hold themselves out to public as such
 When recognized, the couple has the same rights as a couple married with license and ceremony.
4. Same Sex Marriage
 Obergefell v. Hodges-
 The Ohio laws violated the Equal Protection Clause because under state law these people are being
deprived of certain rights that they would have under other state laws.
 States must recognize the validity of marriages performed out of state.
 “domestic partnership”: how states tried to get around same-sex marriages
III. Leaseholds: The Law of Landlord and Tenant
Tradition, Tension and Change in Landlord-Tenant Law
A. Leasehold Estates (there are only four types of leasehold estates)
 Non-Freehold estates- lack seisen (possession)
 When any of the leaseholds are created, a future interest is created in a landlord or a third party for.
 Landlord: reversion
 Third Party(T1 in assignment/sublease): may have remainder and take possession immediately upon
termination
 When interpreting language of voluntary transfers, courts normally try to carry out the intentions of the parties
1. The Term of Years
 For a fixed determinable period (“To A for 100 days”);
 Terminates automatically at end– No notice required.
o Can be terminated earlier by an event or by agreement of both parties
o A unilateral power to terminate a lease can be engrafted (inserted)
 At CL: no limit on the years permitted
 What happens when lease for term of years terminates? Reversion or remainder
 Death has no impact; if landlord or tenant drops dead, the term of years continues
2. The Periodic Tenancy
 Fixed duration; repeats for like succeeding periods unless termination notice (can be unilateral)
 Created by express agreement (lease) that only states rent and termination upon notice by one party
o Also created by implication: one possesses property w/ owner’s consent & pays regular rent
 Notice of termination required; generally equal to the tenancy period.
o CL: Year-to-year required half-a-year notice
o CL (any period under a year): requires notice of at least half a period (not > 6 mo.)
o No notice? Automatic extension for succession of periods until one terminates w/ notice
o The notice must terminate the tenancy on final day of the period, not in the middle of tenancy
 Death has no impact; if landlord or tenant drops dead, the periodic tenancy continues
 Ex: “To A from month to month”
3. Tenancy at Will (uncommon today)
 Last as long as both parties desire; no fixed period
 ML: notice generally required to terminate
 Created by expressly agreeing either can terminate at any time (implies other can terminative at will)
o Also created by implication: one enters land with the owner’s consent but with no agreement
concerning the length of the tenancy or payment of rent
 Ends when:
o one of the parties terminates it
o one of the parties dies
4. The Tenancy at Sufferance: Holdovers
 A tenant who remains in possession (holds over) wrongfully after termination of tenancy.
 Key characteristic is lack of landlord’s consent
 Common law gives the landlord two options:
o Eviction (plus damages) by forcible detainer suit (doesn’t require notice b/c possession=illegal)
o Consent (express/implied) creates new tenancy (Texas: tenant at will; periodic tenancy-maybe)
- Usually subject to the same terms and conditions as those in the original lease, unless the
parties agree otherwise/ some term or condition is regarded as inconsistent w/ new situation
- Notice requirements will be in accordance with the new type of leasehold created
B. Selection of Tenants (Herein of Unlawful Discrimination)
 Fair Housing Act, 42 U.S.C.A. Sections 3601-3619, 3631.
  Cannot discriminate based on race, color, religion, sex, familial status, handicap or national origin.
 Discriminatory intent not requiredproof of discriminatory impact or disparate treatment is sufficient
—cannot be solely on statistical disparities but must be that D’s policies caused that disparity
 Civil Rights Act of 1866: Prohibited all racial discrimination, private and public, in the sale/rental of property
 Deals only with racial discrimination to inherit, purchase, lease, sell, hold, and convey real and
personal property; does not cover provision of services; does not prohibit discriminatory advertising
 requires proof of intentional or purposeful discrimination
 Texas Fair Housing Act Texas Property Code 301:
 A person may not refuse to sell/rent, refuse to negotiate (BFP), or in any way make unavailable/deny a
dwelling to another because of race, color, religion, sex, familial status, or national origin or disability.
 A person may not discriminate against another in terms, conditions, or privileges of sale or in services
 Exceptions:
o if the L owns no more than 3 houses, doesn’t use a professional, and doesn’t advertise that
protected group(s) should not apply); or
o if the owner maintains and occupies one of the living quarters as the owner's residence.
C. Subleases and Assignments
 Privity is a voluntary transactional relationship between two or more parties recognized by the law; whoever
puts you in possession of the property est. privity (required)
 The two types of privity—estate and contract—reflect the dual nature of a lease as both a
conveyance and a contract.
o Privity of contract – the relationship between the promisor and promisee.
o Privity of estate – relationship between parties arising from conveyance of right of
possession—LL-T1 or T1-T2
 Privity is often required to give a party standing to enforce rights
o LL can sue an assignee (i.e. T2) for rent as there is privity of estate between the two
o LL can sue for breach of a contractual provision in the lease if there is privity of contract
original lessee or one who assumes (not just an assignee) obligations under the lease.
- Even if assumption of lease by T2, unless T1 is released by LL, T1 is still liable
 Assignment/Sublease Distinction at CL:
 Focus on who put you in possession— the landlord (assignment) or the tenant (sublease)
 Assignment: A transfer of all of the assignor’s remaining interest for the entire term.
o LL puts T in privity of estate b/c he puts him in possession of the estate
o Lessor can sue lessee (privity of contract) and (privity of estate)
o Conveys whole remaining term; no interest nor reversionary interest in the grantor
 Sublease: A transfer of less than all of assignor’s interest for the entire term (tenant lease to another)
o Lessor can sue lessee (both privity of contract and estate); Lessee can in turn sue sublesee
(privity of estate)
o Lessor can’t sue sublessee (if didn’t assume obligation) for rent (no privity estate or contract)
o LL  T (privity of contract & estate); T T1 (no privity of estate w/ LL & T1; T put T1 in
possession: privity est.), so w/out obligation can avoid paying rent until forcefully evicted
o Not giving everything away, reserves a right of remainder interest
- Subleasee cannot assign his sublease to another subleasee
- Once you have one subleasee, everyone after is a subleasee
 T’s Right to Assign or Sublease
 Generally, if the lease does not restrict T’s right to transfer, T may transfer freely.
o Sec. 91.005, TX Prop. Code. Subletting Prohibited. During the term of a lease, the tenant
may not rent the leasehold to any other person without the prior consent of the landlord.
 If T1 transfers to T2, does not mean that he assumed anything under the lease; only assignee
o LL can sue T2 b/c there is privity of estate (from LL  T1  T2) (privity of estate)
- If T2 assumes the obligations under the lease then (privity of contract) & liable
o If T2  T3, T2 cannot be held liable for the rent unless they assume the obligations
o T1 is always liable (privity of contract) unless LL gives you a release/novation
 CL: a lease that required L to consent to a transfer permitted L to withhold consent for any reason.
 Modern trend is to require that L not withhold consent unreasonably.
D. The Tenant Who Defaults
 Default- Stopped paying rent or breached other lease covenants (as in Berg)
 Most leases include an express provision allowing LL to terminate based on any covenant breach
 o w/out provision: LL can only terminate for failure to pay rent not breach of other covenants
 Notice of default and time to cure – for nonpayment of rent, LL must notify tenant and demand rent and
then give a T reasonable time to pay
 Upon nonpayment LL can notify T she has elected to terminate lease THEN L can exercise her rights
1. The Tenant in Possession
 Berg v. Wiley-
 Common law rule: two conditions for self-help repossession
i. Legally entitled to possession
ii. Peaceful (or at least only used reasonably necessary force)
o There is no cause to approve of potentially disruptive self-help where adequate and speedy
means are used for removing tenant peacefully by judicial process
 Texas Prop. Code 92.0081 Residential: (TX Self Help Provision)
 (b) A landlord may not intentionally prevent a tenant from entering the leased premises except by
judicial process unless the exclusion results from:
1) bona fide repairs, construction, or an emergency;
2) removing the contents of premises abandoned by a tenant; or
3) changing the door locks on the door to the tenant's individual unit of a tenant who is
delinquent in paying at least part of the rent.
 Same provision for commercial leases(§93.002h) except lease language controls over this section
 Judicial Remedies v. Self-help:
 CL – allowed LL to seize T’s property and use reasonable force to remove and also authorized
judicial suit by way of ejection (expensive and time consuming)
 Most states have abolished self-help (some allow but require peaceably) and require judicial actions
 Texas law does not ordinarily allow a landlord to take possession of property through “self help”
 Judicial Remedies in Texas:
1. Texas-Forcible and Detainer actions in JP court Chapter 24 Property Code—quick and efficient
 A person commits a forcible entry and detainer if the person enters the real property of another
without legal authority or by force and refuses to surrender possession on demand.
a) A person who refuses to surrender possession of real property on demand commits a forcible
detainer if the person: is a tenant or a subtenant willfully and without force holding over;
2. Texas also has another remedy in the case of residential property—a landlord’s lien which attaches to
some non-exempt property of a tenant lease provides. The LL has the right to seize property and sell
it. There are certain Due Process protections for tenant—he can replevy the property.
2. The Abandoning Tenant
 Sommer v. Kridel-
 A landlord has a duty to mitigate damages if he seeks to recover rents due from a defaulting tenant
o mitigate = attempt to re-let; must take action (treat the abandoned property as if were vacant)
 LL required to carry the burden of proving he used reasonable diligence in attempting to re-let
o EX: personally or by agency, offered/showed to prospective tenants, advertised (case by case)
 Traditionally, the LL had three options where the tenant abandoned:
1) Terminate the lease.
- LL treat abandonment as an implied offer to surrender & accept the offer: terminating lease
2) Leave premise vacant; recover accrued rent.
