Contributed by Roger Martin, 2L Student by night at Univ. of San
Diego, Patent Agent by day at [email protected]
**Edwards v. Sims (1929).
Facts: P. owns land that is directly above a sub-terrainian cave. D. is
a judge who ordered the cave entered to determine the facts of another
case (Edwards v. Lee), as to whether the cave travels under Lee's land
as well, and therefore P. would be trespassing on Lee's property while
exploiting the cave. P. seeks a writ of prohibition to prevent D. from
enforcing his order.
Issue(s): Is the D. proceeding erroneously within its jurisdiction in
entering and enforcing the order directing the survey of the cave under
P.'s land in order to resolve the issues in Edwards v. Lee?
Holding(s): A court of equity has the transcendent power to invade the
property of a private citizen for the purpose of ascertaining the facts
of a separate matter before the court.
Reasoning: The right to enjoyment and possession of property is limited
in so far as the state has a right to infringe upon those rights when it
believes that those rights are being used to the detriment of other
private citizens. Court cited a similar decision involving the
determination of trespass in a sub-terrainian mine.
Dissent(s): You only have rights to underground property which you can
exploit, and since the cave opening was on Edward's land, there was no
way that Sims could exploit the cave, and so he should have no rights.
This is based on the social utility theory.
**Johnson v. McIntosh (1823)
Facts: P. claims the land granted to him under two separate grants, one
in 1773 and the other in 1775, made by two separate Native American
Indian chiefs. The chiefs were acting under proper authority of the
tribes they represented, and had possession of the land which they sold
under the grant. P. wished to have these grants recognized by U.S.
Issue(s): Can a title given by an American Indian and received by a
private citizen be recognized in U.S. courts?
Holding(s): No. The United States holds the ultimate title to the land
of the country, and has the exclusive right to acquire the right of
possession from the American Indians.
Reasoning: The nature of the U.S. right derived from the unquestioned
European right of possession by discovery, and when the U.S. obtained
independence, the treaty with England to end the war explicitly conveyed
the "proprietary and territorial rights of the United States" to the new
U.S. government. By conquest, the U.S. has exercised it's exclusive
right to acquire the right of possession from the Native Americans
occupying the territory.
**Goddard v. Winchell (1892)
Facts: P.. owns a pasture which he leases to another. A meteorite fell
to earth and buried itself 3 feet into the soil of P.'s pasture. A
separate person, Hoagland, found the meteorite while in the presence of
the lessee of the pasture, and dug it up. Hoagland then sold the
meteorite to D. for $105. P.. claims ownership of the meteorite because
it fell into his land.
Issue(s): Did the meteorite become "part of the soil", and therefore the
property of P., or was it something that belonged to nobody, and
therefore the property of the D. who bought it from the finder?
Holding: Yes. When meteorites fall to earth, they become part of the
soil, and thus belong to the owner of the soil.
Reasoning: By the doctrine of accretion, soil may be moved by natural
causes from one person's field, and deposited into that of another. The
court reasoned that this meteoric event was accretion on a planetary
scale, and thus the meteorite which was previously unowned, became the
property of the P. by virtue of becoming part of his soil.
Notes: 6. It has been held that if A pumps out oil or gas from a natural
reservoir located under the land of both A and B, that A has not taken
from B. One rationale is that the resource only becomes property after
it has been extracted, another is that the resource is owned, but the
owner loses property rights when that resource migrates into the land of
**Eads v. Brazelton (1861)
Facts: P. Brazelton found the wrecked steamboat America sunken in the
Mississippi, and placed a bouy over it, and to marked a fix on some
nearby trees, intending to return the next morning to recover the large
amount of lead abandoned therein. However, P. was unable to return
during the next several months and D. was able to find the wreck on his
own, and commence lifting the lead from it. P.. sued for recovery of his
property in the wreck, and to obtain compensation for the lead that D.
Issue: Were P.'s efforts (marking the fix, placing the bouy) sufficient
to vest in him property rights for the abandoned wreck?
Holding: No. "The occupation or possession of property lost, abandoned,
or without an owner must depend on an actual taking of the property with
an intent to reduce it to possession".
Reasoning: The court reasoned that P.'s actions were not sufficient to
warn away intruders, and so he had not effectively taken possession of
the wreck. Placing a boat there, and making persistent efforts to raise
the lead, would have been acts of possession.
Notes: 4. "the law does not clothe mere discovery with the exclusive
right to the discovered property because such a rule would provide
little encouragement to the discoverer to pursue the often strenuous
task of actually retrieving the property...". 6. A person who hinders
another in his trade is liable, however if a person does damage by
engaging in the same trade, he is not liable. In Keeble v. Hickerson,
one who frightened ducks away from another's pond was liable, but would
not have been if he had coaxed them to his own pond by use of a decoy.
**Armory v. Delamirie (1722)
Facts: P. found a jewel and took it to D.'s goldsmith shop where D.'s
apprentice removed the jewel under the pretense of weighing it, and
informed D. of its weight. Then D. offered the P. money for it, but the
P. refused and insisted upon the return of the jewel, at which time the
apprentice returned the empty setting without the jewel in it to the P.
Issue: Does P. , in finding the jewel, have sufficient property right in
it to keep it from the D.?
Holding: Yes. A finder obtains exclusive property rights of his find
against all others except the rightful owner.
Reasoning: Although unstated, I believe the reasoning to be that if the
finder was not protected by the right to exclude others from taking his
find, simply because it was previously unowned, that there would be no
incentive to the discoverer to bring the found item to a socially useful
Note: The court awarded the P. damages amounting to the value of the
finest jewel that could possibly be mounted in such an arrangement,
because D. was unable to produce the actual jewel for return to the P.
** Bridges v. Hawkesworth (1851)
Facts: P. , while leaving D.'s shop, found a parcel which had been lying
on the D.'s shop floor. When opened, it was found that the parcel
contained a stack of bank notes. P. then requested that the D. retain
the notes and return them to the owner. After 3 years had passed, the
owner had not claimed the notes, and so P. requested that the D. turn
over the notes to P. . D. refused, and P. brought action to recover the
notes from D.
Issue: Does the fact that the notes were found inside the D.'s shop give
the D. the right to keep them from P. , who is the finder?
