Property – LAW 5400

Introductory Information:
I. Lockean Labor Theory (p. 15): justification of private property that is based on the natural right
of one’s own labor, + the right to nature’s common property to the extent that one’s labor can
utilize it
a. A means so that property other than the self can still be your property if it’s from the
fruits of your labor
b. When you invest in something else, it becomes a part of you
c. Property originally comes about by the exertion of labor upon natural resources
d. An example of this theory is your house is your property (you may have built the house
with your own labor, but you definitely paid for the house with your own money earned
through the exertion of your labor elsewhere)
e. Law of Accession (p. 15): if somebody adds or accedes labor to something belonging to
someone else + turns it into something else (something better), you both might be
considered owners
II. Contemporary understanding of property: it is the study of people with respect to things; it is
about human relationships
III. Bundle of Sticks Metaphor (What do Property Rights include?) (REMINDER: NO RIGHT IS
ABSOLUTE):
a. The right to use
i. Ex: I own my sunglasses; therefore, I can wear them
b. The right to possess
i. Ex: I own my sunglasses; therefore, I can have them with me when I want
c. The right to exclude (others from using it)
i. Ex: I own my sunglasses; therefore, if Alex wants to borrow them, I can say no
ii. The caveat to this right is owning a business that is a public accommodation
1. By opening your property to the public – you make it a public
accommodation such that you are subject to the law (which is different in
each jurisdiction as it pertains to this)
2. Regarding this, the law is mostly prohibiting businesses from
discriminating based on sex + race
d. The right to alienate (transfer it to someone else – sell, devise, lease, gift, bailment)
e. The right to destroy (DON’T ALWAYS HAVE)
i. Ex: I own my sunglasses; therefore, I can destroy my sunglasses. However, if I
own my house, I cannot destroy it
f. The right to abandon (DON’T ALWAYS HAVE)
i. Ex: I own my sunglasses; therefore, I can abandon them at the mall because they
are my personal property (therefore, tangible + movable). However, if I own my
house, I cannot abandon it because it is real property (therefore, tangible +
immovable)
IV. Property Disputes: disputes between two parties over the same resource

Primary Acquisition:
Property Rights + the Body:
 I. Moore v. Regents of the University of California (p. 167): Moore underwent treatment for
leukemia at Regents. Doctor removed spleen, then used cells for research without telling Moore –
the research then earned the doctor(s) millions of dollars.
a. Cause of Action:
i. Breach of Fiduciary Duty (obligation to act in the best interest of another party)
ii. Conversion (action for damages that arises from wrongful interference with one’s
possessory ownership interests in personal property – strict liability tort)
b. Defendant’s Main Contention:
i. Abandoned (voluntary relinquishment with no intent to reclaim personal
property) property no longer belongs to the owner
c. Rules:
i. A physician has a fiduciary duty to disclose all material personal interests that
may influence their professional judgement before securing a patient’s informed
consent to medical treatment
ii. Once cells leave a patient’s body, they are no longer that patient’s property
d. TAKEAWAYS:
i. Established bodily substances as ‘tangible personal property’
ii. Moore did not receive a conversion due to the Lockean Labor Theory
1. The doctors developed the cell line + sold it – they were the ones who
put in the labor + even though the cells were originally from Moore, the
cell line was not his
First Possession (Discovery):

I. Johnson v. M’Intosh (p. 4): Native American case in which 2 individuals were claiming rights to
NA land – P claimed under 2 grants (1773, 1775) from the NA tribes, D claimed under patent
from the US Gov’t to begin inhabiting + occupying the land.
a. Cause of Action:
i. Ejectment (property action that has to do with evicting someone, action to
recover land (real property) that is in wrongful possession by someone else)
b. Issue:
i. Did the NA have (ownership title) the right to transfer or alienate for profit? Does
the P exhibit an ownership title which can be sustained in the courts of the US?
1. Who had title as ownership in 1773 – NA or British Crown? Who had
the best title in 1773?
c. Holding:
i. The Crown had title as ownership in 1773 – therefore, Johnson really got nothing
in 1773 when the NA transferred the land
d. Bifurcation of Title: title can be split between 2 parties simultaneously in different ways
i. NA in 1773 – had possessory title (they were occupying the land)
ii. British Crown in 1772 – had ownership title
e. Doctrine of Discovery:
i. General Definition: the sovereign nation that is the first to discover (to sight)
terra nullius (a land of no one) will become the owner of it so long as that nation
makes an effective occupation within a reasonable amount of time
 1. Effective Occupation: improved the land, put labor into it in order to
increase economic gain; wild to domesticated, in a way that is socially
beneficial
2. Terra Nullius in this instance: means a land of no Christian people
ii. Specific Application regarding the discovery of America: since it was already
owned by the crown, we won the revolutionary war, so that ownership transfers
to us; European nation to make an effective occupation got the exclusive right to
conquer the original inhabitants or buy land from them
f. Why did Johnson lose?
i. It is less about law, + more about custom in this situation

First Possession (Capture):

I. Pierson v. Post (p. 19): Post was pursuing a fox with his hound on a beach + Pierson killed the
fox (with the awareness that Post was in pursuit of it); Pierson then claims the fox is his
a. Cause of Action:
i. Trespass on the Case: historic English common law action for damages that were
the result of injury done to property, as opposed to injury to the person; an early
form of tort
b. Issue + Holding:
i. Does the hot pursuit of a wild animal give the individual the right to ownership
by pursuing that animal? If I am in hot pursuit of something held in the commons
does that become something held in private?
1. No – this is not sufficient to gain ownership
c. How do you become a captor + owner of a common resource?
i. Mortal wounding – because it is depriving the animal of its natural liberties
making escaping impossible
ii. Unequivocal intention of appropriating the animal to his individual use
iii. Bring wild animal within certain control (defined by context)
iv. **Accidental capture is not capture
d. Takeaways:
i. American property law is built around incentivizing private ownership
ii. Court is concerned with creating a clear rule of what capture is here
1. This really is not that clear, therefore it disincentivizes
iii. America cares because they don’t want to disincentivize people to hunt
1. Could either disincentivize people to hunt, or it could incentivize them to
become better hunters
II. Ghen v. Rich (p. 27): Whale case where the shooter lost the whale + the defendant purchased it
from the finder
a. Cause of Action:
i. Recovery of the value of the whale
b. Issue:
i. Does a person establish a property right over whales when he takes possession of
the carcass + takes practical steps to secure it, in accordance with local custom?
c. Holding:
 i. Yes. Plaintiff won on custom + successfully satisfied the rule of capture when he
shot the whale
III. Keeble v. Hickeringill (p. 35): Decoy pond case where neighbor shot his gun + scared away the
wildfowl
a. Cause of Action:
i. Damages for the disturbances
b. Issue + Holding:
i. Does a remedy exist for a property owner whose use of his property for profit is
frustrated by the malicious act of another?
1. Yes – property holder making lawful use of his land is free to do so
without interference from others
2. If you are engaging in lawful trade + someone tries to shut you down out
of spite, then there is malicious interference with trade
IV. Popov v. Hayashi (p. 46): baseball case where two guys had a claim to the ball because one
caught it + fell to the ground, dropping the ball, + the other guy recaptured after it became loose
a. Cause of Action:
i. Plaintiff (original catcher) brought a suit against defendant for ownership of the
ball (last catcher)
b. Issue + Holding:
i. Is a person entitled to an interest in a piece of property if they achieve significant
steps towards possessing said property, but are thwarted due to the unlawful
conduct of another?
1. Yes – they each have an equal, undivided interest in the ball
2. Popov – had pre-possessory rights (because he had completed a
significant portion of the steps to achieve possession of an item)

Secondary Acquisition:
SP (Find): 1 of the 3 ways in which one can possess property already owned by someone else (other than
by sale or devise)