- Rejecting the implied offer to surrender and keeping the lease in effect; LL could leave the
premises vacant and later bring an action for accrued unpaid rent. (now duty to mitigate)
3) Mitigate damages; recover any difference in rent.
- Rejecting the implied offer to surrender and keeping lease in effect, the LL could mitigate
tenant’s damages by reletting and bringing an action to recover any difference in the rent.
 Duty to Mitigate damages where the tenant has abandoned possession:
 Under CL – no duty to mitigate
 Modern: LL now has duty to mitigate by use of “reasonable diligence” in attempting to re-let
o Burden of proof that LL failed to mitigate is on the tenant
o May not refuse a suitable tenant
o Sec. 91.006, TX Property Code—Residential and Commerical leases:
a) A provision of a lease that purports to waive a right or to exempt a landlord from a
liability or duty under this section is void.
 T is required to bear cost of any “reasonable expenses” incurred by LL in attempting to re-let.
 Factors:
 o Did tenant give notice? Did he offer replacement tenants?
o Did LL offer to show the surrendered property to others?
o Did he advertise and such?
3. Security Deposits:
 Typically, cannot validly be a liquidated damages clause b/c TX has strict rules concerning
E. The Landlord’s Duties
1. The Duty to Deliver Possession
 American Rule: LL is obligated to deliver only the legal right to possession when lease term begins
 Upshot: the tenant’s responsibility, rather than the landlord’s, to oust a trespasser or holdover (b/c no
duty to deliver actual possession)
 No obstacle to possession in the form of a superior right of possession
 English Rule(TX follows): LL must deliver both legal, and actual possession at beginning of lease
 If the tenant does not show up to accept possession the first day of the lease, LL can terminate.
 Upshot: the LL’s responsibility to oust a trespasser or holdover (b/c he must actually deliver
possession on day 1 of lease)
 Upon the landlord’s default, the tenant may terminate the lease and sue for damages
 American v. English Rule:
 Simply determines WHO has the responsibility/authority to bring action against the holdover tenant
 Claims are the same in both situations
o Sue for ejectment (common law)
o Damages
o Forcible Entry and Detainer suits
2. Quiet Enjoyment and Constructive Eviction
 Village Common, LLC v. Marion County Prosecutor’s Office-
 If LL commits acts/omissions sufficient to evict the tenant, tenant is no longer obligated to pay rent
 Exclusive remedy provision: In the event of a breach by landlord tenant could sue for damages and
injunctive relief but shall not be entitled to terminate lease or withhold/abate rent
o Upon eviction (actual or constructive) it is the LL acts or omissions that ends the obligation to
pay rent not the tenants
 The Covenant of Quiet Enjoyment
 T has a right of quiet enjoyment w/o LL interference (for bargained use). If not express, implied.
o Quiet Enjoyment: Right of possession, occupancy, and beneficial use of all leased premises.
o Tenant's covenant to pay rent depends on quiet enjoyment
- Only applies if the wrongful conduct is so egregious that it interferes with the tenant’s use
o Very limited in scope: Does not provide any rights to tenant if a stranger to the lease interferes
with tenant. Disturbance/entry by 3rd party sufficient to constitute a breach of quiet enjoyment.
 Condition of premises can sometimes lead to a breach of this covenant
 Covenant of quiet enjoyment can be breached by actual (total or partial) or constructive eviction—
once evicted tenant relieved of obligation to pay rent.
o Actual eviction: physical expulsion or exclusion from possession (ouster)
- Total – If T is physically evicted from the entire premises – T’s rental obligation ceases
- Partial – If T is evicted from any portion of the leased premises by L, rent obligation abates
entirely until possession is restored.
- CL: T can stay in possession and refuse to pay rent.
o Constructive Eviction: Breach is so substantial as to justify the tenant absenting premises
- Tenant thereafter leaves within a reasonable time and is relieved of the obligation to pay rent
- Through fault of LL (wrongful conduct), theres a substantial interference with T’s use &
enjoyment of premises tenant has no alt. but to vacate (uninhabitable/unfit for intended use).
1) T must give LL notice and reasonable time to cure
2) Tenant must vacate premises w/in reasonable time of failure to cure and terminate
tenancy (no rent due) and sue LL for damages
3) Some let T stay & seek damages equal to difference b/ween the value of the property w/
and w/out the breach (Texas): partial constructive eviction (must pay rent)
 Elements of the covenant of quiet enjoyment and constructive eviction
 Today covenant can be breached by wrongful conduct of LL in failing to provide suitable premises
 Generally, only wrongful when the landlord is under a duty
 CL, LL was not liable for personal injury to T or others caused by dangerous conditions
on leased premises, even if the LL was negligent.
 Exceptions:
1. Short term lease of furnished premises (good condition);
2. common areas: landlord was responsible for care and good condition ;
3. Latent defects (need warn if knew or should have)
4. Nuisances (need to abate if affect leased premises)
 Acts of third parties
 Traditional: landlords are not responsible for the acts of third parties
 Today: jurisdictions are divided on the question
 Problem of Substandard Housing:
 Caveat lessee (lesser beware) led to LL maximizing profit by minimizing repairs—slums sprung up
 Led to housing codes starting in 1901 (NYC), mandating in most cities suitable living conditions.
 Problem: required enforcement by cities (often weakly enforced). Required inspection and hearing.
o May lead to closing of the building or landlord retaliation
o Fines were often cheaper to pay fine than fix
 Retaliatory Eviction:
 Problem—complaining (about violations of local housing codes) tenants being evicted.
 Solution: statutes/case law forbid this: cannot evict, raise rent or decrease services after complaint.
 Duty to Repair: Refers to ongoing obligations of parties
 At CL – without express agreement, LL has no duty to maintain and repair the premises
o Tenant has duty to conduct minor repairs if (1) lease is silent or (2) if assumes obligation
o LL received rent even if leasehold in disrepair & collect damages if tenant failed to maintain
o Regardless of the verbiage, however, the common law tilted heavily in favor of the landlord.
- Lease was seen as a conveyance for a certain period of time.
- Tenant could have inspected—caveat lessee.
- Landlord need only (1) deliver exclusive possession and (2) not interfere himself
 ML: Sec. 92.052. LANDLORD'S DUTY TO REPAIR OR REMEDY.
a) A landlord shall make a diligent effort to repair or remedy a condition if:
1. the tenant specifies the condition in a notice…;
2. the tenant is not delinquent in the payment of rent at the time notice is given; and
3. the condition:
A. materially affects the physical health or safety of an ordinary tenant; or
B. arises from the LL's failure to provide and maintain in good operating condition
a device to supply hot water of a minimum temperature of 120 degrees F.
- T’s rights have increased dramatically; LL’s have decreased (CL: ‘fix it yourself’)
3. The Implied Warranty of Habitability (replaced the CL doctrine of caveat lessee)
 CL: no duty on LL to keep premises in a habitable condition (absent statutes or lease language) except:
1. Short term lease of furnished premises (good condition)
2. Common areas
3. Illegal lease
 Today: law implies obligation on L in residential leases through the implied warranty of habitability.
 If violated, T is relieved of her lease obligations (rent).
 Invoked if premises have defects so serious a “reasonable person” would find uninhabitable. (Objective)
 A couple of defects will not suffice to invoke
 Cannot be waived and tenants knowledge irrelevant –unless equal bargaining power
 Applies to latent defects (hidden) or patent defects (easily found)
 Remedies for Breach of Implied Warranty: “Most effective way at getting the landlord to fix problems”
1) Remain in possession and withhold rent
 Breach prevents eviction or from suit for unpaid rent—rent might need to be deposited in escrow
 Typically, can withhold all rent for a partial breach of the implied warranty (at least until fixed).
o Ex: Rent is $1000/month; Toilet and lock broken, reducing rent value to $800/month;
o Tenant gives written notice stating issue and nothing is done w/in reasonable time;
o LL can sue for non-payment—court decide partial back rent owed & deny eviction request.
2) Remain in possession and “Repair and Deduct”
 Ex: Rent is $1000/month but toilet and lock are broken;
 Tenant gives written notice spelling out the problem and nothing is done within a reasonable time;
 Tenant fixes, pays $500, & deducts from rent (Cost must be reasonable (get estimates, save receipts)
 May also get damages for annoyance and discomfort
3) Remain in possession and sue for damages
 4) Terminate lease, leave and sue for damages
 Texas has an implied warranty of habitability in residential leases and the implied warranty of “suitability”
in commercial leases (can be waived by inserting the mere phrase “as is” in the lease)
IV. Transfers of Land
The Land Transaction
A. Real Estate Brokers:
 Fiduciary Duty: Mostly they work for the sellers; fiduciary duty to tell the seller everything that you tell them
B. The Contract of Sale
 A lease transfers a possessory interest in land—a conveyance
 Lease contains covenants (express. implied): duties, promises, & obligations–pay rent(T) suppling Utilities (L)
1. The Statute of Frauds
 Contracts for sale of real property must be in writing and signed
 Requirements
1. Signature—the agreement must be signed by the party sought to be charged
2. Description— the agreement must describe the land covered by the contract
3. Price—the writing must state the contract price
- If no price was agreed upon, a court may imply an agreement to pay a reasonable price.
 Texas Civil Prac. & Rem. Code 26.01(a)(5)—lease of real estate for a period > one year
 Exceptions
1. Part Performance
 Allows enforcement of oral agreements when acts have been performed in reliance (avoid injury)
o I.e.: Take possession, made improvements, already paid substantial amount
 More common in rural areas
2. Estoppel — affirmative defense
 When unconscionable injury would result from denying enforcement of the oral contract after one
party has been induced by the other to seriously change his position in reliance on the contract
2. Marketable Title
 “You are willing to pay fair market value for the title.”: NO KNOWN DEFECTS IN THE TITLE
 May impose restrictions upon the land:
1. Private Restrictions against the land = an encumbrance, making the land unmarketable
- Encumbrance: a burden on the land which impacts the owners use and the market
value (restrictions, easements, mortgages, liens, and covenants)
- Filed in the county under platt records
2. Public Restrictions does not make the land unmarketable
- Need to know the specific lot and plot number to find the restriction under zoning co.