Holding: No. The finder of a lost article is entitled to it as against
all parties except the real owner, even if the discovery occurred on
Reasoning: The court cited Armory v. Delamirie as authority for their
holding. The court further reasoned that since the notes were never in
the custody of the D., nor under the protection of his house before they
were found, he had no responsibility for them and therefore could not
have accrued property in them before the finding by P. .
Notes: Armory v. Delamirie may have been interpreted too broadly in this
case, because Armory did not consider the rights of the person in which
the jewel was found.
**South Stratforshire Water Co. v. Sharman(1896) (England)
Facts: P.'s owned a fee simple property on which was a pool that they
contracted with D. to clean. While cleaning the pool, D. found 2 gold
rings. P. demanded said rings from D., who instead turned them over to
police to find the original owner. When the owner was not found, police
returned the rings to D., and P. sues to recover rings.
Issue: Did P. exercise compete control of the property and everything in
it and thus have the general right to demand anything found in the pool
by his employee?
Holding: Owners of non-public property obtain presumed possession of
items abandoned on their property when they are found by persons acting
on his behalf if the owners actively control use of their property, and
the things which are on it or in it, by excluding unauthorized
Reasoning: The court distinguished this case from Bridges, where a
parcel of bank notes was found on the floor of a shop open to the
public, by noting that the money in Bridges was found in a walkway open
to the public, and that the rings were on non-public use property over
which the owner intended strict control of all things on or in his
property. It was also reasoned that to hold otherwise would encourage
people to pocket what they find on another's property.
Notes: In Pyle v. Springfield Marine Bank, a safe deposit vault was
deemed to be a private area, and so valuables found on the floor
belonged to the bank and not the finder. In a similar case Parker v.
British Airways, the opposite resulted when a passenger found a bracelet
in first class because, although the airline executed a limited control
over who came and went, and what they could bring in, their control was
not construed to include controlling all articles on or in the plane.
**Hannah v. Peel (1945) English
Facts: P. was a corporal working in a gov't requisitioned house owned by
D., when he found a brooch that was covered in cobwebs. D. offered P. a
reward for the brooch, but P. turned brooch over to police and obtained
a receipt. When the owner was not found after 2 yrs, the police returned
to brooch to the D. instead of the P., and the D. sold it.
Issue: Did the D. own the brooch simply because he owned the house, or
should it belong to P., the finder?
Holding: Possession becomes vested in the finder against all but the
rightful owner when the item is found by a person who is not the agent
of the owner of the property where the item was found, and the owner
does not actually physically possess the property where the item was
Reasoning: The court likened this to Bridges and decided that the owner
of the house never physically possessed the house, and never had
knowledge of the brooch before it was found. Thus, the owner did not
necessarily have possession of everything lying unattached on his
property, specifically this brooch.
Notes: 4. Bridges was also cited in Durfee v. Jones where the owner of a
safe had no knowledge or real possession of money that was found by a
person he had entrusted the safe to for display. 5. In determining who
"found" the money in a lost sock, the court held that the "finding" did
not occur until the sock was broken open, and so all of the boys present
were joint finders.
**McAvoy v. Medina (1866)
Facts: P. was a customer of a barber shop owned by D.. P. found a wallet
with money in it laying on the table of the D.. D.. retained the money
in hopes of finding the true owner. P. claimed that as finder, he should
be allowed possession, since the owner was not found.
Issue: Was the wallet "lost" under the general meaning in Bridges,
allowing the finder to claim possession against all but the true owner?
Holding: When an item of property is deliberately placed by the owner on
the premises of a shop owner and then forgotten, it is not "lost" in the
ordinary meaning of the word, it is mislaid, and the shop owner retains
possession against all but the true owner, even if the shop owner is not
Reasoning: The wallet was not dropped, and it did not appear to be
"lost" by negligence, but rather it appeared that the true owner had
intended to pick it back up again but had forgotten. Placing the wallet
on the table would be an ordinary thing to do in a barber shop, and so
the barbershop owner should keep it until the customer that left it
**Schley v. Couch (1955)
Facts: Petitioner is he owner of a tract of land on which stood a garage
with a floor that was partially concrete, and partially dirt. Petitioner
hired respondent to lay concrete over the dirt part of the garage floor.
While digging in the dirt part, the respondent found a jar of buried
money that was placed there 4 yrs prior by the previous owner. Both
parties claim possession against all but the true owner.
Issue: Was the jar of buried money "lost", or a "treasure trove"
(therefore entitling the finder to possess it) or was it "mislaid"
(therefore entitling the property owner to possess it).
Holding: The owner of the property on which buried money which is found
embedded in the soil under circumstances that do not support the idea
that the money was lost due to neglect, carelessness or inadvertence,
but rather which circumstances suggest that the original owner intended
to return to claim the money, has the presumed right to possess the
found money against all but the original owner.
Reasoning: The Texas court rejected the British notion of "treasure
trove" (where the finder retains possession), and instead limited its
analysis to whether the money was lost or mislaid. They reasoned that
the original owner simply forgot where he had buried the money, and so
judged the landowner to be the presumed possessor.
**Parking Management, Inc. v. Gilder, (1975)
Facts: P. parked his car in a pay lot owned and operated by D.. After
parking, he opened the trunk in plain view of some employees and placed
his lady friend's cosmetic bag inside, and locked it. The rear of the
car was exposed to the aisle. When he returned, he found his car damaged
by being pried open. A non-jury trial awarded him damages, the appellate
court reversed, and this court decided to hear en banc.
Issue: Was the parking garage liable for the damage under an implied
contract of the circumstances?
Holding: Yes. The operator of a commercial "park-and-lock" parking
garage is required to exercise reasonable care to avoid damage to
vehicle parked in his lot if the circumstances create a reasonable
expectation in the mind of the car owner that such care will be
Reasoning: The court distinguished this case from previous park-and-lock
cases based on the facts that there were several garage employees
around, who by admission of their supervisor, were supposed to be
watching the area and acting as a "kind of security". This admission,
that security was a major concern, led the court to believe that it was
reasonable for the P. to conclude that his car would receive some
protection from the presence of these employees.