I. Characterizing Property that is Found:

a. Lost: true owner has superior ownership
b. Mislaid: true owner has superior ownership
c. Abandoned: true owner is no longer true owner
II. Where was the Property Found:
a. Public
b. Private
I. Armory v. Delamirie (p. 54): lost property on public land; chimney sweep finds a jewel + takes it
to jeweler to have it appraised, jeweler takes the jewel + returns socket to boy, boy sues for the
jeweler keeping it
a. Conceptualizing the Relationships:
i. Original Owner: (assuming the jewel is lost) - this is the true owner; they are an
involuntary bailor (bailor: one who gives possession of personal property to
another for its care or safekeeping) - primary bailment
ii. Chimney Sweep: voluntary bailor – secondary bailment
 iii. Jeweler: voluntary bailee (bailee: someone to whom a bailor gives possession of
personal property under the terms of an express or implied agreement, including
that the property must eventually be returned); in this case, can also be described
as a wrongful bailee
b. Cause of Action:
i. Trover: legal action to recover chattel unlawfully appropriated by another, or its
value at the time of its appropriation
1. Today – this is known as conversion
2. Replevin, in contrast, is if you want the property back, rather than
damages
c. Issue:
i. Does a finder of lost property gain enough of a property right in the thing that is
found to prevail with a cause of action for trover?
d. Holding:
i. Finder of lost personal property has better title against the whole world, except
the true owner + except the possibility of a first finder (unless they abandoned it)
e. Policies behind this Holding:
i. You want to have a rule designed to effectuate the return of the chattel to its true
owner – the rule satisfies this because it incentivizes finders to bring forward
what they found or, at least, be open about what they found so that the true owner
could potentially be on notice
1. First finder has better title than other finders because you don’t want the
chain of finders to continue to grow because then there is more
separation between the true owner + the finder
ii. Protects the possession of the finder – if this isn’t done, there will be an endless
cycle of trespasses + thefts
iii. Awards the first in time principle
II. Hannah v. Peel (p. 57): lost property on private land; the plaintiff, a soldier, was living in a
house owned by the defendant + found a broach in the house; he reports it to the 1 st officer, who
gives it to the owner of the property, with the assumption he would advertise it, but he instead
keeps it
a. Cause of Action:
i. Property dispute between finder of broach + owner of the property on which it
was found
b. Issue:
i. Who has the best control over the chattel?
c. Holding + Reasoning:
i. In favor of the plaintiff because:
1. The broach was considered lost property
2. It is unattached from the property (reference Bridges v. Hawkesworth)
3. Property owner lacked knowledge that the broach was even on the
property
4. Property owner was never in possession + therefore never in control
III. McAvoy v. Medina (p. 63): mislaid property on private land; plaintiff found pocketbook laying
on a table, turned it into the shop owner, but the shop owner never found the true owner
 a. Rule of Law:
i. Finder of lose chattel on private land has no right superior to the property
owner’s rights (in this case – the true owner meant to put in the shop, so they are
likely to return there searching for it)

Lost Mislaid Abandoned

Private Hannah (depends on McAvoy (owner of It depends
criteria of the case) locus in quo - scene of
the event)
Public Armory (first finder) No common law First Finder
dealing with this
SP (Adverse Possession):

I. Layman’s Definition: theft or trespass that, through the process of time, may eventually ripen
into title
II. Legal Definition: involuntary transfer of title from the original owner to the adverse possessor
assuming the adverse possessor satisfies all the elements of adverse possession in the respective
jurisdiction
III. Rationales behind AP:
a. Punishment to landowners who neglect their rights for a long enough period that shows
you aren’t using the resource effectively or at all
b. Reward someone who is using the property in an efficient way – improving upon land in
which true owners are doing nothing with
c. To protect 3rd parties who have relied on the appearance of ownership (this is related to
Color of Title)
IV. Elements Overview: all need to line up simultaneously
a. Time begins when the adverse possessor is there adversely + openly (it must be possible
for them to be noticed)
b. Adverse possessor has the burden of proving the adverse possession by a clear +
convincing by a preponderance of the evidence
c. If the adverse possessor satisfied all the elements of adverse possession, they receive a
new title by operation of law regardless if they bring a cause of action to title
i. Scope of the title is only as good as what the old owner had (you get the property
as is)
1. Therefore, it does not get rid of encumbrances or easements
2. This is also based on the moment when adverse possession was made
d. Quiet Title Action (can be a separate action or a defense): proceeding in which the
plaintiff seeks to establish title to real property by forcing an adverse possessor to prove
ownership of the property or forever cease from asserting it
V. Elements of Adverse Possession:
a. Actual entry giving exclusive possession:
i. Actual Entry:
1. Rule: if the adverse possessor is adversely possessing under a claim of
right as opposed to a color of title, then they only get what they are
actually occupying
a. Claim of Right: claim that someone in adverse possession of
land intends to claim the land as her own
 i. This is the case most of the time when dealing with
adverse possession
ii. Must look at the statute in each jurisdiction to know
what “actually occupy” means
b. Color of Title: condition in which a possessor of land has a
document that purports to give title to the property but that for
some reason is ineffective to do so
ii. Exclusive Possession:
1. Must be the only person occupying the land
2. If an individual satisfies all elements of adverse possession, but only has
exclusive possession of one piece of the land – they are an adverse
possessor
b. Entry must be adverse (or hostile or under a claim of right)
i. Adverse Entry: the entry onto the land was non-permissive + intentional
1. The more persuasive party is important in an adverse possession claim
ii. Adversity + State of Mind of the Adverse Possessor:
1. There could be situations where the adverse possessor is innocent
(received a deed that is fake)
a. Some jurisdictions fall into this
2. There are also knowing trespassers (trespasser was intentional, + not
innocent)
a. Few jurisdictions fall into this because it seems as though it is
rewarding trespass
3. There are also circumstances where it does not matter what the adverse
possessor was thinking
a. Most jurisdictions fall into this because adverse possession is not
about thoughts, but actions
iii. Adversity + Color of Title:
1. Color of Title:
a. Someone has a document (deed or will) that states the person can
go into possession, but it is defective
i. This could happen because the person who sold it did
not have the property to sell (or they forged it) OR it was
not properly executive
ii. The person who was given the title must have a good
faith belief in it being valid
2. CoT Rule 1:
a. If you are adversely possessing under color of title, you
automatically satisfy the adversity requirement
3. CoT Rule 2:
a. Actual occupation of what the deed describes as the end of the
statutory period, assuming the adverse possessor can satisfy
everything else, gives the adverse possessor constructive
possession of everything
b. Exceptions to this rule:
 i. If, relative to everything that is described in the deed, the
adverse possessor actually occupies a small portion of it,
then constructive adverse possession may not be
applicable
c. Entry must be open + notorious
i. The owner needs to have constructive notice, but not actual notice
ii. This is met if the entry is capable of being observed
iii. Exception to this (Mannillo):
1. If it is a minor boundary dispute, then the defendant wants to claim
adverse possession, constructive notice is not sufficient + there must be
actual notice
2. Exceptions to the exception:
a. If the adverse possessor cannot show actual notice
b. If the adverse possessor was mistaken
c. If only a small portion of land was involved
d. If it would cause the adverse possessor a great expense to undo
the improvements
d. Entry must be continuous for the statutory period required
i. This varies depending on jurisdiction
e. Taxes
i. Some jurisdictions require the adverse possessor to pay taxes at the end of the
statutory period
f. Disability of True Owner Exception to Statutory Period Requirement:
i. A person has 5 additional years, from the time their disability is removed, to
bring a cause of action against an adverse possessor if the person is one of the
following at the time the statutory period requirement ends:
1. A minor
2. Of unsound mind
3. Imprisoned

VI. Van Valkenburgh v. Lutz (p. 76): plaintiffs moved into land that defendants had been using (but
didn’t own) for farming + housing his disabled brother
a. Cause(s) of Action + Procedural History:
i. Lutz brings a cause of action against Van Valkenburgh for easement - specific
legal right to pass through or otherwise access real property belonging to
another person
1. Claims he had a prescriptive right to be on the land (seems like adverse
possess, but lacks title)
2. Claims he gained this right by using the path + garden openly + for a
statutory period
ii. One year later, Van Valkenburgh brings a cause of action suing Lutz stating
Lutz’s structures are infringing on their land
 1. Claims that the scope of the right does not include the Lutz brother’s
house + probably does not include the garden or farming structures not
included in the path (using land beyond the scope of easement)
a. Lutz Argument here:
i. States he has title of ownership because he is an adverse
possessor
b. Burden of Proof: to acquire title to real property by adverse possession not founded
upon a written instrument, it must be shown by clear + convincing proof that for at least
15 years there was an actual occupation under a claim of title, for it is only the premises
so actually occupied + no others that are deemed to have been held adversely
c. Holding + Reasoning:
i. Lutz was not an adverse possessor because he was not cultivating or improving
the land
ii. Also – Lutz had previously brought an action that solely mentioned an easement,
+ not adverse possession
d. Dissent:
i. If the adverse possessor satisfies the elements of adverse possession, by operation
of law – title vests in him in a symbolic sense
ii. Lutz made an adverse entry in 1920
VII. Mannillo v. Gorski (p. 89): minor boundary infringements
a. Issue:
i. Whether or not the state of mind of the adverse possessor matters at the time of
entry
b. Holding:
i. If you cannot show actual knowledge in a case where it is a minor infringement +
the adverse possessor was an innocent trespasser + it would be costly for the
adverse possessor to remove it, the law protects the adverse possessor, + the
adverse possessor gets title, but the original owner gets compensated
VIII. Howard v. Kunto (p. 95): case where 3 homeowners had the wrong title to land
a. Issues:
i. Can the defendants satisfy the continuity requirement of adverse possession if
they + their predecessors of interest only occupy the house during the summer?
ii. Can the defendants satisfy the statutory period requirement? (10 years)
b. Holding + Reasoning:
i. Seasonal occupancy will satisfy so long as the average owner does the same (+
in this case, most homeowners only used the homes for vacation)
ii. Privity of Estate: successive or concurrent interest in the same property, such
as between landlord + tenant or grantor + grantee
1. Must be a voluntary transfer of an interest in land from A to B
2. If they are in privity, the statutory requirement is satisfied (because
previous owners can be added on to meet the requirement)
SP (Gift): voluntary transfer of property from A to B without compensation (without consideration –
which is what distinguishes gift from contract)