- Easements zoning restrictions, municipal restrictions,
 Under either, if there is a violation of the restriction, then the title will become unmarketable
 Equitable Conversion: Only comes up when the seller drops dead
 If one of the parties to the contract dies, If equitable conversion has occurred, the seller’s interest is
personal property (right to the purchase price), and the buyer is treated as owner of the land.
o if the seller drops dead, and they leave all their property to one and the personal property to
the other…if the sell goes through then the person obtaining real property gets nothing, and
the one getting personal property gets everything (money)
 purchaser/seller of property are usually entitled to specific performance as a remedy for other’s breach
 Buyer is viewed in equity as owner has “equitable title” & seller has “legal title as trustee for buyer”
 The seller has a claim for money secured by a vendor’s lien on the land.
 In real estate contract sale, the burden of fortuitous (by chance, not design) loss in on the purchaser,
even though the seller retains possession
3. The Duty to Disclose Defects
 The seller of property is required to disclose known defects; required in most states (including Texas)
 Period where the buyer can have an inspection of the property done as well
 Abolished Caveat Emptor; no longer “buyer beware”
 Where the seller knows of facts materially affecting the value of the property which are not
readily observable and are not known to the buyer, seller has a duty to disclose
 Duty is equally applicable to all forms of real property–new and used
 CERCLA:
 Imposes strict liability for cleanup costs of hazardous waste site upon any current owner of a site,
and any prior owner of the site at the time it was contaminated, & any generator/transporter of waste
 Seller has a duty to disclose on-site & off-site defects (conditions) that may negatively impact buyer
o Purchaser of contaminated land held liable under CERCLA may sue seller for contribution
 Requirements for being a “bonafide purchaser” when buying rural property in Texas:
o Go out and inspect all the records in the county:
- Oil and gas, uranium leases, or any lease where there may have been exploration on
the property: Take core samples
 The term ‘encumbrance’ does not extend to the presence of hazardous substances, therefore if there
is hazardous substance on the property (the state of the property is damaged)  a damaged title
o “One can hold perfect title to land that is valueless; one can have marketable title to land while
the land itself is unmarketable”
 “As is” Clause
 A sales contract will be upheld if the defects are reasonably discoverable and there is no fraud.
 If there is fraudulent representation/concealment by seller, buyer usually is not bound by clause.
 The purchaser is not entitled to rely on vendors disclosure form if the defects are not disclosed in
the mandated disclosure form but were reasonably discoverable.
 vendor had no duty to disclose potential presence defect absent actual knowledge of its presence;
 vendor's failure to provide requested plans and specifications did not warrant avoiding “as is”
 building manager's statements to purchaser's maintenance supervisor were not material
representations of fact supporting finding of fraud;
 Merger (principally applies to questions of title or quantity of land)
 When a buyer accepts a deed, the buyer is deemed to be satisfied that all the contractual obligations
have been met. Thus, the contract merges into the deed, and the deed is deemed the final act of the
parties expressing the terms of their agreement.
 The buyer can no longer sue the seller on promises in the contract of sale not contained in the deed,
but must sue the seller on the warranties, if any, contained in the deed.
 Implied Warranty of Quality (replaced CL caveat venditor)
 A builder who constructed a home and then sold it to a buyer was protected from liability even if
the house was negligently constructed.
 Separate and distinct from a warranty of appliance (hot water heater is too hot)
o Difference: warranty of appliance does not transfer from seller to buyer (b/c = impied by the
seller) (“does not run with the land”); but warranty of quality passes for a number of years
(Runs w/ land); dependent on jurisdiction (TX: 10 yrs) may not sue the constructor until then
4. Remedies for Breach of the Sales Contract
 Deposit
 Retention (continued possession) for sellers
 Restitution (compensate for loss) for buyer
 Jones v. Lee-
 Special Damages may be awarded if the damages are shown to:
1) have resulted as the natural and probable consequence of the breach, and
2) at the time of the formation, the breaching party reasonably knew or should have anticipated
from the circumstances the damages would probably be incurred
 Punitive Damages will be awarded if the buyers’ failure to consummate the contract to purchase
was willful, wanton, and reckless (& sufficient to warrant).
 Kutzin v. Pirnie-
 Restatement (2): If a party justifiably refuses to perform b/c his remaining duties of performance
have been discharged by the other’s breach, the party is entitled to restitution for benefits conferred.
o For buyer to recover must prove deposit (earnest money) > Seller’s actual damages suffered.
C. The Deed
1. Warranties of Title
 Words of intent to make transfer (“I grant bargain and sell…”)
 Consideration not necessary—gift is acceptable; DELIVERY REQUIRED
 TPC §5.021.
a) Conveyance of an estate of inheritance, a freehold, or estate for more than 1 yr, in land and tenements,
must be in writing and subscribed and delivered by conveyor/their agent authorized in writing
 TPC §12.001. Instruments Concerning Property
 a) An instrument concerning real or personal property may be recorded if it has been acknowledged,
sworn to with a proper jurat, or proved according to law.
 TPC §13.001. Validity of Unrecorded Instrument-Innocent Purchaser statute.
a) A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as
to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the
instrument has been acknowledged, sworn to, or proved and filed for record as required by law.
b) The unrecorded instrument is binding on a party to the instrument, on the party's heirs, and on a
subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument.
 TPC § 13.004. Effects of Recording Lis Pendens
a) A recorded lis pendens is notice to the world of its contents. The notice is effective from the time it is
filed for record and indexed, regardless of whether service has been made on parties to the proceeding.
o Lis Pendens: a pending legal action, or a formal notice of this.
 There are three types of deeds used today:
I. General Warranty Deed- (Greatest degree of protection)
o Warranting title against all defects in title (arising before or after the grantor took title)
- Make this claim against the world
o “there are no defects with property at all.”  the type you want if you are buying property
II. Special Warranty Deed-
o Contains warranties only against the grantor’s own acts but not the acts of others
o If the defect is a mortgage on the land executed by the grantor’s predecessors in ownership,
the grantor is not liable
o Makes a representation of title that was conveyed by the seller only
o The seller has done nothing to affect the title of the property
o Willing to defend property title against every claim against the property during his ownership
III. Quitclaim Deed-
o Contains no warranties of any kind; conveys whatever title the grantor has, if any, and if the
grantee of a quitclaim deed takes nothing by the deed, the grantee cannot sue the grantor
o Doesn’t make any promises about the title
 Types of Consideration:
 Contractual Consideration: Consideration to be paid in the future
 Mere Consideration: Nominal, $1 in consideration of the deed
 Acknowledgement: Nothing but saying that the person who signed it was the person who signed it
 Express Warranties in a General Warranty Deed
 Present covenant is broken at the time the deed is delivered.
I. A covenant of seisin—Grantor warrants that he owns the estate that he purports to convey.
- “I have the right to sell the property”
II. A covenant of right to convey—Grantor warrants he has the right to convey. Serves the same
purpose as covenant of seisin, but possible for one w/ seisin not to have the right to convey
- e.g., trustee may have legal title but be forbidden by the trust instrument to convey it.
- “I have the right to convey.”
III. A covenant against encumbrances—Grantor warrants that there are no encumbrances
(mortgages, liens, easements, and covenants) on the property.
- “In every general warranty, there will be a section in which the seller lists all rights
reserved by the seller or any exceptions to the sale (encumbrances).”
 Future Covenants – They aren’t breached UNTIL grantee is actually or constructively evicted,
buys up the paramount claim, or is otherwise damaged.
I. A covenant of quiet enjoyment—Grantee will not be disturbed in possession or enjoyment of
property by a third party’s lawful assertion of superior title. For practical purposes, identical w/
covenant of general warranty and is often omitted from general warranty deeds.
II. A covenant of warranty  Grantor will defend on behalf of grantee any lawful claims existing
at time of conveyance and pay damages
- Similar to Covenant of Quiet Enjoyment
III. A covenant of further assurances—The grantor promises that he will execute any other
documents required to perfect the title conveyed.
 Brown v. Lober-
 Possessing land  possessing mineral rights sub-surface if there is a superior title on mineral rights
 o Must actually take possession of them, not just be able to do so (exclusivity); otherwise, the
subsurface is “vacant”
 The fact that P’s original contract had to be modified due to their discovery of a fact is not sufficient
to constitute the constructive eviction necessary to a breach of covenant of quiet enjoyment
2. Delivery
 A deed must be delivered with the intent that it be presently effective
I. Grantor hands over to grantee (grantor intents to make an immediate transfer to the grantee); or
II. Grantor puts deed in the hands of a 3rd party (escrow agent) who hands it over upon transaction
closing (grantor intents to transfer title when all conditions are fulfilled)
 Sweeney v. Sweeney-
 In determining whether a deed was actually delivered to a person, the execution of the confirmation
clause was prima facie proof that the deed was delivered. There is a rebuttable presumption that the
grantee assented since the deed was beneficial to him. Where deeds are formally executed and
delivered, these presumptions can be overcome only by evidence that no delivery was intended
 Delivery without handing over
 Delivery means no more than an act that evidences an intent to be immediately bound by the transfer
 Can also be the grantor’s declaration, express or implied, that he is bound by his deed
 Common: executes the deed and places it in a safety deposit box (often can’t prove intent to deliver)
D. Financing Real Estate Transactions
1. Intro
I. Promissory note (“real estate lien notes”)
 Security: vendor’s (seller) lien (implied or expressed lien every time real estate is sold, and the
purchase price is not paid…giving the seller the right to possession (re-entry) until debt paid)
II. Mortgage (also a “deed of trust”)
 A mortgage is a loan in which property or real estate is used as collateral. Borrower agrees
with lender (bank) & borrower receives cash upfront then makes payments until he pays back.