**Shamrock Hilton Hotel v. Caranas (1972)
Facts: Wife P. left her purse at the table in the dining room at the
Hilton. Upon discovering the purse, the bus boy took it to the cashier
according to hotel instructions. Thereafter, the cashier handed the
purse over to a man claiming to be the husband P.. The next morning,
P.'s notified the hotel of the loss and claimed the purse contained
$13,000 worth of jewels. P.'s filed suit for negligence, and won $11,000
plus interests and costs at the trial court. D. appealed.
Issue: Was there a bailment created by the cashier although she may have
had no intention of establishing one?
Holding: Yes. If a commercial enterprise which caters to the public
holds "lost-and-found" items as a normal course of business, then they
create an implied bailment for any items that they recover on their
property which were misplaced by their owners.
Reasoning: The court reasoned that there was a constructive bailment
because the P., if she knew that she had misplaced the purse, she would
have reasonably expected the finder to hold and protect it for her until
she could reclaim it. Further, they said that the bailment was for
mutual benefit of both parties. The hotel derives a benefit of return
business for those who they return lost property to.
Dissent: The dissent argued that no bailment was created because there
was no intention to create a bailment (bad argument). He further said
that even if there were a bailment for the purse and the normal expected
contents of a purse, there was no bailment for the jewels, which he
doubted were there in the first place.
Notes: 1. In Ampco Auto Parks, Inc. v. Williams, a commercial auto park
was held not to be a bailee of the contents of a car trunk, concededly
bailed, if those contents were not reasonably to be found in a trunk
(e.g. a Pre-Columbian Bell from 1,000 BC.). In Samples v. Geary, a coat
check at a dancing school was found not to be a bailee for a fur piece
wrapped inside a checked coat, because there was no knowledge of the
fur, therefore no contract (Bull-oney). In Peet v. Roth Hotel Co., a
person who accepted possession of a ring for delivery to another was a
bailee, even though he did not know the ring was valuable. 2. In Cowen
v. Pressprich, a securities broker became an involuntary bailee when a
bond was delivered to his office by mistake. He gave it to a person he
thought was the messenger of the true owner. He was found not to be
liable for conversion because he was trying lawfully to return it to the
owner, and divest himself of any implied bailment. Had he retained it to
try to protect it for the owner, he would then have been a voluntary
bailee and absolutely liable for protecting it.
**SHERIDAN SUZUKI, INC. V. CARUSO AUTO SALES (1981).
Facts: P., a Suzuki dealer, "sold" a motorcycle to a guy who wrote a bad
check. However, before the P. found out that the check was bad, the guy
sold the motorcycle to D., a used car dealer, who called P. to verify
that the motorcycle had been sold to this guy. D. completed the sale
upon the promise that the guy would forward the Title as soon as he
received it. P. confirmed the "sale". P. then found out that the check
was bad, and stopped the New York Certificate of Title from issuing. P.
then sued for possession of the motorcycle, claiming that no title had
ever passed from them.
Issue: Who has better title, P. or D.?
Holding: When state law requires additional requirements over common law
or the UCC for central registration of title, and that title is not
issued due to fraud, the owner retains legal title against subsequent
good faith purchasers.
Reasoning: The court reasoned that although the UCC specifically
contemplates a dishonored check creating a voidable title that can be
later transferred to a bona fide purchaser as a good title, they also
had an obligation to decide the case in harmony with state statutes. The
Uniform Vehicle Certificate of Title states that the voidable title
would not be perfected until the state reviewed the title application
and granted title.
**CHAPIN V. FREELAND (1886)
Facts: P. bought a property that contained counters (nailed to the
floor) which had been installed there more than 6 yrs ago, and which D.
had owned but not claimed until after the sale. D. peaceable took
possession of the counters from P. after the sale. The trial court ruled
that the D. retained good title even though the 6 yr. statute of
limitations for bringing an action of replevin had expired.
Issue: Does P. have good title by virtue of buying the property from
someone who had retained it against D. for longer than the 6 yr. statute
Holding: Yes. Long-continued and unopposed possession of chattel or land
by someone against the original owner may result in the acquisition of a
good title against the original owner.
Reasoning: The majority reasoned that good title had transferred from D.
to the owner of the property where the counters were nailed when the 6
yr. statute of limitations for bringing actions for replevin had
expired. Thus, when the property was sold to P., that good title was
transferred to P.
Dissent: The dissent reasoned that the statute of limitations only
applied to bringing actions in court, and did not create a good title in
the adverse party. They further stated that the original owner retained
good title and could peaceably recover her counters at any time.
** Howard v. Kunto (1970)
Facts: P.-appellee sought to sell half of his waterfront land to another
party, and so had a survey performed to determine the exact lay of his
property. When the survey was performed, however, it was found that the
previous surveys, which were used for determining the deeds that were
recorded for each plot in the neighborhood, were in error by 50ft. Thus,
each lot that was occupied actually belonged in deed to the person's
next-door neighbor. D.-appellant occupied a house on property that was
described in the deed acquired by P.-appellee, who sued for recovery of
the land described by the deed. D. contended that a long string of
previous occupiers of the house adverse to P. constituted a new title in
D. P. argued that D. could not tack his adverse possession time onto
that of his predecessors because it was only a summer house, and
therefore not "continuously" occupied, and that the chain of possessors
was not in "privity" because the deed was to the wrong tract of land.
Trial court ruled for P., D. appealed.
Issue: 1. Is a claim of adverse possession defeated because the house
was only used as a summer property? 2. Can a person who has recorded
title to a tract of land adjacent to his, but thinking that he has
correct title to the land which he possesses, tack his adverse
possession onto the previous periods of occupancy which went before his?
Holding: 1. No. To establish continuity of possession, a person must
only occupy the property for periods of time which are consistent with
the nature of the property. 2. Yes. Where there are several successive
bona fide purchases and recordings of a deed to a tract of land adjacent
to the tract of land occupied, and the cumulative possessions are longer
than the statute of limitations for actions to recover property, there
is sufficient privity to permit tacking and thus establish adverse
Reasoning: 1. The court reasoned that the rule of continuity was not one
requiring absolute mathematical continuity, but rather if the land is
occupied during the period of the year when it is capable of use, that
is sufficient. 2. The requirement of "privity" is intended to keep
chains of unrelated squatters from voiding the title of the original
owner, and clearly those are not the facts in this case. Each possessor
was a bona fide purchaser from the previous one. Furthermore, where a
person claims more than his deed describes, the question of privity is
not defeated, so it should be the same for where the deed describes an
adjacent parcel of land.