I. Gift v. Commodities + Hybrid Regimes:

 a. The law conceptualizes gifts as things that happen outside of market transactions
b. There is a hybrid way of thinking about this: for things that partially look like a gift +
partially look like a market transaction
i. Examples: egg + sperm donations (because people are compensated for these
things)
II. Gifts Inter Vivos: voluntary transfer of personal property between living people, without
consideration
a. Elements:
i. Intent
1. Oral or circumstantial evidence (circumstantial would be like a birthday
gift + the fact that it is wrapped)
ii. Delivery
1. If it’s delivered – this is often proof of intent
iii. Acceptance
1. If there is not outright rejection – courts assume acceptance
iv. Without Consideration
1. This is the burden of the donee to prove
b. Consequences of Satisfying the Elements:
i. Once all the elements are satisfied, you cannot take the gift back
c. Donee in Possession before Intent:
i. The delivery may come before the intent to give (this would be a bailment:
relationship by which possession + control of property is temporarily delivered
to another for safekeeping)
ii. This is acceptable + possible with a gift inter vivos
d. Donee out of Possession:
i. Rule: manual delivery is required for there to be a valid gift; therefore, handing
over the thing is proof of intent
ii. Exception to the Rule: Constructive or symbolic delivery is allowed if manual
delivery is impractical or impossible
1. Constructive: handing over something to the donee that will allow them
to access the chattel – all jurisdictions accept this
a. Ex: Giving someone keys to a vehicle
2. Symbolic: handing over something that is symbolic of the gift – not all
jurisdictions accept this
a. Ex: Giving someone a piece of paper or an IOU for a car)
e. Donee Delayed Possession: gave someone something today, but they cannot possess it
until tomorrow
III. Gifts Causa Mortis: voluntary transfer of personal property, also between living, but the donor is
giving the gift to donee because of imminent death
a. Elements:
i. Intent
ii. Delivery
iii. Acceptance
iv. Without Consideration
 v. Precipitated by a Fear of Imminent Death (this is what distinguishes it from gift
inter vivos)
vi. Some jurisdictions prefer for this to be in writing
b. Consequences of Satisfying the Elements:
i. Gift is irrevocable if + when the donor dies
1. However, it can be revoked any time before the donor’s death
2. If the donor does not die – jurisdictions are split:
a. Some say it is automatically revoked if the donor does not die
(remember: death must be imminent)
b. Some say it is not automatically revoked, but if the donor wants
to revoke, they are able to do so (this seems as though it is a
transfer from gift causa mortis to gift inter vivos)
ii. Gift causa mortis almost always trumps a will
c. Donee in Possession before Intent:
i. Cannot necessarily be done with this type of gift; there must be a re-delivery of
the chattel here
d. Donee out of Possession:
i. Manual delivery of the thing is required
1. However, if this is impractical or impossible, symbolic + constructive
delivery is permitted
IV. Newman v. Bost (p. 116): gifts causa mortis; The plaintiff was a housekeeper for a man who died
intestate, with allegations that he planned to marry her. While the plaintiff + his nurse were in
his room, he tells the plaintiff he wants her to have everything in the house. He gives her the keys
to the house + then dies. Probate court assigns the defendant to complete an inventory, pay
creditors, estate taxes, + allow eligible heirs to take their share of the estate.
a. Plaintiff’s Claim:
i. Arguing gift causa mortis for:
1. $3,000 life insurance policy, that was in the bureau in the man’s room
2. Value of all the furniture in the house
ii. Arguing gift inter vivos for:
1. Value of all the furniture in her room (man had delivered prior to her
death + there was evidence he intended to give this to her as a GIV)
2. Value of piano (man had always called it hers, but it burned down + he
collected $45 from insurance)
b. Court’s Determination:
i. Insurance Policy: awarded to defendant
1. Constructive delivery is not allowed, because it was capable of being
handed over
2. Intent is unclear because he was mixing business with a domestic piece
of furniture
ii. Value of all Furniture: some but not all awarded to plaintiff
1. Constructive delivery is okay, but just for the furniture that was
accessible
2. No symbolic delivery because it is not allowed in NC
iii. Value of Furniture in Plaintiff’s Room: awarded to plaintiff as GIV
 1. Delivery is less important when intent is clear
2. She had entire use + control of the furniture (control as a basis for a
property right)
iv. Value of Piano: remanded, because they did not have enough information
V. Gruen v. Gruen (p. 123): gifts inter vivos; donee delayed possession; a father bought a painting
in 1959 + gifted it to his son in 1963. However, the father wants to keep the painting with him as
long as he’s alive + tells the son he can have it when he dies. The father writes him a letter
stating this but dies intestate with respect to the painting – since it had previously been gifted.
The stepmother does not want to give the son the painting.
a. Son’s Argument:
i. He is entitled to 100% of the painting because when the father made the gift, he
got a future interest.
ii. Father has a life estate over the painting, + conveyance of it to himself for life,
then to his son for eternity
b. Stepmother’s Argument:
i. Husband never made a valid gift to the stepson while he was alive + he died
intestate with respect to the painting
ii. Arguing that the stepson was never in possession, so he had no title. There was
also no delivery, which means no possession
iii. Stepson cannot show donor intent because he had no present intent to give it to
him when writing the letter.
c. If Stepmother’s Argument wins:
i. The stepmother + son will split it 50/50 as qualifying heirs, assuming they are the
only heirs
d. Court’s Determination:
i. There was a transfer of interest in 1963 – transferred future interest, which is a
right that you get now to become possessory later
ii. The gift given: future interest in the painting
iii. Bifurcates Title: father had present possession; son had ownership as a future
interest in fee simple absolute
iv. Delivery: was impractical because the father was going to have it for a lifetime;
there was symbolic delivery in the letter
v. Acceptance: this was presumed, as he had shown the letter to people

SP (Slavery):
I. Dred Scott v. Sandford (Canvas): Plaintiff was a slave living in MO (MO entered the union as a
slave state as part of the MO compromise); The plaintiff’s master took him + his family into free
territory in IL + WI, then back to MO. The plaintiff’s master dies intestate + defendant was
assigned to administer the estate. This has since been overruled by the Reconstruction
Amendments.
a. Plaintiff’s Claim + Procedural History:
i. Sues in state court, claiming he is not part of his master’s probated estate because
they touched free territory before the master died + therefore had become free
1. **Many courts did recognize once free, always free
2. Plaintiff loses in state court
 ii. Sues in federal court through diversity jurisdiction (Defendant in NY, Plaintiff in
MO)
b. Issue:
i. Can a negro, whose ancestors were imported into this country + sold as slaves,
become a member of the political community formed + brought into existence by
the Constitution of the US + as such become entitled to all the rights, privileges,
+ immunities guaranteed by that instrument of the citizen?
1. Is he a citizen + can he sue as a citizen?
c. Holding + Reasoning:
i. Plaintiff’s case is rejected on standing grounds (he has no standing to bring a
case in federal court)
1. He is not a federal citizen; ‘citizen’ in the Constitution means federal, no
state
a. No African American living the US was a federal citizen
ii. MO compromise is unconstitutional because Congress did not have the power to
pass it
1. They are stating he still would have lost even if the court had jurisdiction
iii. Originalism is behind both holdings: slaves were not intended to be included in
the constitution

Estates in Land + Future Interests:

Estates in Land (Intro, Fee Simple, + Fee Tail):

I. Fee Simple Absolute: maximum ownership interest in land (property) that one can have; present
possessory estate in real property
a. How to Create at Common Law:
i. Examples:
1. O to A + her heirs: A has present possession of an FSA
a. Words of Purchase: refers to who is getting the interest (person
that follows the word ‘to’
b. Words of Limitation: have to use ‘+ her heirs’ because if not,
something less than an FSA is created
c. Heirs: much broader category; a person who stands to inherit
from the estate of an intestate decedent
d. Issue: narrower category; biological descendants of the
decedent
2. O to B + her heirs: B has present possession of an FSA
3. O to A: A has something less than an FSA
b. How to Create Today:
i. Examples:
1. O to A + her heirs: A has present possession of an FSA
a. This is the same as at common law
2. O to A: A has present possession of an FSA
a. This is acceptable today, but most still use ‘+ her heirs’
c. Rights Associated with an FSA:
 i. Right to Use
ii. Right to Possess
iii. Right to Exclude
iv. Right to Alienate
II. Fee Tail: an estate in land or an interest in land that descends automatically to one’s issue when
they die + will continue descending until the bloodline runs out
a. How to Create:
i. Examples:
1. O to A + the heirs of his body: A has present possession in a fee tail, O
has the possibility of a reverter
a. Words of purchase: indicate who is getting the fee tail
b. Words of limitation: convey what the grantee is receiving – a fee
tail
c. If you added “then to O,” it would not change the state of the
title, but it is not necessary to add
2. O to A + the heirs of his body, then to B: A has present possession in a
fee tail, B has a future interest in an FSA
b. How to Destroy (Disentail): transforms a fee tail to a fee simple absolute
i. A, the fee tail tenant, sells to B: B has a fee simple absolute
1. You cannot devise a fee tail when you die, it automatically becomes in
effect
ii. A “sells” to C, a strawman; C conveys to A; A devises to B
c. Rights Associated with a Fee Tail:
i. Tenant in fee tail: does not have a future interest
ii. Tenant in fee tail’s issue: nothing