 Idea is when you sell real estate, want to make sure you have collateral
 The buyers are the mortgagor; the bank would be the mortgagee
 Would secure the promissory note just signed
III. Non-judicial foreclosure (42 states permit)
 In default, it is then the duty of the mortgagee (bank) to sell the mortgage at courthouse steps
 Gives the power to sell; once sold, right to redeem (pay off and get property back) disappears
o All you have to do is comply with the state’s statutory requirements; takes no time
IV. Judicial foreclosure (for the vendor’s lien)
 Takes time
V. Executory contract or conveyance (lien theory?)
 The person who owns it sells it but keeps the deed
 “Each party needs to perform still.”
o Seller must perform by giving you a deed
o Buyer must perform by figuring out a way to pay for the property
 Typically, these real-estate contracts are close at title companies
o That’s when title insurance comes into play
 Texas Title Policy: requires title company to check title and make sure it’s in good standing
2. Mortgage Foreclosure
 Murphy v. Fin Dev. Corp.- (Non-judicial foreclosure requirements…not applied in Texas)
 In order to comply with:
o “good faith” (case x. case basis); and
- Bad faith: must be an intentional disregard of duty or a purpose to injure
o “due diligence” (if reasonable man would have adjourned sale or taken measures to receive a
fair price (EX: advertising it for sale, setting an upset price (lowest acceptable price))
- Damages is the difference between a fair price for property and the foreclosure price
 In Texas, as long as not fraudulently done, the sell will never be set aside—we don’t care
o §7.21: inadequacy of foreclosure sale price will not invalidate a sale, w/out fraud/unfairness
 Commonwealth v. Fremont Investment & Loan-
 Unfairness: Judges focus on if D knew that they would operate in concert w/ the market essentially
to guarantee that borrower would be unable to pay and default would follow w/out unlikely change
3. The Mortgage Crisis and the Great Recession
  1980: fixed interest rates
 1990: “no longer ‘one size fits all’”; increased detachment between origination & incitement in mortgage
debt, expansion of homeownership to underserved groups, and increasing automation.
 2005: risk-based lending was in full swing; “no matter how risky your financial profile, you could get a
mortgage loan…for a price.” # of subprime mortgages almost 2x & Alt-A loans (no documentation loans).
Title Assurance
 A land sale is really a sale of title
 3 main methods of title assurance used
I. Title opinions based on a title search
II. Title insurance
III. Title covenants
A. The Recording System
1. Purposes of Recordation
i. Establishes a system of public recommendation of land titles
ii. Preserves in a secure place important document
iii. Protects purchasers for value and lien creditors against prior unrecorded interests
iv. Doctrine of BFP (one who purchases a land interest w/out notice of a 3rd party interest already held)
2. The Indexes
 Separate indexes are kept for grantors and grantees
 Listed under grantee’s name
 Tract Index: index documents by a parcel identification number assigned to the particular tract
 Luthi v. Evans-
 Property description is sufficient if it identifies property conveyed or affords means to identify w/in
instrument itself or by specific reference to other instrument recorded in the register of deeds office.
o Specific description of property is req. to give constructive notice to a subsequent purchaser
 An instrument which contains a “Mother Hubbard” clause is valid, enforceable, and effectively
transfers the entire property interest as between the parties to the instrument
o transfer effective to subsequent purchaser/mortgagee unless they have actual knowledge of
it
 Where an instrument of conveyance containing a sufficient description of the property conveyed is
duly recorded but not properly indexed by the register of deeds: will not prevent constructive notice.
 J. Hyrum Moore v. Greer-
 We may construe the deed as a matter of law only if it is unambiguous. Where the general description
conveys a significantly greater interest than the specific grant does, the deed will not be construed as a
matter of law b/c establishes there is ambiguity between what is written and what the parties intended.
 Mother Hubbard Clauses (aka: “strips and gores”) are supposed to only convey small missing tracts
adjacent to specifically described portions of land.
 Davis v. Mueller-
 Under both SOF, and the requirements of the Mother Hubbard Clause, where there is ambiguity or
inadequate description in the deed of what is to be conveyed, a general conveyance of all the grantor’s
property in a geographic area will not be given effect.
o SOF requires, in real-estate conveyances, that “the writing must furnish within itself, or by
reference to some other existing writing, the means or data by which the land to be conveyed
may be identified with reasonable certainty.”
o A Mother Hubbard clause is not effective to convey a significant property interest not
adequately described in the deed.
3. Types of Recording Acts
a. Race
 Who gets there first; notice is irrelevant
b. Notice (Texas follows you don’t have to record)
 The subsequent bona fide purchaser has priority even though that person fails to record
 If the second person conveyed to and without notice of the first conveyance, he wins
c. Race-Notice
 A subsequent purchaser for value who takes without notice of third-party interests in the land prevails
only if he records before the prior instrument is recorded
 The Shelter Rule:
 A person who takes from a BFP protected by the recording acts has the same rights as the grantor
 When you buy from a BFP for value, you become a bona fide purchaser for value
4. Types of Notice
a. Actual Notice: Personal knowledge of the prior interest
b. Constructive Notice: Notice of a prior interest that would be revealed by an appropriate title search
 Messersmith v. Smith-
 When the recording of an instrument affecting the title to real estate does not meet the statutory
requirements of the recording, the law affords no constructive notice
o Difficultly arises when the defect is latent, not when it is defect on its face
 Seale cannot use the acknowledgement (statutorily required) from the non-recorded deed for the
recorded one (missing acknowledgement), so the recording is not valid
 Note: Even if Messersmith did not have the property to convey (b/c gave it to her nephew), if the
deed had been properly acknowledged it would have been given to Seale (TPC § 12.001-13.001).
 Harper v. Paradise-
 The remaindermen had a > interest than the deed to paradise b/c the BFP should have been on
constructive notice b/c both deeds (1922) and (1928) were conveyed to the same person
c. Inquiry Notice: Notice based on a purchaser’s duty to investigate relevant circumstances
 Waldorff Insurance and Bonding, Inc. v. Eglin-
 A contract to convey legal title to real property on payment of the purchase price creates an
equitable interest in the purchaser. Beneficial ownership passes to the purchaser while the seller
retains mere naked legal title.
o Subsequent successors to the legal title take such title burdened with the equitable
interests of which they have either actual or constructive notice
- Constructive notice: the unit was occupied (actually possessed)
o When you take out a mortgage, all you have is an equitable right; different from
equitable title (which you get when you purchase a home & pay the mortgage in full)
5. Chain of Title Problems
 A series of recorded deeds; you are not on constructive notice for anything not within the chain of titles
 TX(in minority) follow subsequent of chain, not subsequent in time. Order of recording relevant
 There are four classic situations:
1) Prior document recorded too early: A document recorded before the grantor obtained title is not in
the chain of title and therefore is not legally recorded.
 X owns BA. O, who has no legal rights to BA, deeds title to A in 2014; A records. In 2015, X
deeds titles is BA to O, who records. In 2015, O deeds title to B, who records. Is B charged
with constructive notice of the O-A deed? No.
2) Prior document recorded too late: A document recorded after the grantor obtained title is not in the
chain of title and therefore is not legally recorded.
 O deeds to A, who does not record. O subsequently deeds to B, who knows of the conveyance
to A. B records. A records. Later B conveys to C, a purchaser for value who has no actual
knowledge of the deed from O to A. C records. Who prevails, A or C? C.
3) “Wild deed”: deeds that are not within the chain of title
 O conveys to A, who does not record. A conveys to B, who records the A-to-B deed. O
conveys to C, a purchaser for value who has no actual knowledge of the deed from O to A and
from A to B. C records. Who prevails, B or C? C. A (& B) are wild deeds & not recognized. C.
 Board of Education of Minneapolis v. Hughes-
o A deed that does not name a grantee is a nullity and wholly inoperative as a conveyance,
until the name of the grantee is legally inserted.
- There need not be a new execution/acknowledgement prior to the grantee inserting
their name, if they have either express or implied authority from grantor to do so.
4) Deeds from a common grantor:
 O, owner of BA and WA, conveys BA to A by a deed that also transfers to A an easement over
WA. A records the deed, and it is described in the index as a deed too BA. O subsequently
conveys WA to B, a purchaser for value who has no actual knowledge of the easement over
WA conveyed to A. B records. Is WA subject to the easement?
 Guillette v. Daly Dry Wall-
o Where one deed in chain of title states a restriction to apply to that described lot and also
an interest in the remaining land owned by grantor, and that deed is properly recorded,
all subsequent purchasers are subject to that stated restriction. (b/c inquiry notice)
- Texas does not follow; “If not in the subdivision plat, you are not bound by it.”
6. Persons Protected by the Recording System
  By judicial construction, recording statutes have been held not to protect donees and devisees (even in
race)
 @times, necessary for a court to decide if a person is a purchaser (protected) or a donee (unprotected)
 If a deed recites that it is for “$1 and other good and valuable consideration,” this raises a presumption that
the grantee is a purchaser for a valuable consideration, and places the burden of going forward to est. the
falsity of the recital of consideration on the party attacking the deed.