Notes: 1. The privity requirement can be fulfilled by a relation between
disseisors of grantee/grantor, ancestor/heir, or devisee/devisor.
Possession need not be directly by the disseisin, but may be by someone
authorized by him. 2. A possessor can claim title to a land which he
occupied for the statutory period under the mistaken belief that it was
his own, even though he may not have muniment of title. 6. Most statutes
have disability clauses that extend the period required for adverse
possession if the owner is a child, insane, incompetent, etc. However,
there can be no tacking of disabilities, the statute runs with any
change in ownership. 7. There has been opinion recently that the
disability clauses should be removed because they prevent some cases
from being settled in a reasonable time when there is clearly no
opposition from the disabled land owner. The theory is that the disabled
persons relatives/friends will look out for him, and the occasional loss
will be offset be the increased security against latent claims by
disabled persons suddenly being brought forward.
**O'Keeffe v. Snyder (1980)
Facts: O'Keeffe is the painter who painted several paintings that she
claims were stolen from her studio in 1946. She did not advertise that
they were missing until 1972 when she registered them as stolen with an
Art Dealers Association. Snyder bought the paintings in question in 1975
from a dealer who claims that they were in his family since perhaps as
early as 1941-1943 (before the claimed theft). O'Keeffe discovered the
paintings in Snyder's gallery in 1976 and instituted an action of
replevin to recover them. Snyder claims both that the statute of
limitations for replevin of chattels had run, and that he had held the
paintings in adverse possession, through tacking with the dealer's
family, for over 30 years. Trial court issued summary judgment for
Snyder, holding that the statute of limitations had commenced running on
the date of the original theft. Appellate court reversed and entered
judgment for O'Keeffe holding that Snyder had not proven the elements of
Issue: Who has best title to the paintings?
Holding: 1. Unlike in real estate adverse possessions, in cases
involving personal chattels, a cause of action will not accrue, and thus
the statute of limitations will not begin to run, until the injured
party discovers, or by reasonable diligence should have discovered,
facts which form the basis of the action. (Discovery Rule).
Dicta: 2. The expiration of the statute of limitations bars the remedy
to recover, and also vests good title in the possessor. 3. In
establishing adverse possession of personal chattels, tacking of periods
of possession between parties in privity with each other is permitted in
the same way as with real estate.
Reasoning: 1. The literal language of the statute of limitations results
in harsh holdings when the property in question is one which is easily
concealed, or its display is not visible broadly enough to put the owner
on sufficient notice of the identity of the possessor (analogy to
jewelry worn). It would encourage larceny to hold that the strict letter
of the statute would prevent the owner from recovering an item of which
he never knew the identity of the possessor. 2. Before the statute runs
out, the possessor has a voidable title against all others but the true
owner. To leave the title in the original owner after adverse possession
would not put issues to rest that were deserving of resolution because
of their age and action of the owner. 3. Not to permit tacking would
enable the original owner to have rights much longer than the statute of
limitations, and put a subsequent buyer in a worse position than the
person who took it wrongfully in the first place.
**Wetherbee v. Green (1871)
Facts: D. is the owner of land upon which stood a tree that P. cut down
and fashioned into several expensive wooden hoops. P. cut down the tree
in good faith on the mistaken belief that he had received permission
from a person authorized to grant it. D., however, did not authorize the
taking of the tree and so replevied the hoops, which were hundreds of
times more valuable due to the labor than the trees before they were
cut. P. sued to get the hoops back, but trial court found for D., and
refused testimony that would establish the value of the hoops being much
greater than the trees.
Issue: If a person, acting in good faith, takes the property of another
and transforms it into something immensely more valuable, does he obtain
good title to the resultant product even though it was made with the
materials belonging to the owner?
Holding: Yes. When a person, acting in good faith, takes the property of
another and adds substantial value to it, he obtains good title to the
improved object, but nevertheless is liable to the original owner for
the value of the original materials.
Reasoning: The court reasoned that the policy of the rule is to afford
proper compensation for loss to the original owner, without unduly
penalizing the possessor, and without conferring a giant windfall on the
**Isle Royale Mining Co. v. Hertin (1877)
Facts: P. mistakenly entered upon D.'s land and cut down several trees
as cord wood, placing them by the banks of a river. D. repossessed the
cord wood, and P. brought this action to recover the value of the labor
they had put into the wood by chopping it down. Trial court found for
P.. D. appealed to this court.
Issue: Is the person who, in good faith, misappropriates the property of
another and adds value to it by labor entitled to compensation from the
owner for the value added to the extent that benefit was conferred upon
the true owner?
Holding: When a person misappropriates the property of another and adds
value to it, then the original owner retains title to the property and
is not be liable to pay the value of the labor to the trespasser, unless
it would be grossly unjust to award the benefit of that labor to the
Reasoning: The court distinguished this case from Wetherbee on the basis
that the value added in cutting down the wood was not so
disproportionate as to make it a substantially transformed item because
of its increased value. Furthermore, to hold otherwise in this case
would discourage careful vigilance of other's property, because the
mistaken party would know that in either case, he could received the
value of his labor. Thus, the only person who could be protected from
this kind of trespass would be one who owned nothing, because it may be
that the property would have been eventually more valuable if it had
been left alone.
**Hardy v. Burroughs (1930)
Facts: P. mistakenly constructed a house on the land belonging to D.,
without the D.'s knowledge. Thereafter, the Tanhersley's occupied the
house and took possession of it. D. refused to pay for the value of the
house, determined to be $1,250.
Issue: Does P. have a cause of action to recover the cost of the house
from D. who is enjoying it?
Holding: Yes. "Where an occupant in good faith has made improvements and
has been evicted by the true owner, he may sue in equity for the value
of his improvements without reference to any fraud or misconduct on the
part of the true owner."
Reasoning: In this case it would be inequitable to grant the house to
the D.'s without pay because it was such a large improvement, even
though the D. was unaware that the house was being built. An equitable
settlement was to allow the D.'s to keep the house after paying for it,
because in fairness, they never had a real title to it except that it
was on their land. Another possibility would be to allow the P. to buy
the land under the house.