Life Estate: estate in land that lasts as long as the life of the life tenant or some other life; interest in real
property that is held only for the life of the holder, in which the holder possesses no future interest
beyond her lifetime

I. Examples:
a. O to A for life: A has a life estate, as long as they are live
b. O to A for the life of B: A has a life estate as long as B is alive (life estate pur autre vie:
for the life of another)
II. Always creates a future interest; everyone you are creating a future interest in must be alive when
the transfer becomes effective
III. How to Create:
a. Examples:
i. O to A for life: A has a life estate; O has a future interest in an FSA
1. Words of purchase: who is getting the life estate
2. Words of limitation: for life
ii. O to A for life. A transfers to B while A is alive: B has a life estate for the life of
A; if B predeceases A – B's devisee or heir has a life estate for the duration of
A’s life
IV. Rights Associated with Life Estate:
a. Right to use so long as the measuring life is alive
 b. Right to possess so long as the measuring life is alive
c. Right to exclude 3rd parties so long as the measuring life is alive
d. Limited Alienation rights:
i. Cannot sell or devise if the duration is for your own life
ii. Can devise if B has a life estate for the life of A
V. White v. Brown (p. 266): this is a lawsuit between the beneficiary of the decedents will + the
decedents qualifying heirs
a. Words in the Will:
i. I, Jessie Lide, being in sound mind declare this to be my last will + testament. I
appoint my niece Sandra White Perry to be the executrix of my estate.
ii. I wish Evelyn White to have my home to live in + not to be sold.
iii. I also leave my personal property to Sandra White Perry. My house is not to be
sold.
b. Plaintiff’s Claim:
i. Claiming she had a fee simple absolute
c. Defendant’s Claim:
i. Plaintiff had a life estate because it could not be sold (because Evelyn had a life
estate + no indication of where reversion would go)
ii. Lide died intestate with respect to reversion
d. Court’s Decision:
i. If testator had a fee simple absolute, then where testator intent is unclear, a fee
simple absolute is presumed to be given
ii. Policy against restraints on alienation:
1. Inherit feature of a fee simple absolute is its absolute alienability
VI. Consecutive Owners + Waste:
a. Waste: in the context of real estate, the failure of a lessee or mortgagor to exercise
ordinary care in the use of the premises that causes material + permanent injury beyond
ordinary wear + tear
b. If 2 people have present possessory interest (or someone has future interest) + one is
messing up the property, the other can take legal action (waste action) against the life
estate holder
c. Examples:
i. O to A for life, then to B
1. If A is doing something that is diminishing the property, with B having a
future interest, B may bring a waste action against A
a. At this point, the court would say to stop doing whatever they
are doing that is diminishing the property, even if the conditions
have not been satisfied
d. Affirmative Waste: voluntary, willful actions that diminish the value of the property
i. Examples:
1. O devises Blackacre, an orchard, to A for life, then to B. A begins
chopping down trees – can B sue A for damages or an injunction?
a. Yes – on the grounds that A is doing something that voluntarily
+ affirmatively devalues the property
 2. O devises Blackacre to A for life, then to B. When A gets it, they realize
it can be used for mining + begins extracting.
a. B can probably sue for affirmative waste. It might be different
dependent on what the property was being used for when it was
devised to A.
e. Permissive Waste: the life estate holder’s neglect of the property – in a way that
diminishes the property value for everyone in the future (failure to take care of property)
i. Examples:
1. A is not paying taxes on the property.
a. B can bring an action for permissive waste
2. If an adverse possessor is on the property, + B finds out that A hasn’t
brought an ejectment action.
a. Future interest can be used for a permissive waste action.
f. Ameliorative Waste: brought by a future interest holder if life estate tenant is doing
something to enhance the property, but in a way that original owner did not intend for it
to be used
i. Example:
1. O devises Blackacre, an orchard, to A for life, then to B. A turns the
orchard into housing. O intended it to be used as an orchard in the future.
a. B can probably bring an ameliorative waste action.
ii. Least common of all 3 waste actions

Term of Years: what we understand today as a leasehold – a future interest always follows

I. How to Create:
a. Example:
i. O to A for 20 years
1. Words of Purchase: who the term of years is being given to
2. Words of Limitation: the amount of time – 20 years

Defeasible Estates: something that is capable of ending or being cut short if a particular event occurs,
most of the time in reference to fee simples; sometimes these events have to do with land, or behavioral
control (purposes of the land)

I. Fee Simple Determinable: fee simple (or life estate) that ends automatically if a stated event
occurs; always creates a future interest
a. Example:
i. O to A so long as the land is used for school purposes, then to O.
1. A has a fee simple determinable, O has a future interest in fee simple
absolute
b. Characteristics:
i. Language of Durational Limitation: the key to this kind of estate is language
of time; a comma won’t appear until after the language of duration
1. So long as
2. Until
3. While
4. During
 ii. Future Interests:
1. Future interests in Grantor:
a. O to A so long as the land is used for school purposes, then to O
i. Grantor has a future interest in fee simple absolute
ii. “Then to O” does not need to be there – it's understood if
it does not appear.
2. Future interests in Transferee:
a. O to A so long as the land is used for school purposes, then to B
i. “Then to B” makes this no longer a fee simple
determinable (because future interest is in a 3rd party +
not O)
iii. If stated event occurs, FSD ends automatically
II. Fee Simple Subject to Condition Subsequent: defeasible estate that may or may not end if a
stated event occurs, + one where the grantor retains future interest; always creates a future
interest in the grantor
a. Example:
i. O to A, but if the land is not used for school purposes, then to O
b. Characteristics:
i. Language of Express Condition: uses more explicit conditional language,
rather than temporal terms
ii. Future Interest: always in the grantor
iii. Outright Grant then Conditional Language:
1. Future interest in Grantor:
a. O to A, but if A stops using the land for library purposes, then to
O
i. A has a present possessory interest in fee simple subject
to condition subsequent
ii. O has a future interest in fee simple absolute
2. Future interest in Transferee:
a. O to A, but if A stops using the land for library purposes, then to
B
i. This is not a fee simple subject to condition subsequent
ii. A has a future interest in fee simple subject to an
executory limitation
iv. Does not end automatically if future interest is in grantor:
1. O to A, but if she goes to law school, back to O. A goes to law school 1
year later.
a. A has a present possessory interest in a fee simple subject to
condition subsequent, O has a future interest in a fee simple
absolute.
i. A cannot become an adverse possessor
b. If the grantor tells the person to get out or takes legal action, then
O has a present possessory interest in a fee simple absolute
i. If A stays, she is an adverse possessor, so now she could
gain a fee simple absolute
 v. Does end automatically if future interest is in transferee:
1. O to A, but if she goes to law school, then to B.
a. A has present possession in a fee simple subject to condition
subsequent. B has an executory interest in fee simple absolute.
vi. Distinction between a Fee Simple Determinable + Fee Simple Subject to
Condition Subsequent:
1. The end, or not, of them if the future interest is in the grantor

Future Interests + Limits on Them:

I. Definition + Rights of Future Interest Holder:

a. Future Interest: Presently existing property interest to become possessory at some time
in the future
II. Future Interest in Grantor (Transferor) (also known as Revisionary Interests): reversionary
interest – any future interest in a grantor
a. Reversion: a reversionary interest that follows the following kind of estates:
i. Life Estate
ii. Fee Tail
iii. Term of Years
iv. May follow a contingent remainder in another grantee
v. Examples:
1. O to A for life
a. A has a life estate, O has retained a future interest in themself
(reversion)
2. O to A + the heirs of her body
a. A has a fee tail, O has a reversion in fee simple absolute
3. O to A for 20 years
a. A has a possessory estate in term of years, O has a reversion in
fee simple absolute
4. O to A for life, then to B if she is married
a. A has a life estate, B has a contingent remainder in fee simple
absolute, O has a reversion in fee simple absolute
b. Possibility of Reverter: the future interest in a grantor that only follows a fee simple
determinable
i. Example:
1. O to A so long as used for school purposes, then to O
a. A has a possessory estate in fee simple determinable, O has a
possibility of reverter
ii. Compare:
1. O to A so long as used for school purposes, then to B
a. A has a possessory estate in fee simple subject to an executory
limitation, B has an executory interest in fee simple absolute
c. Right of Entry: reversionary interest that only ever follows a fee simple subject to
condition subsequent
i. Example:
1. O to A, but if A ceases to use for school purposes, then to O
 a. A has a possessory estate of a FSSCS, O has a right of entry in
fee simple absolute
ii. Compare:
1. O to A, but if A ceases to use for school purposes, then to B
a. A has a possessory estate in fee simple subject to an executory
limitation, B has an executory interest in fee simple absolute
III. Future Interests in Grantee (Transferee): future interest in someone other than the grantor
a. Vested Remainder: future interest in a transferee that is both given to an ascertained
person + cannot be subject to a condition precedent (adjective not noun)
i. Examples re: ascertained person(s): somebody who is born + identified
1. O to A for life, then to Professor Cahill
2. O to A for life, then to Cahill’s daughter (at time of conveyance, Cahill
has no children)
a. A has a life estate, Cahill’s daughter has a contingent remainder
in FSA, O has a reversion in FSA
3. O to A for life, then to the oldest Property professor at RW Law School
a. Interpretation 1: That O intends for it to go to whoever, right
now, is the oldest law school professor (October 12th) - then it is
ascertained
b. Interpretation 2: That O intends for it to go to whoever is the
oldest when A dies – then it is not ascertained
ii. Examples re: no condition precedent: condition that must be satisfied before
the future interest becomes vested
1. O to A for life, then to Professor Cahill
b. Vested Remainders: 3 Kinds:
i. Indefeasibly vested remainder (vested remainder OK): vested interest that is
sure to become possessory at the end of the preceding estate
1. Example:
a. O to A for life, then to Professor Cahill
i. A has a present life estate, Cahill has an indefeasibly
vested remainder in a FSA
ii. Vested remainder subject to open: remainder to a class of people that is vested
in at least one person – at least one person of the class is ascertained + in
addition, there are no conditions precedent
1. Example:
a. O to A for life, then to A’s children (at time of conveyance, A
has one child – B)
i. A has a life estate, B has a vested remainder subject to
open because B is the only child right now, but A could
have more children
b. Same as above, but at the time of conveyance A has no children
i. When A has a child, contingent remainder becomes a
vested remainder
 iii. Vested remainder subject to divestment: a vested remainder that could be
divested before it becomes possessory (could lose because of some facts stated
that are violated)
1. Example:
a. O to A for life, then to B, but if B goes to law school, then to O
i. O must exercise right of entry if B does + A is not alive
b. O to A for life, then to B, but if B goes to law school, then to C
c. Contingent Remainder: a remainder that is either given to an unascertained person or
subject to a condition precedent
i. Examples re: unascertained person(s)
1. O to A for life, then to A’s children (at the time of the conveyance, A has
no children)
2. O to A for life, then to the U.S. President
3. O to A for life, then to A’s grandchildren (at the time of conveyance, A
has no children or grandchildren)
ii. Examples re: condition precedent
1. O to A for life, then to A’s children if they survive her (at the time of
conveyance, A has no children)
2. O to A for life, then to A’s children if they survive her (at the time of
conveyance, A has one child – B)
3. O to A for life, then to B if B has graduated from law school
iii. Alternative Contingent Remainders
1. Example:
a. O to A for life, then to B if B has graduated from law school, but
if B has not graduated from law school then to C
i. A has a life estate, B has contingent remainder in FSA,
C has contingent remainder in FSA
iv. Remainder: reversion in grantor will typically follow if grantor retains interest
1. Example:
a. O to A for life, then to B if B has graduated from law school
i. O has reversion
d. Executory Interests: a future interest in a grantee that divests (more active than a
remainder), divested interest in a future transferee
i. Shifting Executory Interest:
1. Example:
a. O to A for life, then to B, but if B marries a law professor, then
to C
i. A has a life estate, B has a vested remainder subject to
divestment in a FSSEL, C has a shifting executory
interest in FSA
ii. Springing Executory Interest:
1. Example:
a. O to A for life, then to B five years after A’s death
 i. A has a life estate, O has a reversion in fee simple
subject to executory limitation, B has a springing
executory interest in fee simple absolute
b. O to A when she turns 20 (at time of conveyance, A is 8)
i. O has possession of a fee simple subject to executory
limitation. A has an executory interest in fee simple
absolute
IV. Rules Limiting Future Interests:
a. Rules Against Perpetuities: common law rule that developed over time to make it
harder to have certain kind of future interests just waiting to see what will happen to
them
i. What does the Rule mean?
1. Certain future interests are void the moment they are created if there is
any possibility of them either vesting or failing to vest beyond 21 years
after the death of a life in being
ii. Analysis:
1. Identify all lives in being
2. Find a validating life: life that proves that the contingent interest will vest
or fail within the life of that person or 21 years of their death
iii. Future Interests Affected by the Rule:
1. Contingent Remainders
2. Executory interest
3. Vested Remainders Subject to Open
iv. Future Interests Not Affected by the Rule:
1. Indefeasibly Vested Remainders
2. Vested Subject to Divestment
3. Every Future Interest in a Grantor
v. Example:
1. O to A for life, then to A’s first child to reach 30. A has no children at
the time of conveyance
a. A has a life estate. A’s first child has a contingent remainder in
FSA. O has a reversion in FSA
i. RAP analysis:
1. ID the life in being: O + A
vi. What happens if Future Interest violates Rules Against Perpetuities?
vii. The Fertile Octogenarian:
1. Example:
a. O to A for life, then to A’s children who reach 30. At the time of
conveyance, A, age 70, has 2 children – B + C, who are 32 + 30,
respectively
viii. The Unborn Widow:
1. Example:
a. O to A for life, then to A’s widow. A is currently married to B

Concurrently Held Property:

Concurrent Ownership:

I. 4 Types of Concurrent Interests:

a. Tenancy in Common: most alienable, low protection; form of concurrent ownership
where each co-tenant owns their individual share + has a right to possess, under the
common law, the entirety of it
i. Example:
1. A + B take title to Blackacre as tenants in common with equal shares.
a. A owns 50%, B owns 50%, but they each have the right to
possess to entirety, without contractual language that states
otherwise
b. A + B have a possessory estate in FSA of Blackacre, as tenants
in common, with equal shares
ii. How to Create: (it’s the default unless otherwise specified)
1.
iii. Possession
1. Right to possess the entirety of it, unless otherwise stated
iv. Alienation
1. Fully alienable in every way that property can be alienable
v. Partition (judicial proceeding; court must ultimately approve)
1. Partition in Kind (favored)
a. Divides property into parcels
2. Partition by (judicial) sale via auction (disfavored), only if:
a. In kind impractical +
b. Sale better serves interests, economic + non-economic, of all the
parties involved
b. Joint Tenancy with a Right of Survivorship: form of concurrent ownership where each
co-tenant simultaneously owns their fractional share, as well as the entirety of it; can
destroy survivorship rights while you are alive, but not upon death
i. Example:
1. A + B buy blackacre as JTROS
a. If this is clear on title, they have a possessory estate in FSA as
JTROS (must be 50% share)
ii. How to Create: not the default, in most states the instrument that creates this
must be clear to create co-ownership
1. Must include the language “as joint tenants with a right of survivorship”
2. Must have 4 unities
a. Interest in JT must vest at the same time (Time)
i. How can you preserve unity in time?
1. Convey to a 3rd party, then 3rd party conveys to
two parties (strawman transaction)
b. Interest in JT must take place under the same instrument (Title)
c. Interest in JT must be identical + of the same duration (Interest)
i. Identical: must each have equal parts of the property
ii. Duration: must each have property for the same amount
of time
 d. Must be a right to possess the entirety of it under the common
law (Possession)
iii. Possession
1. Unity of possession has to be intact
iv. Alienation
1. Each person’s share is fully alienable while they are alive, but not at
death
v. Partition
1. Action in court that is available to cotenants of a tenancy in common +
joint tenants with a right of survivorship
2. Equitable cause of action where co tenants go to court + ask for
dissolution of the property
3. In Kind: A + B have present possession of blackacre as joint tenants with
a right of survivorship. If either brings a partition action, the court
dissolves the co=ownership + divides the parcel into two parts
4. By Sale
vi. Severance: severing the joint tenancy, destroying the right of survivorship,
turning it into a tenancy in common
1. Inter Vivos Conveyance to 3rd Party
a. O conveys Blackacre to A + B + joint tenancy with right of
survivorship. The next day, A sells her share to C, OR A gifts
her share to C.
i. B + C have a tenancy in common
b. O conveys Blackacre to A, B, + C as joint tenants with right of
survivorship. The next day, A conveys her share to D.
i. Terminates joint tenancy between D, B, + C, but B + C
still have a joint tenancy
2. Conveyance to Self
a. Doesn’t change much
3. Seizure by Creditor:
a. O conveys Blackacre to A, B, + C as JT w/ ROS (equal shares).
A’s creditor, D seizes A’s interest to satisfy a debt while A is
alive
i. D has a tenancy in common with B + C, C + B have a JT
w/ ROS (still 1/3 shares)
ii. Seizure affects severance
b. O conveys Blackacre to A, B, + C as JT w/ ROS. A’s creditor, D
places a lien on the property (right to seize). A dies before
paying debt.
i. B + C have JT w/ ROS
ii. Will not affect a severance
4. Mortgaging of One’s Interest in:
a. Harms v. Sprague
5. Conveyance of Lease, Life Estate:
a. Trend today is to find no severance in either of these
 c. Tenancy by the Entirety: cannot alienate interest to a 3rd party while you are alive +
destroy it; form of co-ownership only available to two married people where each spouse
simultaneously owns the whole
i. How to Create (5 Unities):
1. All required for JT
2. Marriage
ii. Rebuttable presumption that a conveyance to spouses creates TE, in
jurisdictions that recognize TE
1. Gives married couple most protection over the property
iii. Not universal in common law states; not recognized in any community
property state
1. There are 10 states that do not recognize TE
iv. Possession:
1. Spouses who own TE have the right to possess the entirety of it
v. Alienation:
1. No inter vivos alienation with TE – because they do not have fractional
shares
vi. Partition:
1. One spouse alone cannot bring a partition action
vii. Divorce:
1. Terminates TE
d. Problems on 390:
i. Two possibilities of title:
1. A, B, + C have present possession of a FSA as JTROS OR A, B, + C
have present possession of a FSA as tenants in common
a. B + C have JT with each other, + D is a tenant in common with
them
b. D + C have a tenancy in common (c has 2/3, D has 1/3)
2. A + B have a joint LE with a contingent remainder in the survivor
3. A + B either have a fee simple absolute as JTROS or FSA as TC
a. Partition action is fine because there was no TE
e. Marital/Community Property:
II. Tenancy in Common > Joint Tenancy with a Right of Survivorship > Tenancy by the
Entirety is a movement toward more protection of the property but less alienability of the
property
a. Example:
i. Tenancy in Common: high alienability, low protection
ii. Joint Tenancy with a Right of Survivorship: medium alienability, medium
protection
iii. Tenancy by the Entirety: low alienability, high protection
III. Why Concurrent Ownership?
a. No Choice
i. Example:
1. O devises Blackacre to A + B jointly
2. A + B sole heirs of O, who dies intestate
 3. Purchase of property by a married couple in a community property state
4. Treatment of marital property in all states at the time of divorce
b. Efficiency: cotenants share responsibilities + risks; co-tenants share taxes, mortgage
payments, etc.
IV. Why Not Concurrent Ownership?
a. Collective Action Problems (If too many owners with fractional shares)
b. Reliance Issues: easy alienability of a tenant’s interest in JTROS makes this form of
co-ownership unreliable + unpredictable
c. Marriage – you may not want to be co-owners in everything that you own
V. Riddle v. Harmon (p. 392): conveyance to self
a. Holding:
i. This is a permissible conveyance
ii. No strawman transaction is necessary – important to note that this is not the case
in several states, this is just California
VI. Harms v. Sprague (p. 398): mortgaging of one’s interest in; two brothers who hold property
(farm). While alive, John mortgages his share, so that his friend Charles can buy property (+ get
a loan). John dies + devises all his property to Charles
a. Charles's Argument:
i. I own half the property as tenancy in common
b. Wiliam’s Argument:
i. JT w/ ROS is still alive (he is the sole owner)
ii. Takes the property free of the mortgage that John created
c. Holding:
i. William gets 100% of the property, free of the mortgage
ii. IL is a lien state, not a title state
1. Therefore, when John mortgaged his half, it did not affect the severance
2. He gets what he had at the inception of the JTROS
VII. Delfino v. Vealencis (p 406)

Marital Property:

How Property is Held + Divided During Marriage, at Death, + at Divorce

**Whether property is characterized as community or common law property depends on
domicile of spouses (primarily legal residence) when it was acquired (+ its designation won’t
change unless parties jointly agree)
Common Law Jurisdiction Community Property
Jurisdiction
During Can hold separately; 50/50 if acquired during
Each spouse can manage 100%,
Separate > JT w/ ROS or TE or but both spouses must consent to
TC real estate transactions
Separate creditors can reach
100%
Each spouse is a fiduciary of the
other
TE NOT recognized; JT + TC
are (partition available to JT +
 TC but not community)
In some states (CA) one spouse
can sue the other for
mismanagement
No duty of support (don’t need
it)
Death Devise: can devise your entire Devise: your ½ share only
share Intestacy: spouse eligible heir
Intestacy: spouse is an eligible NO elective share
heir
Elective share: 30% or 50% of
entire share
 May be limited to long-
term marriage
 Not all property subject
to elective share
 Can be barred (if
untimely)
 Can be waived (by valid
pre-nup)
Divorce Old rule: title Equal division OR
New rule: equitable distribution Equitable distribution (majority)
Is it even Property?

I. Educational Degrees (nowhere)

a. But see Michigan: reimbursement “alimony” for contributions
b. But see Florida + NY: can consider contributions to educational attainment when
dividing marital property, but not when considering what constitutes marital property
c. Arguments in Favor:
i. Contribution, only asset/short-term marriage (Graham)
ii. Alimony is subject to modification, property is not
d. Arguments Against:
i. Speculative, locks in because non-modifiable
II. Earning Capacity (same)
III. Goodwill in a Business/Reputational Value (depends):
a.
IV. Default Rule can be superseded via valid pre-nup (+ maybe even one made during the
marriage)
Is it Marital or is it Separate Property?

I. Majority Rule: only marital property goes in (same Common Law + Community Property
Jurisdictions)
II. Exception: Hotchpot states, which might put separate in at court’s discretion
III. Marital:
a. Earnings acquired during the marriage
b. Property acquired with marital earnings
c. Increases on separate property attributable to marital labor/earning (active increases)
 d. Future income based on marital labor (royalties, insurance commissions, contingency
fees)
e. 401K, pension (part received during the marriage)
i. Immediate pay-out (if relatively small)
ii. QDRO (if larger)
f. Separate property that has been “transmuted” into marital
IV. Separate:
a. Inheritances, devises, + gifts during
b. Property brought into the marriage
c. Property purchased during with separate earnings
d. Rents + profits from completely separate property
e. Increases in separate not attributable to either marital labor or earnings (passive
increases)
What is the value of the property? (dividing its value)
Divide the Property

I. Equal Division (3 states, right down the middle)

II. Equitable Distribution (everyone else)
a. Replaced old title rule in CL states
i. Title rule: you walk away with whatever you have title to during the marriage
ii. Historically, wives couldn’t have title to a whole lot, so they didn’t walk away
with much
iii. Therefore, under the old rule, the only way that wives could receive financial
support at divorce (if they didn’t own property) was through alimony
b. Developed alongside no-fault divorce (which made it easier to get out of a marriage so
equitable distribution provides some protection)
c. Based on: need, contribution, duration, + fault (maybe)
d. Starting point usually 50/50 (Michael case)
i. Sometimes 50/50 is rebuttable presumption

Once divided in a divorce decree (or signed off by the court if out-of-court settlement), it is final +
non-modifiable

V. Sawada v. Endo (p. 429)

VI. In re Marriage of Graham (p. 438)
VII. Obergefell v. Hodges (p. 456)

Property + Anti-Discrimination Law:

Fair Housing Act:

I. Historical Background on the FHA:

a. Congress passes in 1968 after President Johnson’s Kerner Commission identified housing
segregation as among the worst continuing forms of discrimination in the US
b. Housing discrimination against racial + ethnic minorities + residential segregation of
racial + ethnic minorities existed historically in myriad forms, + its vestiges have
persisted in contemporary America. Those forms included:
 i. The Black Codes: laws passed right after the Civil War which among many other
things said that AA couldn’t own property + had to live in certain areas of entire
towns (or were excluded from entire towns) The Black Codes were abolished by
the 14th Amendment in 1868 but were essentially replaced with Jim Crow, which
was institutionalized formally from around the end of Reconstruction to the
1970s
ii. Racially discriminatory Jim Crow zoning laws: these laws said that if you were
white you had to live in one section of the town + if you weren’t white you had
to live in another section. Struck down as unconstitutional in 1917 (not all Jim
Crow, just zoning)
iii. Racially discriminatory property covenants: these were private agreements
between + among private property owners to exclude racial minorities. They
were binding on successors in interest. In 1948 in a case called Shelley v.
Kraemer the court said that these were constitutional on their face, but
unconstitutional when enforced by state courts. Once enforced it made the state
liable under the 14th Amendment. These covenants were declared illegal on their
face under the FHA
iv. Brown v. Board of Education + the residential segregation that it precipitated: in
1954 the court declared separate but equal in secondary education
unconstitutional. Result? Schools were desegregated + massive white flight from
cities to suburbs. Racial segregation was made worse when the court ruled in
1974 that cities couldn’t bus students from suburbs to cities (+ vice versa) to
alleviate residential segregation
v. Zoning laws that are neutral on their face but have a segregative effect: zoning
laws made it difficult for people with fewer resources – including racial + ethnic
minorities with fewer resources – to live in areas that were single family
residential only.
vi. Redlining: redlining is a term that describes a whole set of discriminatory real
estate practices, including but not limited to discriminatory lending practices.
Banks would draw a red line around entire areas + say we’re not extending loans
to racial minorities to purchase real property in those areas. Or real estate brokers
wouldn’t show racial minorities housing in those areas.
vii. The federal government: the federal government was one of the main
contributors of racial segregation during WWII, when the federal government
created + subsidized entire towns across America to manufacture war goods.
Federal government mandated segregation in these towns, + once the war effort
ended, people just stayed there, + the segregation became permanent.
viii. Summary: all these things contributed to ongoing discrimination against +
segregation of racial minorities in the US according to the Kerner Commission.
Kerner concluded that racial segregation didn’t happen by accident + it wasn’t
the product of some moral failing. Rather, racial segregation resulted from a mix
of private + governmental practices, only some of which the Constitution
reached. All these things were in Congress’ mind when it passed the FHA
II. Congress’s Authority to Pass:
a. Congress’s authority to pass FHA came from the Commerce Clause, not the 14th
Amendment
 b. In 1964 the SCt said that Congress could pass anti-discrimination laws under its power to
regulate commerce on the theory that discrimination in housing had an interstate
commercial effect
III. The FHA: What Does it Do?
a. Prohibits state + private actors from discriminating on the basis of race, color, religion,
sex, disability/handicap, + familial status in the sale + leasing of property.
i. Familial status – discrimination because of number of family, whether children or
not, not on whether you are married.
ii. Handicap – physical or mental impairment that substantially interferes with one
or more major life activities.
iii. Not covered: sexual orientation, marital status, economic class, sex offenders,
people currently using a controlled substance, criminal status
b. Coverage: prohibits state + private actors from discrimination in all of these areas:
i. Sale of property
ii. Leasing of property
iii. Zoning laws + housing ordinances
iv. Land use regulations
v. Racially restrictive covenants
vi. Low-income housing decisions (what was at issue in the Inclusive Communities
Case)
vii. Lending practices, real estate practices, etc.
viii. All discriminatory advertisements – ads indicating a preference (exception: ads
indicating a preference for sex in rentals where part of the housing is shared, like
a common bathroom)
IV. FHA: Narrow Exceptions:
a. Owner-occupied apartments
b. Owner selling or leasing single family housing if no more than 3 such single-family
houses
c. Zoning laws that contain numerical occupancy limits (no more than 3, 4, 5, 10, etc).
Those are OK
d. Private clubs + religious institutions
e. HOPA 55+ communities
f. Reasons for these:
i. The more intimate the setting, the more likely that anti-discrimination law won’t
apply. Compare Title VII
ii. Even if the exceptions apply, still cannot engage in discriminatory
advertisements
V. FHA + Other Anti-Discrimination Protection
a. FHA + the Civil Rights Act of 1866:
i. Civil Rights Act of 1866, passed after CW, prohibits state + private
discrimination in property transactions + in the making of contracts
ii. Civil Rights Act ONLY applies to race + ethnicity (unlike the FHA, which is
broader)
iii. Civil Rights Act has NO EXCEPTIONS (owner occupied, etc)
iv. Civil Rights Act does NOT apply to discriminatory advertising + services
 b. FHA + the 14th Amendment:
i. FHA applies to private + state, 14th just to state
ii. FHA permits disparate impact, 14th only disparate treatment
VI. What is “Discrimination” under the FHA?
a. Disparate Treatment: when discriminatory motive exists + can be proven; where a
potential tenant is turned down because of membership in a protected class (LL doesn’t
have to lease to X because a woman, racial minority, religious minority, etc)
b. Disparate Impact: when discriminatory motive (the smoking gun) cannot be shown, but
a policy has a disparate impact on a particular group
i. Example: decisions by state housing authority to give credits to developers who
build low income housing, but build it only in areas that are already racially
segregated
c. Failure to accommodate people with qualifying disability: discrimination
d. Thus, under the FHA, discrimination:
i. Disparate treatment
ii. Imbalances/statistical disparities that cannot be justified
iii. Failure to accommodate people with disability

Judicial Land use Control:

Nuisance: tort who is subject is property; matter out of place; nothing is a nuisance in + of itself, but
becomes so in the wrong context

I. Legal definition: intangible invasion that substantially interferes with a person of ordinary
sensitivity’s / reasonable person’s use + enjoyment of land, that is either intentional and
unreasonable OR unintentional result or negligent or reckless conduct
a. Is it an intangible invasion?
b. Does it substantially interfere with a reasonable person’s use + enjoyment of land?
c. Is it intentional + unreasonable? OR
i. Common law definition of intentional
ii. High level
iii. Unreasonable balancing test – gravity of the harm to social utility of the conduct
d. The unintentional result of negligence or reckless conduct?
i. This is also a balancing test – gravity of harm to social utility of the conduct
e. Invasions that definitely qualify:
i. Sounds
ii. Smells
iii. Dust
iv. Vibrations
f. Invasions that don’t qualify:
i. Ugly things – aesthetic nuisance
g. Invasions that might qualify:
i. Halfway houses – stigma
II. When Does Liability Attach (when is something a nuisance)?
a. Intentional + unreasonable:
 i. Intentionally: with the purpose of achieving that result OR engaging in conduct
knowing that result could occur
ii. Unreasonably: depends on the jurisdiction, rewatch the class
b. Unintentional result of negligent or reckless conduct
i. Acting negligently – acting unreasonably
ii. Acting unreasonably – utilitarian calculus
1. Compare gravity of harm with utility
iii. Definition negligent or reckless conduct:
iv. Definition of unreasonable:
III. Remedies (assuming something is a nuisance)?
a. Temporary Damages (for amount harmed from the time the nuisance started):
i. Amount plaintiff has been damaged from the start of the nuisance to the time of
litigation
b. Injunction (Property Rule):
i. Plaintiff (Morgan, Estancias):
ii. Defendant:
iii. When does injunction issue? (see Estancias)
c. Permanent Damages (liability rule): account for both past harms + an approximation of
total future harms
i. Plaintiff (Boomer)
ii. Defendant (Spur Industries)
IV. Property Rule: a rule that says the owner of a right (in this case, the right not to be polluted on
or right to pollute) cannot have that right taken away without his consent
a. Puts plaintiff in the bargaining position
V. Liability Rule: a rule that says that the owner of a right (either the right not to be polluted on or
the right to pollute) can have that right taken away for damages determined by a court

Plaintiff Defendant
Property Rule: injunction at no cost, which forces Property Rule: no injunction, no abatement;
defendant to abate the nuisance; balancing the balancing the equities favors defendant because
equities favors the plaintiff social utility high OR gravity of harm low

Case: Morgan; Estancias

Question: What is the “balancing of equities test?

See page 739
 Courts apply this

What does the test look like?

Do you agree with the Estancias court’s

articulation of the test on fairness grounds?

Do you think the Estancias court applied the test

erroneously in that case?

What can the plaintiff do with the injunction?

 Plaintiff Defendant
Liability Rule: defendant compensates plaintiff Liability Rule: Plaintiff compensates defendant to
for nuisance (pollution cases). Plaintiff gets the close. Plaintiff gets the injunction, but only if it is
injunction because gravity of harm is high enough willing to pay for it.
BUT the plaintiff might be forced to sell the
injunction back to the defendant at a price Usually applied in “coming to the nuisance” cases
determined by the court because social utility is where plaintiff is partially at fault
very high
Case: Spur Industries
Case: Boomer
How does this differ from a property rule in
Why does the court embrace this approach? See p. defendant’s favor?
743

Is the court abdicating its responsibility of making

plaintiffs whole by focusing on social
consequences?

How does this differ from a property rule in

plaintiff’s favor?

What does Boomer mean on p. 745 when it calls

the pollution a ‘servitude’ on the plaintiff’s land?