 Lewis v. Superior Court-
 Determining whether or not someone is a BFP for value: you will be when you record your deed (to
provide constructive notice to subsequent purchasers), or when you buy it and don’t record it
 Not necessary to continuously check for posted notice against your property incurring after your
record/buy your property
7. Marketable Title Acts
 When 1 has a record title to land for a designated period of time, inconsistent claims/interests are
extinguished
 Except for the interests excepted from statute, title searches may be safely limited to the # of years
specified
 All claimants of interests in land, to be safe, must file a notice of claim every 30-40 yrs. after recording
B. Title Insurance
 All this is, is an indemnity contract. If title has been insured, the insurance company must indemnify you
if you are harmed as a result of something the company assured you. (without harm, no duty to remedy)
 The ALTA owner’s policy basically covers four types of risk:
i. Risk that title is held by someone other than the insured party
ii. Risk of a defect, lien, or encumbrance on the insured’s title
iii. Risk that title is unmarketable; and
iv. Risk that the insured owner has no right of access to the land
 Parts of Title Insurance
 Schedule A: all the risks they are ensuring
 Schedule B: all the exceptions and exclusions
 Schedule C: only in the title commitment; if you don’t clear the things up in Schedule C, they become an
exception or an exclusion (EX: liens)
 Virtually every policy contains standardized exclusions (company  responsible). Standard exclusions:
i. Losses arising from gov’t regulations affecting the use, occupancy or enjoyment of land (EX: zoning
ordinances, subdivision regulations, and building codes), unless a notice of enforcement or violation
is recorded in the public records;
ii. Claims of persons in possession not shown by public records (ex: unrecorded or implied easements)
iii. Easements arising by prescription
- Policy exceptions are TITLE DEFECTS (actual or potential) that relate to the property,
meaning they make the title unmarketable
- Almost all institutional lenders require title insurance (at the borrower’s expense).
 Walker v. Chelsea Title Co.-
 Title company's liability is limited to the policy and liable in tort for negligence in searching
record
o Texas: no obligation because all you are as title insurance is an indemnitor, so you
aren’t liable for negligence; but you may be liable for misrepresentation (contract law)
 Survey exception (exclusion #2) purpose is to exclude from coverage errors that would be revealed
not by a search of public records, but by an accurate survey.
 RULE: purchaser duty to take sufficient measures (survey, not just policy insurance) to ensure their
buying of property is correct and accurate. If they fail to get such protection, responsible for issues.
V. Land Use Controls
Judicial Land Use Controls: The Law of Nuisance
A. Nuisance
 Nuisance Test: whether or not the particular use of the property is unreasonable.
 Definition: where one person’s unreasonable use of their property that results in a non-trespatory invasion
of another’s interest or use of their land
o The only person permitted to bring claim is the person being harmed
o Types:
I. Private brought by the person being impacted
II. Public brought by a gov’t agent or authority on behalf of its citizens
 o Interpretation
III. Per say: the use is unreasonable, outright.
IV. Per accidences: in other circumstances this may have been appropriate, but in these
circumstances, it is unreasonable (“In this context is this unreasonable?”)
o How To Avoid: get a prospective planning scheme, instead of filing suit after nuisance occurred
o What do courts look at in the balancing test:
1. Who was there first?
2. The value of what is causing the nuisance
3. Whether it is intentional or unintentional
4. What is the actual harm?
 Morgan v. High Penn Oil Co.-
 Private Nuisance Rule: An interference with use and enjoyment of land, in order to give rise to
liability, must be substantial; it must also be either intentional and unreasonable or the unintentional
result of negligent, reckless, or abnormally dangerous activity.
o Exists in a legal sense when one makes an improper use of his own property and injures the
land/ incorporeal right of his neighbor, regardless of degree of care or skill exercised to avoid
o ‘Unreasonable’: concerns the level of interference that results from the conduct
 Damages:
1. Permanent and/or temporary damages
2. Abate the nuisance with an enjoinment (court order to do a specific act)
3. Abate the nuisance with damages
 Lateral v. Subjacent support-
 Lateral support: support that provided to one piece of land by the parcels of land surrounding it
o (for both) CL: imposes a duty on neighboring land to provide the support the subject parcel
would need and receive under natural conditions (no right to support of structures on the land)
o (for both) COA does not arise until subsidence actually occurs or is threatened, and then it
runs against the excavator (who may be a predecessor of the present possessor)
o (for both) Liability is absolute; negligence need not be shown
o (for both) Right of support can be waived; can also be expressly expanded as by grant
 Subjacent support: support from underneath as opposed to the sides
o Issues arise when one person owns surface rights and another person owns some kind of
subsurface rights (ex: mineral rights)
 Boomer v. Atlantic Cement Co.-
 ‘Although the damage to the plaintiff may be slight as compared with the defendant’s expense of
abating the condition, that is not a good reason for refusing an injunction.’
o When the damage to plaintiff is substantial ($100/yr.), injunction would follow
 Permanent Damages: allowed if the loss recoverable = small compared w/ cost of removal of nuisance
o ‘Where a nuisance is of such a permanent and unabatable (abatable ex: improved by
technical improvement, new methods, etc.): whole damage past and future resulting, can be
recovered.’
o Awarding permanent damages precludes future recovery by plaintiff/his grantees
o ‘imposes servitude on land’: aka, an easement; right to continue to emit the nuisance b/c paid
o Court allows this b/c they avoid the risks that are incurred from shutting down the company
emitting the nuisance (decided their interest > through balancing test)
 The difference between a private and a public nuisance is generally one of degree.
o Private Nuisance: one affecting a single individual or a definite small number of persons in
the enjoyment of private rights not common to the public.
o Public Nuisance: must affect significant # of people, an entire community or neighborhood
- Public Nuisances Dangerous to Public Health: Any condition or place in populous
areas which constitutes a breeding place for flies, rodents, mosquitoes and other
insects capable of carrying and transmitting disease to any person or persons.
 The residential landowner may not have relief if he knowingly came into a
neighborhood reserved for industrial/agricultural and has been damaged
o Where injury is for minor inconveniences, remedy lies in action for damages not injunction.
 Holding: b/c clearly a public nuisance, the judgment enjoining the operation of the feedlot is affirmed;
b/c Spurr knew the area was ag. based, they must indemnify D for the cost of moving/shutting down.
o Because the nuisance was already there, the only fair remedy (makes sense, b/c “equitable
remedy”) is to abate it, but to force the man who moved out there to pay damages
Private Land Use Controls: The Law of Servitudes
A. Classifying Servitudes
 Traditional servitude doctrine classifies private use interests into four categories: 1) easements, 2)
covenants, 3) profits a prendre (“profits”), and 4) licenses.
 Covenants were divided into: 1) covenants enforceable at law (“real covenants”); and 2) covenants
enforceable in equity (“equitable servitudes”)

 The primary modern forms of servitudes: 1) easements, 2) real covenants, and 3) equitable servitudes
B. Easements
 The court classified easement in two different characters:
1. Affirmative (“positive”), or
 Give interest holder a right to do affirmative act on land someone else owns (most popular)
2. Negative (“restrictive”).
 Forbidding landowner from doing something on his land that might harm a neighbor
 English Courts only recognized 4: EX: 1) Interfering with the wind flow through individual’s
windows, and 2) diverting water in a creek so that it would not go on someone’s property
o No longer recognize any
 American courts also disfavored negative easements.
o Gives the easement holder the right to PREVENT the servient owner from using her land in
some way
o Rare and generally not permitted EXCEPT under CL:
- Light, Air, Subjacent or lateral support, Flow from an artificial stream, Solar or
Scenic?
 Conservation Easements—to preserve scenic and historic areas
 Negative easements cannot arise by prescription (AP)
 In addition to the distinction between positive and negative easements, easements are also classified as:
1. Appurtenant easements, or
 Gives that right to whomever owns a parcel of land that the easement benefits
 Benefits the dominant easement owner in the use of land belonging to that owner
 Requires both a dominant estate (tenement) and a servient estate
 Benefits and burdens pass automatically to assignees of the land which they are appurtenant,
if the parties so intend and burdened party has notice of the easement.
 Typically dealing with land that is adjoining
2. In gross easements.
 Gives the right to some person without regard to ownership of land
  Benefits the easement owner personally rather than in connection with use of land that the
person owns (Does not benefit any land; burdens the dominant estate (has nothing to do
with ownership of a benefitted estate, because this has to do with a benefitted person))
 Requires only a servient estate, but can have both
 Both give easement owners the right to make (negative easement: restrict) specific use of land they don’t own

1. Creation of Easements

  SOF generally, requires a written instrument signed by

the party to be bound thereby
 Must describe the property sufficient enough that a person could locate it
o Residential (“simple”): just put an address
 There are exceptions to the SOF: part performance, and estoppel, an easement may under certain
circumstances be created by implication or by prescription
 Part performance: req. substantial payment or go onto the property and make improvements
 Willard v. First Church of Christ, Scientist-
 Our primary objective in construing a conveyance is to try to give effect to the grantor’s intent
 B/c deed for lot 20 was recorded, the new purchaser was placed on constructive notice
 He must maintain the easement for as long as the property is used for the stated purpose
o If a new church takes over (language specifying which “church”) the easement is
maintained
 Easement in appurtenant b/c it benefits dominant estate(church) by use of subservient estate (lot 20
o The dominant estate is whoever is being benefitted by the easement
 Creation and Types of Easements
 Express Easement – SOF issue (must be in writing & sufficiently explained so that it may be located)
o Easement by Grant
 Implied Easement
o Implied by strict necessity or prior use (determined by circumstances)
 Prescription: gained by adverse possession
 Estoppel: (doesn’t have to be in writing); focus on a change in position to the relying party’s detriment
 Implied Easements: Easement created by operation of law, not by a written instrument; arises as an inference
of the intentions of the parties to a conveyance of land
 2 types – look carefully at elements to determine if present
1. Implied Easement by Necessity-implied when a tract is divided so as to deprive a portion of
the tract access to a public road
o Requires: Unity of servient and dominant estates prior to severance; roadway was a
necessity (strict or reasonable) not mere convenience; and necessity existed at severance
2. Implied Easement by Use (lasts forever)
o Requires: Unity of servient and dominant estates prior to severance; apparent existing
and continuous use; necessity (strict or reasonable) not mere convenience
o focuses on the intention of the parties at the time the original contract is entered into
 Texas req. strict necessity if implied reservation & reasonable necessity if implied grant
 A reservation is a deed provision creating new servitude not existing before as an independent interest
 Not giving it all away, saving something for yourself
 EX: O conveys Blackacre to A, reserving a 20-foot-wide easement of way along the south boundary
of Blackacre. The easement did not exist as an independent interest prior to the conveyance by O.