I. Donative Transfers (transfers without consideration, gifts)
A. Irrevocable, except those made in contemplation of pending death.
B. Law surrounding gifts protects 3 interests:
1. Protecting would-be donors against their own folly.
a. spur-of-the-moment gifts
b. donor would subsequently regret
2. Protecting owners and heirs against false claims of donations.
a. alleged donor is dead, executor contesting validity of gift.
3. Protecting against whims of juries.
a. eliminates some claims that jury might find valid.
b. allows judges to retain control of marginal cases.
**In Re Cohn (1919)
Facts: Leopold Cohn, before he died, wrote a paper to his wife expressly
giving her 500 shares of stock for her birthday. The paper was signed
and handed to his wife in the presence of the entire family. Leopold
stated that he could not actually physically deliver the stock on that
day because it was in a bank deposit box in the name of his company. He
would, he stated, deliver the shares when they became available.
However, Leopold kept exerting dominion over the shares over the next
week until his death.
Issue: Is the gift of shares valid even though there was not a delivery,
and the donor continued to use them for the week until he died?
Holding: Yes. "The delivery necessary to consummate a gift must be as
perfect as the nature of the property and circumstances and surroundings
of the parties reasonably permit."
Reasoning: The majority reasoned that the fact that the shares were tied
up in the bank in the name of the company was sufficient excuse to avoid
delivery in this case. They further reasoned that the language of the
letter implied that it was not a future gift, but a present gift. Under
the circumstances, the letter itself was an instrument, or symbol, of
the gift, and actual delivery was therefore not required.
Dissent: The dissent stated that the actions of the donor in this case
negated the express language of the letter. The fact that he continued
to use the stock for leverage in his business dealings meant that he
retained possession, title, and dominion over the stock regardless of
the language of the letter. The dissent added that the donor had the
opportunity to transfer possession of the stock to himself, but decided
to leave it with the company for convenience and leverage power. They
reasoned that a symbolic gift must divest the owner of title, dominion,
and right of possession for it to be valid.
**Gruen v. Gruen (1986)
Facts: P. claims that his father gave him title to a painting which the
father wished to retain possession of until he died. D. is the P.'s
stepmother who refuses to give the painting to P. now that his father is
dead, contending that the gift was invalid because there was no transfer
Issue: Is the gift of the painting valid where the donor has reserved a
life estate in the painting, and possession did not transfer until the
Holding: Yes. Where one's actions indicate an irrevocable and immediate
transfer of title to another, while the donor reserves possession until
death, the donor's rights are thereafter limited to possession, but not
Reasoning: The court reasoned that the gift was not all of the property
rights associated with the painting, but only those of title with no
right of possession until the father's death. Therefore, the requirement
of transfer of possession of the entire painting was not required for
the purposes of this case. The court distinguished this case from that
of a testament, because in the case of a will, no rights of title vest
until the death of the donor.
**Foster v. Reiss (1955)
Facts: D. is the husband of a deceased woman who's estate and will are
being settled by P.. Right before submitting to an operation, the woman
wrote a letter to her husband stating the location of several stashes of
money and passbooks around the house, and her desire for him to have
them in the event of her death. This note was contrary to her will. The
D. read the note, found the money, and took possession. The woman then
underwent the surgery. After the surgery, she fell into a coma, and
never recovered before her death. Trial court found for P., Court of
Issue: Were the circumstances sufficient to create a valid gift, even
though there was no proper delivery (D. had to find the money himself)?
Holding: No. The delivery of a gift causa mortis must be actual,
unequivocal, and complete and made while the donor is still alive for it
to be a valid gift.
Reasoning: The majority reasoned that the woman did not actually deliver
the money to the D., but rather he had to seek it out based on the
instructions in the letter. They further stated the strict requirement
for a ceremonial, formal delivery is the only thing that separates a
gift causa mortis from a testamentary will. To eliminate the delivery
requirement would be to negate the bite of the will statutes.
Dissent: The dissent reasoned that the gift causa mortis was, by its
nature, an emergency measure because the normal routes of testament were
not available under the circumstances. Although the requirement for
delivery in gift causa mortis can not be dispensed with totally, it
would be silly to require the D. to gather up the monies and bring them
to the woman, solely so that she could ceremoniously give them back to
Notes: 3. If the donee has previously acquired possession of the subject
matter with the donor's consent, the donor's oral manifestation of
donative intent, without more, is sufficient. 4. The failure to revoke a
gift causa mortis within a reasonable time following recovery of health
of the donor eliminates the right of revocation.
**Scherer v. Hyland (1977)
Facts: D. is the administrator of the estate of Wagner. P. lived with
Wagner for 15 years. Wagner was severely depressed and suicidal. In
preparation for her death, Wagner endorsed a $17,000 check and placed
it, along with a note "bequeathing" it to P., on the table in their
apartment. Wagner then committed suicide. D. claims that there was no
delivery to sustain a gift causa mortis, since the check was found on
the table. Furthermore, D. contends that there was no imminence of
death, since Wagner decided on her own to commit suicide, and therefore
could have changed her mind.
Issue: Whether a gift causa mortis is valid in light of these facts.
Holding: Yes. Where there is concrete evidence of intent to make a
present transfer, and the donor takes all steps that they deem to be
sufficient to pass their interest in the subject matter to the donee, a
constructive delivery is thereby created sufficient to support a gift
Reasoning: The act of endorsing the check made it negotiable to P., who
was the only person who had access to the apartment. As evidenced by the
note, Wagner wanted P. to have the money. Wagner also knew that P. would
be coming home soon and would find the money and note. A person
committing suicide is no less put in imminent apprehension of death than
a person with a fatal disease.
**In Re O'Connor's Estate (1934)
Facts: Adams county, Nebraska, sued the state of Nebraska for payment of
an inheritance tax when the state obtained lands by escheat because the
previous owner died without leaving heirs. Adams county claimed that the
statutes concerning inheritance taxes were meant to cover escheat as
well as standard inheritance. The state of Nebraska refused to pay .
Trial court found for Adams county, and the state appealed to this
Issue: Is escheat of lands a form of inheritance that is subject to an
Holding: No. Escheat of land by the state is not subject to taxes of
Reasoning: The court stated that the inheritance tax only covered
property that was transferred by proper inheritance, testamentary will,
or transfer in contemplation of death (causa mortis). It was therefore
distinguishable from reversion (escheat) where there is no will or
transfer causa mortis. Furthermore, it would be contrary to the absolute
right of the state to be the original and ultimate owner of all lands.