What does the award of permanent damages to the

plaintiff mean for future landowners who are
victims of pollution?
VI. Morgan v. High Penn Oil Co. (p. 731)
VII. Estancias Dallas Corp. V. Shultz (p. 739)
VIII. Boomer v. Atlantic Cement Co. (p. 742)
IX. Spur Industries, Inc. V. Del E. Webb Development Co. (p. 749)

Private Land Use Control: Servitudes:

Easements: specific legal right to pass through or otherwise access real property belonging to another
person

I. Overview:
II. Servitudes (family tree): burdens on land that are the result of private contracts; can arise
through implication; non-possessory interest in land that allows the holder to make use of the land
or prevent something from being done on the property
a. Easements
b. Covenants
III. Easements: right to use someone else’s land that runs with the land
a. Why recognize?
i. Enhance value + marketability of land (e.g. path to reach water)
ii. Might arise by operation of law (implication, prescription)
b. Land interests (writing, with exceptions)
c. Compare: license, which is freely revocable
 i. Not in writing
d. Types:
i. Appurtenant: 2 parcels, dominant + servient
1. Land gets the easement – runs with the property
2. Burden land + benefit land
3. Dominant parcel gets the benefit of the easement – runs automatically to
successors in land of that estate
4. Burdens – usually run with the land, but not always – they must have
notice to be bound
ii. In Gross: (utility, railway): 1 parcel, servient only
1. Easement that belongs to the easement holder independently of a parcel
of land + thus does not run with + is not attached to the land
iii. Close cases: Willard
e. Duty to maintain is with the easement holder
f. Interference with: trespass (e.g., servient tenement erects a chain fence)
g. Scope of easement: look at the language of the granting document + reasonably
foreseeable uses
h. Misuse of: trespass. Dominant tenement might misuse (+ thus trespass) if the use is
outside the scope (e.g., easement to reach water might include walking + riding a bike but
likely not driving a car) or if the number of users unreasonably increases (e.g. single
family to multi=family)
IV. How to Create:
a. Express Grant: A grants B an easement appurtenant over A’s land to reach the beach.
OR A grants B an easement in gross to use A’s lake.
b. Reservation: created by the grantor of real property to benefit the grantor’s retained
property + to burden the granted property
i. In Grantor’s Favor: A sells land to B that borders the beach, but reserves an
easement in the grantor’s favor for the grantor to reach the beach.
ii. In third party’s favor: A sells land to B but reserves an easement in C’s favor to
reach the beach. Whether this is recognized depends on the jurisdiction in
question (see Willard)
c. Implication: they are not expressed + will not appear anywhere on a deed; arise by
operation of law; both are going to be easements appurtenant
i. Prior Use (see Van Sandt): right of way that arises by operation of law that is
based on the use of property before it is divided into separate parcels
1. Example:
2. Elements:
a. Begins with a common owner that used the land in a quasi-
easement way
b. The parties intended for that use to continue upon division – how
do we know intent if it’s never written down?
i. Could be reflected in purchase price
ii. If the easement is reasonably necessary + if it’s apparent
then we infer that the parties intended for it to continue
c. Easement was apparent
 d. Easement is reasonably necessary to the enjoyment of the
dominant tenement
i. If the owner would incur great expense to re-route, then
it is reasonably necesary
ii. Necessity (see Othen):
1. Example:
2. Elements:
d. Prescriptive: easement by adverse possessor, uses property in a certain manner for a
certain amount of time
i. Elements:
V. How to Transfer:
VI. How to Terminate:
VII. License: oral or written permission given by the occupant of land allowing the licensee to do
some act that otherwise would be a trespass
VIII. Willard v. First Church of Christ, Scientist (p. 766)
a. Facts:
i. Genevieve McGuigan owned 2 adjacent plots of land in Pacifica, CA
ii. A small office building was located on one plot, + a parking lot on the other
iii. McGuigan allowed the First Church of Christ, Scientist, Pacifica to use her lot
during church services
iv. McGuigan eventually sold the lot with the office building, but retained ownership
in the parking lot.
v. Soon after, the purchaser of the office building sought to resell the building +
sold it to the plaintiffs in this suit – who also wanted to buy the parking lot.
vi. Purchaser agreed to sell both lots, which required him to purchase the parking lot
from McGuigan – which she sold but created an easement for the church to use
the property for parking during church services.
vii. This deed was recorded + sold to the plaintiffs.
viii. Plaintiffs discovered the easement several months later, + brought an action to
quiet title on the property
b. Issue + Holding:
i. May a grantor reserve an interest in the land to be granted, for use by a 3 rd party?
1. Yes
c. Constructive Notice:
d. Inquiry Notice:
e. Reasoning:
i. Plaintiffs received notice of this easement because it was recorded in the deed
IX. Van Sandt v. Royster (p. 777):
a. Facts:
i. Laura Bailey owned 3 plots of land
ii. On the easternmost plot, Bailey built a house + connected it to the public sewer
system by pipes running under the other 2 lots
iii. In 1904, Bailey sold the westernmost lot to Jones by general warranty deed
iv. Jones knew about the sewer + connected his own house to the line
v. Eventually Jones’s lot was conveyed to plaintiff
 vi. Meanwhile, Bailey conveyed the center lot to Murphy by general warranty deed,
+ Murphy built a house + connected it to the sewer line – this house was
eventually conveyed to defendant
vii. In 1936, plaintiff’s basement flooded with sewage. They investigated +
discovered sewer line under their property
viii. Nothing in any of the conveyances or visible on the land indicated the presence
of the pipes
ix. Plaintiff asked defendant to stop discharging sewage across the land, he refused,
+ plaintiff sued
b. Issue + Holding:
i. Will an easement be implied in favor of a grantor if the existence of pipes
running through the grantee’s land is not mentioned in the conveyance or visible
to the eye?
1. Yes
c. Reasoning:
i. Factors for determining whether the parties intended to create an easement by
implication are:
1. Whether the claimant is the conveyor or the conveyee
2. The terms of the conveyance
3. The consideration
4. Whether the claim is made against a simultaneous conveyee
5. The extent of the necessity of the easement
6. Whether reciprocal benefits result
7. How the land was used before the conveyance
8. How much the parties know about that use
ii. Easement for the pipe was necessary for the use + enjoyment of the other parcels
iii. Easement was apparent – plaintiff had a full inspection of the property + saw the
modern plumbing
X. Othen v. Rosier (p. 785):
a. Facts:
i. Hill owned a large tract of land, which he conveyed 100 acres of in 1896, which
eventually reached the defendants in 1924
ii. In 1987, he conveyed another 60 acres, which conveyance eventually reached
plaintiff in 1904
iii. In 1913, plaintiff acquired another 53 acres of the land + in 1924 defendants
acquired another 16.31 acres
iv. Plaintiff’s land did not connect to a public road, so in order to access the Belt
Line Road, at the western border of defendant’s property, plaintiff would follow
a fenced-in path which ran through defendant’s property
v. Eventually, defendant was concerned that certain water patters threatened to
cause damage to his property, so he constructed a levee to channel the flow
vi. The levee blocked half of the road used by plaintiff, + rendered the path muddy +
unusable
vii. Plaintiff sued defendant, alleging that defendant had blocked his right of ingress
+ egress to + from his farm
 viii. Plaintiff asked the court to order defendant to remove the levee + enjoin
defendant from further depriving plaintiff of use of the path
b. Issue + Holding:
i. Whether an easement of necessity is proven where the purported easement holder
cannot state that the easement provided the exclusive means of access to the
public road
1. No
ii. Whether an easement by prescription is created where the property owner knew
of + tolerated the use of the property by another
1. No
c. Reasoning:
i. (1) - evidence failed to show that the easement was “necessary” to reach the land
eventually owned by plaintiff at the time that Hill first conveyed the defendant
land (referring back to 1896 – not necessarily now or for the past 40 years)
ii. (2) - Plaintiff’s actions did not amount to an easement by prescription because all
parties had used the land throughout their occupation of the land
iii. Plaintiff was merely granted a license to use the land, which cannot ripen to an
easement by prescription
XI. Miller v. Lutheran Conference + Camp Association (p. 799): Plaintiff, his brother, + others
created a corporation to build an artificial lake. The corporation granted to plaintiff, his heirs, +
his assigns by deed the exclusive right to fish + boat on all the waters of the lake. Plaintiff + his
brother also created a partnership to build + operate boat + bath houses. Plaintiff granted his
brother a ¼ interest in the fishing, boating, + bathing rights. After his brother died, his heirs
began to grant licenses to lakefront property. One such license, given to defendant, permitted
them to boat, bathe, + fish in the lake. Plaintiff sought an injunction to stop the defendant from
using the water for bathing purposes. Plaintiff argued that he never actually had the ability to
transfer bathing rights to Miller because the bathing rights remained in the corporation's
possession. Plaintiff argued in the alternative that even if plaintiff had the bathing rights, then the
boating, bathing, + fishing privileges were indivisible easements in gross, so plaintiff could not
grant a ¼ interest to his brother. Defendant countered that plaintiff + his brother acquired the
bathing rights by prescription, which allowed the rights to be divisible. Lower court issued
plaintiff’s injunction.
a. Issue:
i. Are easements in gross divisible without the consent of all parties holding an
interest?
1. No
b. Reasoning:
i. If divided – all those holding an interest must act as a single entity
ii. Easements in gross can ripen into title by prescription if there is sufficient
evidence of systemic use
Covenants:

I. Tulk v. Moxhay (p. 838)

II. Neponsit Property Owners’ Association, Inc. V. Emigrant Industrial Savings Bank (p. 843)
III. Sanborn v. McLean (p. 854)
IV. Shelley v. Kraemer (p. 859)
Legislative Land Use Control: Zoning + Eminent Domain:
Zoning I:

I. Village of Euclid v. Ambler Realty Co. (p. 899)

Zoning II:

I. Kelo v. City of New London (p. 1001)

Zoning III:

I. Southern Burlington County NAACP v. Township of Mount Laurel (p. 972)

Eminent Domain:

I. Kelo v. City of New London (p. 1001)