 Othen v. Rosier-
  (original owner had the ability to get out because he owned it all)
 Where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by
the lands of a stranger, there is an implied reservation of a right of way by necessity over the land
conveyed where grantor has no other way out
 Easement by Prescription requires continuous, open, hostile, and adverse character of the user
(similar to AP but doesn’t have to be exclusive except in Texas…b/c if not exclusive, and the
owner uses the easement in the same way, then it implies consent, which = license.)
o Use by express or implied permission or license cannot ripen into an easement by prescription
because they do not have a right to use by permission
o It cannot be considered an easement by prescription if the owner also uses it in the same way
b/c that implies consent (& consent = license)
o Perspective period does not begin to run while the dominant and servient tracts are under the
same ownership (since a person cannot claim adversely to himself)
 If they could have est. that there was only one way out (necessity), then they could have won
 An exception is a provision in a deed that excludes from the grant some preexisting servitude on the land
 EX: after above conveyance, A conveys BA to B, except for the easement previously reserved by O.
 Regrant Theory(TX) was created to get around that English courts held that an easement could not be reserved.
 English Courts believed an easement “reserved” by the grantor was not a reservation at all (void), but
a regrant is an easement by the grantee to the grantor.
 It is an implied regrant to the party benefitting
 Thus, a deed from O to A and her heirs, reserving an easement in O, was treated as if it were two
deeds. The deed grants A a fee simple; then A is treated as granting an easement back to O.

Easement by necessity (before sale he does not possess an easement, b/c cannot grant an
easement to yourself on your own property)
 Requirements: must be unity of estates & necessity
 English: requires strict necessity
 US: requires reasonable necessity
 Giving the grantee more than he was bargained for (gives grantor an opportunity to charge
more)

 Easement by use
 Requirements: must be unity of estates & necessity
 US and English: require Strict necessity
 Buyer has the opportunity to pay less because he’s getting less than he
bargained for (b/c easement through WA included)

 Van Sandt v. Royster-

 Easement is an interest which a person has in land in the possession of another, so it follows that an
owner cannot have an easement in his own land. However, an owner may make use of one part of his
land for the benefit of another part: quasi-easement (not a legal relation, but a created right)
 Quasi-easement: apparent, continuous & necessary (becomes real easement by pre-existing use)
 Asserting parties were on constructive notice: moved in and connected to the lateral sewer line
 If the city constructs a public sewer, and that the owner of lot 4 can connect with it. Does the owner of
lot 4 lose the implied sewer easement over lots 19 & 20? No, because there’s a pre-existing use.
 “Quasi-easement”: Courts will imply an easement on the basis of an apparent and continuous (or permanent)
use of a portion of the tract existing when the tract is divided.
 Protects the expectations of the grantor and grantee that the existing use will continue after transfer.
 Extinguishment of the implied easement.
 If the dominant and servient parcel come into the same ownership, the easement is extinguished.
 It will not be revived by a severance of the united title into the former dominant and servient parcels.
o If the united title is subsequently re-divided, a new easement by implication can arise if the
circumstances at that time indicate a new easement was intended.
 A license is oral (typically) or written permission given by the occupant of land allowing the licensee to do
some act that otherwise would be a trespass; it is revocable (different from Easements)
  Irrevocable license is treated the same as any other easement, unless parties intended or reasonably
expected it would remain irrevocable only so long as reasonably necessary to recover expenditures
 The usual requirements for a license to become irrevocable are
1) permission by the landowner of another’s use of the land;
2) good-faith reliance on the permission by the licensee, usually by making improvements; and
3) landowner’s knowledge (or reasonably should have known) of such reliance.
o Two exceptions:
1) If a license coupled with an interest cannot be revoked.
2) If a license becomes irrevocable under the rules of estoppel (change in position by
reliance).
 Kenzie v. Myers- (Texas follows this rule)
 Where an owner of land, without objection, permits another to expend money in reliance upon a
supposed easement, by justice and equity he is estopped to deny the easement.
 Rule: If an owner misleads or causes another in any way to change his position to that party’s
prejudice, the owner is estopped from denying the existence of the easement.
o CL: not req. for easement by estoppel that a property owner must mislead or misrepresent.
 Henry v. Dalton- (contrary view ^)
 A parol license justifies anything done by the licensee before revocation, but is revocable at the option
of the licensor (although intention = to confer a continued right and money was expended in reliance)
 There are states that have issues with the SOF (even where you expended money to obtain the license
and relied to your detriment…if not in writing then the interest in land will not be upheld)
2. Scope of Easements
 Brown v. Voss-
 Home being built on B & C…but easement only for B…so if easement is to be used, home may not be
built on B & C…but may build on B & C if they find an alternate means of entry ( easement used)
 May you use an express agreement for one parcel of land to extend to another parcel of land? No.
o If easement is appurtenant to a particular parcel of land, any extension (adjoint or distinct)
to other parcels (not appurtenant) is a misuse of easement. (even insignificant trespass)
 No injunction was granted b/c there was no substantial increase in the burden relating to the easement
o However, Dominant owner may not subject servient to use or servitude in connection with
other premises to which the easement is not appurtenant…if so, an injunction will be issued
 $1 permanent damages so nothing precluding future suit for damages by those burdened by
easement
 Relocation:
 CL: Easement location, once fixed, cannot be changed by servient owner w/out dominant consent
 Restatement (Third) of Property. The servient owner has the right to change the location of an
easement, at his expense, if the change does not significantly lessen the easement utility, increase
the burdens on easement owner in its use &enjoyment, or frustrate the easement created purpose.
 Spatial Dimension Changes:
 CL: If the parties do not agree to it, dominant holder is entitled to narrow an easement so long as
doing so does not interfere with the use for which the easement was intended
 Restatement (Third) of property. Allows the dominant estate to change due to normal circumstances
reasonably contemplated by the parties; subservient estate has less deference.
3. Termination of Easements
 Preseault v. United States-
 To constitute an easement, the gov’t shall only take as much land as is necessary for public purpose.
o The scope of an easement may be adjusted in the face of changing times to serve the
original purpose, so long as the change is consistent with the terms of the original grant
- If the gov’t’s use of the land is not within the scope of the easements, then that use
would constitute an unauthorized invasion of the land
 consider: 1) nature of changed usage, 2) if the grantor burden increased
o Ends by abandonment (usually), which causes the easement to be automatically
extinguished by law, and owner of the fee estate is relieved of the burden of the easement.
- Easements are not extinguished (abandoned) by non-use
 Acts by the owner of the dominant tenement manifesting either a present intent
to relinquish the easement or a purpose inconsistent with its future existence.
 If, over owner’s objection, gov’t chooses to occupy or acquire owner’s interests, = taking (comp. req)
o The action being taken by a gov’t agency  an excuse to take without compensation.
  Easements can be terminated in a number of ways (9)
C. Covenants Running with the Land
 “It doesn’t do you any good to sign a contract and tell them they cannot do something on that land (EX: build
an apartment building), unless you can enforce it against someone else (if that buyer re-sells the land).”
 This is why you must conform to the requirements of the ability to run.
 “Touch and concerns the land” -affects the use of the property; is something affects the use, then it “runs
with the land” (really, runs with the estate of the land)
 Contractual obligation arising between adjoining land owners v. contractual obligation arising when A sells
land to B (then, privity of estate…horizontal)
1. History of Covenants
 Contract rights were not enforceable against assignees at CL because there was no privity of contract.
 The CL courts came up with one exception—where there was privity of estate—the contract could be
enforceable against an assignee in the case of LL and T.
 Did not allow privity of estate to include other contracts esp. those w/ neighbors concerning land.
 American courts developed real covenants to extend the reach of enforceability relating to land to successors
2. Covenants Enforceable at Law: Real CovenantsThe Traditional Approach (still followed in Texas)
a. Privity of Estate
 Privity is often required to give a party standing to enforce rights
1. Privity of contract – the relationship between the promisor and promisee.
 does not have horizontal privity
2. Privity of estate – relationship b/ween grantor & grantee arising from conveyance of right of possession
 does have horizontal privity
b. Real Covenant
 Real Covenants That Runs with Land-Traditional requirements:
1) It is legally enforceable (at law)-writing
2) Parties intended the promise to run with the land
3) Touches & concerns the land- promise must relate in some way to use, enjoyment, possession of land
 rather than being of personal concern to the original contracting parties
4) Horizontal Privity for burden to run but not necessary for benefit to run (today covenant enforceable
whether or not it was created in conjunction w/ transfer of some other interest in the land)
5) Vertical privity necessary for both burden and benefit to run (today most jurisdiction do not require
vertical privity, i.e., a party can enforce the covenant whether she got property from original
promisee, or not)
6) Notice—covenant cannot be enforced against A1 if she has no actual, constructive or inquiry notice of
the original promise between A and B

i. Horizontal Privity
1. Courts: privity of estate between landowners is a successive (grantor-grantee) relationship
2. Allows enforcement of the covenant against successors when the covenant is created in
conjunction with the transfer of some other interest in land but not otherwise
- This is why it is so hard for horizontal privity to be est….b/c it is unlikely that the
orginally covenanting parties were in succession. When it does appear on the exam,
 it is because A bought the parcel that she then voluntarily burdened from B; B
bought the parcel from A, and then extracted the benefit from A in negotiations.
ii. Vertical Privity
 If you have horizontal privity, you must have vertical privity.