Notes: In In Re Estate of O'Brine , the court held that personal
property was subject to estate taxes under escheat.
**Cole v. Steinlauf, (1957)
Facts: The P. entered into a contract to buy land from the D.. The
contract stated that the P. could withdraw if there was any question of
title to D.'s land that would make determination of actual title
questionable. P.'s attorney found one of the grant deeds to be
technically flawed in that it stated that the land was granted to the
grantee and "his assigns forever" instead of "and his heirs" as was the
custom in Connecticut. P. therefore demanded his deposit back from D.,
who refused. P. sued.
Issue: Was the fact that the earlier grant said "his assigns forever"
(which normally indicates a life estate) sufficient to cast enough doubt
on the title to allow P. to exit the contract?
Holding: Yes. A grant in Connecticut that does not state "and his heirs"
is uncertain enough to require an external showing of intent to grant a
Reasoning: Because the custom was to put "and his heirs" in the grant,
there was sufficient doubt as to whether a bank would accept the title
as collateral for a loan. The title could be cleared by a court of
equity presenting evidence of intent, but it was not the responsibility
of the P. to take that gamble.
Notes: The modern result of the language "and his heirs" would create a
fee simple absolute, but probably is no longer required. The grant would
be judged on other language expressing intent to grant a fee simple
**Moore v. Phillips, (1981)
Facts: L. Brennan died and left a life estate to his farmland to his
wife, and remainder interests to his daughter (P.) and her son. The
daughter and mother were not close during the latter part of the
mother's life. The mother allowed the farmhouse to deteriorate during
her lifetime, thus wasting it for the P. P. sued her mother's executrix
for waste. Lower court refused the D.'s defenses of laches and estoppel,
and D. appealed to this court.
Issue: Whether the P., by waiting 11 years until her mother's death to
institute this lawsuit, was barred by laches or estoppel from recovering
damages for waste of the farmhouse.
Holding: No. Laches is not mere delay, but must be delay to the
detriment of another.
Reasoning: The court stated that the doctrine of laches did not apply
because the D. was not disadvantaged by the P.'s waiting until after
death of her mother to institute the lawsuit. If the lawsuit had been
brought during her life, she still would have been found liable for
waste. A life tenant has a fiduciary duty to remaindermen to maintain
the property in good condition. The mother was negligent in allowing
permissive waste (vice voluntary waste) to occur to the property. The
statute of limitations against an action by remaindermen for waste does
not begin to run until the expiration of the tenancy (in this case, the
death of the mother).
I. Fee simple determinable (FSD)
A. Upon default, land instantly and automatically reverts to grantor as
a matter of law without further action required.
B. Typical language: "so long as", "until", "during".
C. Interest remaining in grantor is possibility of reverter.
II. Fee simple subject to conditions subsequent (FSSCS).
A. Upon default, grantor must take some affirmative action to divest the
grantee of the estate.
B. Typical language: "upon condition that", "provided that".
C. Interest remaining in grantor is:
1. Right of re-entry.
2. Power of termination.
** Oldfield v. Stoeco Homes, Inc., (1958)
Facts: P. desires to have a grant of land to D. revert back to the city
because of failure to meet a condition of the grant. The D. bought land
from the city under the conditions that he fill the land within 1 year.
The language of the contract stated that the land would automatically
revert if the conditions were not met. It turned out to be very
difficult to fill the land, and so the city amended the contract to
extend the period.
Issue: Does the language stating "automatically revert" make the grant a
fee simple determinable, even though there is other language that could
make it interpretable as a fee simple subject to conditions subsequent?
Holding: No. Where there is confusion between whether a grant is in fee
simple determinable and fee simple subject to conditions subsequent, the
grant must be viewed as a whole, with specific language only being
evidence of the nature of the transaction, and not determinative of the
Reasoning: The court reasoned that the fact that the city left itself
the power to amend the conditions of the grant was indication that the
grant was a fee simple subject to conditions subsequent (FSSCS).
Furthermore, they reasoned that the city, when it made the grant, was
not trying to limit the time period to year exactly, but wished it to be
done in some reasonable time. Thus, the time factor was not crucial.
Notes: 2. If the grantor had a possibility of reverter (FSD), he or his
heirs become the owner of the property as soon as the condition is
broken. If the grantor had a right of re-entry, he or his heirs become
the owner of the property only after they act to retake the property. 3.
A third person may be designated as the person entitled to possession
upon termination of a defeasible fee. 4. Most states allow a transfer of
the interest of possibility of reverter (in FSD), but not the right of
re-entry (in FSSCS), although both are possible in some states. Both
interests are inheritable.
**Roberts v. Rhodes, (1982).
Facts: The P. seeks judgment for title to a portion of land which had
been formally the subject of a grant for the purposes of a school. The
land was used as a school for 60 years, then for something else. The
grant deed to the land had the language that the grant was to the
grantee's "heirs and assigns", and "it being understood that this grant
is made for school and cemetery purposes only." There were no specific
provisions made for disposition of the land upon a subsequent failure of
use as intended. District court found the grant to be fee simple
determinable, and so reverted to P., Court of Appeals reversed.
Issue: Is the language in the grant deed specific enough to make it a
Holding: No. 1. In the absence of an intent to limit the title to a
defeasible, either expressly or by necessary implication, the grantors
pass a fee simple absolute (all rights). 2. The mere expression that a
land is to be used for a particular use is not of itself sufficient to
turn a fee simple absolute into a determinable fee.
Reasoning: The court stood upon the precedents and the restatement of
property in stating that the language was not sufficient to grant a
**Johnson v. City of Wheat Ridge, (1975)
Facts: P. seeks to obtain quiet title to a parcel of land granted by his
ancestor to the city for use as a public park. The grant stated
conditions subsequent that gave a right of entry and power of
termination to the grantor and his heirs upon failure to meet the
subsequent conditions. The city failed to meet the condition to put in
public water supply for the park, but the statute of limitations for the
state had run (1 yr.) for initiating actions concerning the enforcement
of any terms of any restriction of real property.
Issue: Did the P. obtain title when the condition was not met, even
though the statute of limitations had run?
Reasoning: Barred by statute of limitations.