 The only time vertical privity will be absent is when A1 acquired her interest by with AP (hostile
to A)
 Under the law of real covenants, burden and benefit run with estates in land, not the land itself
 Idea implies that the covenant is enforceable by and against remote parties only if those parties
have succeeded to the original parties’ estates in the land in question.
 Different standards are required for vertical privity on the burden and benefit sides
a. Burden: promise enforceable only against one who succeeded (grantor/grantee; LL/T;
debtor/creditor) to same estate as original promisor
- Hence burden of a real covenant does not run to (not enforceable against) an AP b/c
does not succeed to original owner’s estate, but takes new title by operation of law.
b. Benefit: the promise is enforceable by a person who succeeds to the original promisee’s
estate or to a lesser interest carved out of that estate
 Original contracting parties must have intended to bind successors to their respective estates.
 Notice
 Notice of the covenant is, strictly speaking, not required for the covenant to be valid. But the
covenant may not be enforceable against one who lacks notice (actual, record, or inquiry).
c. A real covenant can be a negative promise (a promise not to do an act) or an affirmative
promise (a promise to do an act).

3. Covenants Enforceable in Equity:

 A covenant equity enforces against assignees of burdened land even if it doesn’t run as a real covenant at law
 Developed by English equity court to enforce restrictions of land use (negative covenant) by successive owners
 US allows affirmative obligations to be enforced as equitable servitudes –not England.
 Burdens land itself not the estate in land—thus in most cases privity of estate (horizontal or vertical) is not
necessary for its enforcement.
 Furthermore, once the land is conveyed promisor not liable on breach of covenant by the new owner;
nor can promisee enforce the restriction after he no longer owns property
 Remedy is to seek injunction to enforce negative covenant/servitude (in US also affirmative) not damages
 Tulk v. Moxhay-
 If there was a mere agreement and no covenant, the Court would enforce it against a party purchasing
with notice of it; ‘one purchasing w/ notice of attached equity  different from party purchased from.’

 Requirements
of equitable servitudes
 An equitable
servitude,
enforceable by
an injunction is a covenant respecting the use of land enforceable against successor owners or
possessors in equity regardless of its enforceability at law.
 You can sell an injunction
  Only subsequent purchasers, and not donees, are protected against prior interests of which they
have no notice
 Vertical privity is not required for the benefit of an equitable servitude to run in nearly all jurisdictions
 Restatement 3rd: “The third-party-beneficiary doctrine provides the basis for recognizing that
servitude benefits of all types can be created in favor of persons, either in gross or as holders of
interests in land, who are not otherwise parties to the transaction”

 Is it a real covenant OR an
equitable servitude?
 Traditional difference between real covenants and equitable servitudes relates to the remedy sought.
o The remedy for breach of a real covenant is damages in a suit at law.
o Breach of equitable servitude remedy: an injunction or enforcement of a lien in equity suit.
 In the large majority of cases, the plaintiff seeks an injunction to enforce the covenant.
o Part of the reason is that if an injunction is granted, the plaintiff can “sell the injunction” to D
 The Statute of Frauds and implying equitable servitudes from a common plan
 A real covenant is an interest in land within SOF and must be written and signed by covenantor.
o A real covenant cannot arise by estoppel, implication, or prescription (as an easement can).
 An equitable servitude is an interest in land. But unlike a real covenant, it may be implied in equity
o An equitable servitude, which arises out of a promise, cannot be obtained by prescription
 Despite SOF, most courts imply an equitable servitude where a developer of a residential subdivision
has manifested a common plan or scheme of restrictive servitudes throughout development
4. The Restatement (Third) approach – Unifying the Law of Servitudes
 There is no difference in the rules applicable to real covenants and equitable servitudes.
 Drops terms “real covenant” & “equitable servitude” & refers to them as covenants running with the land
 Applies the same rules to easements and covenants, unless there is a sound reason for differentiation.
 Horizontal privity of estate is not required for a covenant to run at law to successors
 Provides that vertical privity is never required for negative promises and is required for affirmative promises.
 Abandons the “touch and concern” requirement in favor of a default rule that a covenant is initially valid.
 Provides that the changes conditions doctrine applies to all types of servitudes
5. Termination of Covenants
 Covenants can be terminated in several ways. (merger, formal release, acquiescence, abandonment, equitable
doctrine of unclean hands, equitable doctrine of laches, and estoppel) (will not have to list)
 Can also be terminated through the exercise of gov’t’s eminent domain power and by prescription
 River Heights Associates L.P. v. Batten-
 The changes must be so radical as to destroy the essential objects and purposes of the agreement
 The conditions existing within the subdivision must be examined along with those existing in the
surrounding area in order to determine the issue fairly
 Note: Individual property owners within the subdivision are 3rd party beneficiaries and receive the
benefit—case law shows that have to have 100% agreement for releasing the restrictive covenant
 The Changed Condition Doctrine
 As long as restriction is of value to land, courts usually will not terminate it, even if conditions have
changed in a way that restriction decreases value of other land
 A court can enforce a restrictive covenant by injunction (usually) or by award of damages for breach
 The Restatement (Third) Approach
 §7.10(2): “If the purpose of the servitude can be accomplished, but b/c of changed conditions the
servient estate is no longer suitable for uses permitted by servitude, a court may modify the servitude
to permit other uses under conditions designed to preserve the benefits of original servitude.”
o Applies to both easements and equitable servitudes
6. Discriminatory Servitudes
 Shelley v. Kramer-
  14th amendment erects no shield against merely private conduct, however discriminatory or wrong
 Restrictive agreements alone  a violation of any rights guaranteed to petitioners by 14th. However, if
discriminatory, when enforced by judicial ruling, the petitioner’s rights have been infringed upon.
 Discrimination against Group Homes
 The intended use is permissible either b/c 1) the restriction was intended to regulate an architectural
style rather than the relationship among the structure’s inhabitants, or 2) that “single-family” was
intended to be interpreted to include groups of otherwise unrelated persons who function as a family.
7. Common Interest Communities (CICs): Residential ownership in which management of the development is
separated from possession.
 There are three basic types of CICs—
iii. condominiums,
iv. cooperatives,
v. and planned subdivisions, including gated communities.
 Almost every state has adopted a statutory scheme for organizing a CIC.
 These statutes require a declaration of rules: covenants, conditions, and restrictions (CC&Rs)
governing the community, which must be disclosed to purchasers
o Usually enforced by homeowner’s associations.
 Nahrstedt v. Lakeside Village Condominium-
 Courts are req. to enforce CC&Rs contained in recorded declaration (deed) “unless unreasonable”
o Enforcement does not depend on the conduct of a particular condominium owner; it will be
uniformly enforced and afforded a presumption of validity
- Presumption of validity + requirement that the homeowner association act w/ good
faith and in the best interests of the association/its members
o challengers required to est. “unreasonableness” by deferential standard applicable to
equitable servitudes (reference to common interest development as a whole, not individual)
 “reasonableness”: so long as it doesn’t violate public policy (burden on use of affected land > any
benefit), is not arbitrary, and does not violate a fundamental constitutional right
o “If there is a statute or city ordinance prohibiting and you violate it…violating public policy.”
 In CICs, any requirement of horizontal or vertical privity is met because the original purchasers are all in
privity with the developer and subsequent purchasers are in privity with the original purchasers.
 Any requirement that a covenant touch and concern (“runs w/”) the land is usually satisfied.
 § 3.1 Validity of Servitudes:
 General Rule A servitude . . . is valid unless it is illegal, unconst., or violates public policy
 Servitudes that are invalid b/c they violate public policy include, but are not limited, to ones that:
1) is arbitrary, spiteful, or capricious;
2) unreasonably burdens a fundamental constitutional right;
 Condominiums and Cooperatives
I. Condominiums
 Each unit in a condominium is owned separately in fee simple by an individual owner.
 Exterior walls, land beneath, hallways (common area) are owned by unit owners as tenants in common
 Failure of one-unit owner to pay mortgage interest or taxes does not jeopardize the other unit owners.
 Declaration of condominium, filed before the first sale, will provide for an association of unit owners
to make/enforce rules, manage common areas, and maintenance charges levied against unit owners.
 Each purchaser, by accepting a deed, becomes an association member and must abide by its bylaws
II. Cooperatives
 Property title is held by a corp.; residents own all stock shares and control by elected board of director
 Each resident also has a long-term renewable lease of an apartment unit. ( fee simple absolute)
 Hence residents are both owners of the cooperative corporation (stock ownership) and tenants.
 If one cooperator fails to pay, other cooperators must make it up or entire property may be foreclosed
Legislative Land Use Controls: The Law of Zoning
A. Intro
 “Zoning was historically a response to nuisance.”
 Adopted by city gov’t. Most have a zoning board (containing appointee from each district) to bring districting
claims.
 The parties will be: 1) the city/gov’t party, 2) people affected, and 3) the developers
1. Constitutionality
  Village of Euclid v. Amber Realty Co.- (made zoning constitutional) (‘on its face’) (est. ‘Euclidian Zoning’)
 Test Will be judged by rational basis scrutiny: A zoning ordinance is presumed constitutional
unless the challenging party shows it is unreasonable, arbitrary or not rationally related to the 10th PP
o 10th Amend.: anything not delegated to the federal government, is retained by the states
o If the validity of the classification for zoning be fairly debatable, defer to legislative judgement
o Where there is a general complaint, and not specific, it cannot be said that the landowner has
suffered or is threatened with an injury which entitles him to challenge their constitutionality
 Nectow v. City of Cambridge- (‘as applied’)
 “if, generally, we would have drawn a different line, we will allow an irregular zoning line if w/in PP
 Briar Meadows Development v. South Centre Township Board of Supervisors-
 P: “shouldn’t have been denied redistricting, because the way that they want to use the land is
consistent with what the city had planned for that area (comprehensive plan).”
 RULE: inconsistency with a comprehensive plan is not a proper basis for denying a land development,
nor can it be a basis for a substantive challenge to a zoning ordinance
o Texas: You must have a comprehensive plan, and it must be complied with.
2. Zoning Authority and Legislation
 Money (economic reasons) by itself is not a reason to rezone
 PP resides w/ state, but w/ zoning, all states have adopted enabling acts delegating authority to local gov’ts
 The Standard State Zoning Enabling Act is fairly representative of zoning ordinances
 To enact a zoning ordinance a city must create a planning (or zoning) commission and a board of
adjustment (sometimes called a board of zoning appeals).
 The commission and the board are composed of citizens appointed by the mayor.
 The commission, advised by planning experts, has the function of recommending a comprehensive
plan and a zoning ordinance to the city council.
 The zoning ordinance must be enacted by the city council.
 The regulations must be made in accordance with a comprehensive plan.
o The comprehensive plan is a statement of the local gov’t’s development objectives and standards.
o Even when a written plan exists, zoning regulations inconsistent with it are not necessarily
invalid, so long as they are considered reasonable and in the public interest
B. The Nonconforming Use
 PA Northwester Distributors, Inc. v. Zoning Hearing Board-
 Rule: amortization statutes are unconst. (in this jurisdiction; most still allow so long as it is reasonable);
doesn’t mean that it will stay nonconforming forever, but instead, the natural order will push this non-
conforming use out once he sells the property rights to another
 If the gov’t attempts to interfere (by placing this time restriction to require them to change their use of
the property to be conforming) with one’s property rights (use his land as he sees fit) without unlawful
use, the existence of a nuisance, or abandonment of the property, then the interference amounts to a
taking and gov’t must compensate for that taking
o You can have a zoning that is in compliance with the comprehensive plan and be rationally
related to the police powers, and it still amount to a taking.
C. Achieving Flexibility in Zoning
 Options: amendments, variances, and special exceptions
1. Variances and Special Exceptions
a. Variances: A request to deviate from current zoning requirements.
1) The variance must not be contrary to public interest
2) Due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship
3) By granting the variance, the spirit of the ordinance will be observed, and substantial justice will be done
4) Such variance will not authorize the operation of a use other than those uses specifically authorized for
the district in which the subject property is located
 First, variance must be necessary to avoid imposing undue hardship on the owner of land in question.
o (Undue hardship “no effective use can be made of the property if variance is denied.”)
o To show hardship:
1) owner must have made reasonable efforts to comply with the zoning ordinance(ex: owner
of undersized lot trying to sell/buy additional land from a neighbor at a fair price).
2) owner’s hardship must not have been self-inflicted (ex: such as by earlier disposing of
part of his land with the result that what was left fell short of area requirements).
  Second, the grant of the variance must not substantially impinge upon the public good and the intent
and purpose of the zoning plan and ordinance.
o This requires paying attention to “the manner in and extent to which the variance will impact
upon the character of the area.”
 Conditional Variances
o In granting a variance, zoning boards may impose reasonable conditions related to the use of the
property that minimize the adverse impact of the use on neighbors.
o On the other hand, zoning boards may not condition a variance upon use of the property by the
original applicants only, as this has no relation to ameliorating the effects of the proposed land use
and is unrelated to the legitimate purposes of zoning.
 A variance must run with the land
 Granting of a variance: Area v. use
o Area: compatible use, but ill fit; Have to show a hardship
o Use: incompatible use; Almost never going to be granted
o The burden of proof is said to be greater for a use variance than for an area variance.
b. Special Exceptions (sometimes called conditional uses)
 Differ from variances in that while a variance is an administratively authorized departure from the
terms of the zoning ordinance, “an exception is a use permitted by the ordinance in a district in which it
is not necessarily incompatible, but where it might cause harm if not watched.”
 Examples include airports, landfills, and hospitals. The harms involved might be noise or traffic.
 Zoning board grants case-x-case, and only after est. the use will not cause harm in the specific location.
2. Zoning Amendments and the Spot Zoning Problem
 Whenever there is any kind of amend./change to one lot, that often violates spot zoning & is impermissible.
 Where it is a gas station on the side of the highway (or somewhere that rezoning makes since) it may be
permissible b/c reasonable = little chance of collusion occurring
 Look for:
1) Does this single out a small parcel of land for special and privileged treatment? If yes, likely violates.
2) Is only one person benefitting? If yes, likely violates.
3) Is this inconsistent with the comprehensive plan? (In Texas): If yes, likely violates.
Eminent Doman and the Problem of Implicit Takings
A. Public Use (and Just Compensation)
 Kelo v. City of New London- (‘public use’  ‘public purpose’)
 Public Use Requirements on the gov’t:
1) must tell us what the intended outcome for the property being taken was
2) there must be a causal connection that connects the action being taken and the intended outcome
 What do we do about who’s benefiting?
o Sovereign may take property from A and eventually give it to B if the purpose of the taking is
"future ‘use by the public’"
o Gov’t cannot take the property of A for the primary purpose of giving to B, even if A is
compensated when there is no public access/use
o You cannot condemn land for open use
 Permissible b/c for a public purpose:
o Just because it benefits a private person, doesn’t mean that they aren’t benefitting the public.
o Use by the public (may be privately owned but w/ public duties: used by public) = public use.
o To determine: must look at the taking’s purpose and not the mechanics (the plan as a whole)
 Note: this home was not blighted (would have created a justification for the taking)
B. Implicit Takings (“regulatory takings”)
 Arise when a consequence of gov’t action (regulatory or not) so restricts the use/enjoyment of private property
that is equivalent of an explicit takings (condemnation). (even w/ gov’t’s insistence that no taking has occurred)
 Inverse condemnation: property owner is responsible for proving that the action = a taking
 There are 3 types:
A) Physical Invasions
1) Defacto taking
 Most common: flooding; if you are invading my land, then it is a taking
B) Regulatory Takings
2) Total Deprivation:
 3) Partial Deprivation: you didn’t take my entire bundle of sticks, but you took part of it
1. Standard Approach: Ad Hoc Balancing
 Pennsylvania Coal Co. v. Mahon- (wrong test: mixing taking test & rational basis test; follow 3 cases to follow)
 The act preventing mining was not a proper exercise of the state PP
o Overreach if you prohibit one from access to their estate, if its sole purpose is economic benefit,
you must compensate (when you take one’s valuable estate to $0, you must compensate)
 Penn Central Transportation Co. v. City of NY-
 May a city place restriction on historic landmarker w/out effecting a taking that must be compensated?
o Yes, a use restriction may be a "taking" if not reasonably necessary to bring about a substantial
public purpose, or perhaps if it has an unduly harsh impact upon the owner's use of the property.
 RULE: A "taking" may more readily be found when the interference with property can be
characterized as a physical invasion by the gov’t, than when the interference arises from some
public program adjusting the benefits and burdens of economic life to promote common good.
 The Court says that there does not need to be a total deprivation of property to constitute a taking.
 New test here: always going to be an ad hoc inquiry (different than normal, but necessary under facts)
 The Court engaged in an ad hoc form of review, identifying three relevant factors:
1) diminution in value;
2) whether the regulation prevents a harm to the general public; and
3) whether the regulation secures an “average reciprocity of advantage.”
 Ad Hoc Factual Inquiries Factors:
 The nature or character of the government regulation
 The economic impact of the regulation on the subject property
 The extent a regulation interferes with owner’s reasonable, investment-backed expectations
2. Categorical Rules
 Loretto v. Teleprompter Manhattan CATV Corp.
o RULE: When the "character of the governmental action," is a permanent physical occupation/invasion of
property, the SC has uniformly found a taking to the extent of the occupation, without regard to whether the
action achieves an important public benefit or has only minimal economic impact on the owner.
o a permanent physical occupation authorized by the government is a taking, period.
 What to look for when trying to find a “permanent physical occupation/invasion”
 Physical & permanant (removable is sufficient, if the expectancy is that it will not be)
 Owner does not have any say as to how it is put there or how long it will be there
o where the owner has voluntarily permitted the initial occupation, government regulations that perpetuate the
occupation do not affect a Loretto-like physical taking.
o the per se rule for physical takings applies to personal property (Loretto) as well as to land.
o Notes:
 The Court has developed a small number of such rules to determine whether a regulatory taking exists.
Such (“per se”) categorical rules are the exceptions to the Court’s usual balancing approach in
regulatory takings cases.
 A regulation of personal property use does not affect a per se taking; indeed, the taking clause permits
many forms of regulation of personal property (e.g., regulation of dangerous drugs).
 Lucas v. South Carolina Coastal Council
o Test: total economic deprivation
o RULES:
 At least two discrete categories exist of regulatory action as compensable without case-specific
inquiry into the public interest advanced in support of the restraint.
1) regulations that compel the property owner to suffer a physical invasion of his property. In
general (at least with regard to permanent invasions), no matter how minute the intrusion, and
no matter how weighty the public purpose behind it, the Court has required compensation.
2) the Supreme Court of the United States has also found categorical treatment appropriate is
where regulation denies all economically beneficial or productive use of land.
o Where a state seeks to sustain a regulation that deprives land of all economically beneficial use, it may resist
compensation only if the nature of the owner's estate showed that the proscribed use interests were not part of
his title to begin with. In other words, no taking when preventing the owner to do something that he is not
allowed to do anything (ex: nuisance)