**Caccamo v. Banning, (1950)
Facts: P. inherited some land from her grandfather. In the grandfather's
will, he stated that the grant was "in fee simple and absolutely and
forever; but in case the said...should die without leaving lawful issue
of her body then...[he would give it to someone else]." P. then
purported to grant a fee simple absolute of the land to another, thus
barring any fee tail granted, under common recovery pursuant to a local
statute, and transforming the fee tail to a fee simple absolute. P. then
sold the land at auction to D. who gave a down payment and promised to
pay the rest upon conveyance of a deed of good title. D. wants the down
payment back, claiming that the P. cannot convey good title because the
language of the grandfather's grant was a fee simple conditional and not
a fee tail that could be transformed to a fee simple absolute.
Issue: Was the wording of the will a grant of a fee tail (which was
barred under common recovery), or of a fee simple conditional that would
revert if P. died without children?
Holding: Language that grants a fee simple absolute, except if the
grantee die without children, conveys a fee tail.
Reasoning: The court reasoned that they could find no language that
evidenced any intent other than to convey a fee tail.
**Kost v. Foster, (1950)
Facts: P.'s are the children of a man who was granted a life estate with
remainder to his children. One of the children went bankrupt, and his
interest was sold to D. as part of settlement of his estate. The
original grant stated that it was to "their son...for and during his
natural life only, at his death to his lawful children...[and then over
to others if no children survived]." P. sued claiming that the future
interest granted to the children was a contingent interest, and D.
countersued claiming that the future interest was a vested interest.
Issue: Did the language grant a vested interest (thus sellable upon
bankruptcy), or a contingent interest (thus, not passing to a trustee in
Holding: Vested. If a conditional element is incorporated into the
description of or into the gift to the remaindermen then the remainder
is contingent, but if, after words giving a vested interest, a clause is
added making it subject to being divested, the remainder is vested.
Reasoning: The court reasoned that the conditional language occurred
after the grant of the interest, and thus it was a vested interest. If
the language had been reversed, granting the interest to "the surviving
children" then it would have been contingent. But in this case, there
was no condition that had to occur before the vesting of the interest.
**Abo Petroleum Corp. v. Amstutz, (1979)
Facts: P.'s are the grandchildren of a couple who owned an estate in fee
simple. The grandparents wrote several deeds to their children conveying
land first as a life estate with a contingent remainder in the children,
then as fee simple absolute. The life tenants attempted to convey a fee
simple to P. based on the second deed. The grandchildren claim that the
life tenants could not grant more than what they had. The P. contends
that the contingent remainder in the grandchildren was destroyed when
the grandparents made the second deeds.
Issue: Does a conveyance that purports to grant a fee simple absolute
destroy a previously conveyed life estate with contingent remainder?
Reasoning: The court reasoned that the parents retained a reversionary
interest in the property when they granted the contingent remainders.
But the parents could not destroy the contingent remainder by purporting
to later grant a fee simple. The daughters acquired no more interest in
the property by way of the second deeds than they had originally by the
**Sybert v. Sybert, (1953)
Facts: In his will J granted to C (his wife) a life estate in a piece of
property, and after her death a life estate to F (his son), and after
his death to the "heirs of his body". F died without children. His
brothers are suing his wife claiming that when J died without children,
his share of the property reverted to them. J's wife claims that the
Rule in Shelley's Case made the grant to J in fee simple.
Issue: Does a grant of an life estate to a person with a grant of a fee
tail to his children in the same document serve to vest a fee simple
interest in the first taker?
Holding: Yes. The rule in Shelley's case applies.
Reasoning: The court reasoned that the wording of the grant made it fall
squarely under the Rule in Shelley's Case. The words "heirs of his body"
meant a fee tail - an indefinite succession to a class of persons from
generation to generation.
**Braswell v. Braswell, (1954)
Facts: A deed granted a life estate to the P.'s husband, a contingent
remainder to his children, and a reversionary interest to the grantor's
own heirs. The grant was made during the lifetime of both parties. The
life tenant died without children, but left his interest (from the
reversion to his father) to his wife, P.. The D.'s are the two other
sons of the grantor who claim that the grant gave them, as specifically
identified individuals, a contingent remainder in the land which vested
when the life tenant died without children. The P. claims that the grant
to the other brothers was void by the doctrine of worthier title, and
that they took possession by inheritance and not by purchase.
Issue: Is the grant of a remainder to the heirs of the grantor valid as
a remainder, and therefore words of purchase which grant a contingent
Holding: No. An attempt by a grantor to grant a remainder to his own
"heirs" in the technical sense of the word, is ineffective and results
in a reversion being retained in the grantor which will pass by
inheritance at his death.
Reasoning: The court reasoned that the doctrine of worthier title, which
operated to make land pass by inheritance rather than by purchase among
heirs, created a presumption that the grant was ineffective, and
resulted in a reversion. The D. attempted to rebut that presumption by
stating providing evidence in the document that the intent was to grant
a remainder to the heirs of the grantor to be determined at the death of
the life tenant, as opposed to the heirs of the grantor at the time of
death of the grantor.
Significance of Statute of Uses Problems, pg. 305,
What would be the result in the following problems both before and after
the statute of uses? Explain your reasoning.
1. O enfeoffed B and his heirs to the use of C and his heirs.
Before SofU: B held legal title, and C held equitable title.
After SofU: B held nothing, the use was executed and C had fee simple
2. O enfeoffed B and his heirs. (No consideration paid; no use stated.)
Resulting use in O.
Before SofU: O was presumed to have equitable title (resulting use), and
B held legal fee simple for the use of O.
After SofU: O held nothing, and B received both the legal and equitable
3. O enfeoffed B and his heirs for the use of C for life. Resulting use
Before SofU: B has legal title, C has equitable title for life, and O
retains the reversion of a future equitable title after the death of C.
After SofU: B has nothing, C has a life estate in fee simple, O has a
4. O bargained and sold to B and his heirs (consideration paid).
Before SofU: O retains legal title, B obtains equitable title (the use)
because there was no conveyance.
After SofU: O has nothing, B gains legal and equitable title because the
statute would execute the use.
5. O covenanted to stand seised to the use of B and his heirs. (B is a
relative by blood or marriage to O.)
Before SofU: The legal title remained in O, but the equitable title was
assumed to belong to B because of B is O's relative.
After SofU: O has nothing, B has legal and equitable title, even though
there had been no conveyance.
6. O bargained and sold to B for life and one year after B's death to C
and his heirs. Springing interest in C.
Before SofU: O retains present legal title, B equitable title, C has
nothing due to the gap in seisin, O has the reversion of equitable title
after B's death.
After SofU: B obtains a legal life estate, O has a reversion for one
year, and C has a vested remainder which is a springing interest.
7. O bargained and sold to B and his heirs but if B dies without having
children then to C and his heirs. Shifting interest in C.
Before SofU: O retains legal title because there was no conveyance, B
would have equitable title, and C would have nothing because common law
prohibited limiting a remainder.
After SofU: O has power of termination, B has fee simple subject to an
executory limitation, C has a shifting use or interest.
8. O enfeoffed B and his heirs to the use of C and his heirs to the use
of D and his heirs. Use on a use.
Before SofU: B has legal title, C has equitable title, D has nothing
because O exhausted his estate in the first grant.
After SofU: B has nothing, C has legal title, and D has equitable title
because the SofU only operates on the first use, then disappears for
9. O bargained and sold to B and his heirs to the use of C and his
heirs. Another example of a use on a use.
Before SofU: O retains legal title, B has equitable title, C has nothing
because the estate was exhausted.
After the SofU: O retains nothing, B obtains legal title, and C obtains
equitable title because the SofU only operates once on the bargain and
sale to B, and the use to C remains.
10. O enfeoffed B and his heirs to the use of C for life and on C's
death to the use of D and his heirs.
Before SofU: O has nothing, B has legal title, C has equitable title for
life, and D has an equitable vested remainder.
After SofU: B has nothing, C has a legal life estate, D has a legal
**Stoller v. Doyle, (1913)
Facts: Lawrence granted land to Frank subject to the condition that if
Frank dies before his wife dies, then Frank's wife and children would
have use for the life of Frank's wife, and at her death, to the
surviving children, otherwise to revert to Lawrence. Later, Lawrence
regranted the land to Frank, removing the conditions, and claiming to
give Frank fee simple. Frank sold the land to Stoller, who tried to sell
it to someone else, but the court judged that his title was unmarketable
because of the "contingent remainder" in Frank's children. Stoller
claims that Frank was granted a life estate, which was later merged by
the second grant with the reversion, thus destroying the contingent
remainder of Frank's children which was supported by Frank's life
Issue: Is the grant to Frank a life estate or a fee simple subject to a
Holding: "[W]here the fee in the first taker created by a deed is made
determinable, as upon the happening of a valid condition subsequent,
followed by a limitation over of the fee or use to another upon the
happening of a prescribed event, the fee or use shifts from the first to
the second taker, whereby the deed is a conveyance under the statute of
Reasoning: The court reasoned that the wording of the deed was made
under the conveyance act, which was a bargain and sale outside of common
law and falling under the statute of uses. It was not language which
granted a life estate to Frank, but it granted a fee simple subject to a
condition subsequent. Therefore Frank's children's interest was not a
contingent remainder based on a life estate, and was not destructible by
conveyance of the reversion.
**Capitol Federal Savings & Loan Assn. v. Smith, (1957).
Facts: D.s, along with other owners of a development of land, entered
into an agreement among themselves that the lots owned by them should
not be sold or leased to black persons. The agreement provided for
forfeiture or any lots or parts of lots sold to colored persons to any
of the owners who might place notice of their claims on record. The P.s
were black persons who bought a parcel of the land. They sought quiet
title to the land to free the title from the cloud of the previous
agreement. The D.s argued that the agreement created an executory
interest in the other owners, and that the title automatically vested in
them at the time the sale was made. Trial court found for P.s stating
that the agreement was not enforceable because it was contrary to the
14th amendment clause prohibiting discrimination based on color.
Issue: Was the agreement a restrictive convenant or executory interest
that could be enforced by law?
Holding: No. A grant of land in conflict with public policy is not
Reasoning: The court reasoned that even if the agreement amounted to
vesting a fee simple subject to an executory limitation in the former
owners, and an executory interest in the remaining owners, the agreement
was still invalid because it was in direct opposition to the 14th
amendment. They relied on a Supreme Court decision that stated that a
primary objective of the framers of the 14th amendment was to provide
freedom from discrimination in property rights.
**The City of Klamath Falls v. Bell, (1971).
Facts: In 1925, a corporation, now dissolved, granted a parcel of land
to Klamath Falls "so long as" it was used for a library, and to vest in
the lawful heirs of the two shareholders of the corporation if the city
ever stopped using the land for library purposes. In 1969, the city
stopped using the land as a library, and brought this action to quiet
title to the land.
Issue: Is the attempt to create an executory interest after the fee
simple determinable valid? If not, then do the D.s take under
inheritance of the possibility of reverter?
Holding: No. "No interest is good unless it must vest, if at all, not
later than 21 years after some life in being at the creation of the
interest." Gray, The Rule Against Perpetuities. Yes. An attempt by a
grantor to transfer his possibility of reverter does not destroy it.
Reasoning: The court reasoned that the grant of land for the library
could have extended indefinitely, thus the executory interest was in
violation of the rule against perpetuities because it didn't have to
vest within 21 years because the condition that would defease the grant
could have not ever happened. By operation of the rule against
perpetuities, the city received a fee simple determinable, and the
corporation retained the possibility of reverter, which was granted over
to the heirs of the shareholders because it was neither subject to the
rule against perpetuities (although it may be subject to some statutory
limitations), nor was it destroyable because the language of the grant
was such that it was clear that the determinable fee was to end
regardless of whether the executory interest would be enforced.
**In Re Estate of Michael, (1966).
Facts: In 1947, Joyce granted "King Farm" to two sets of married
couples: Harry and Bertha, and Ford and Helen. Ford was Harry and
Bertha's son. The grant contained the words that the married couples
were each to be "tenants in the entireties, with rights of
survivorship." Harry then died, and left Bertha and Ford to survive, but
not before they had another son Robert. Bertha died, and in her will she
left all her interest in "King Farm" to Robert, and $1,000 to Ford. The
two sons sought to determine what, if any, was Bertha's interest in
"King Farm". Trial court found that the original grant was a joint
tenancy as between all 4 grantees.
Issue: Was the original grant a joint tenancy or tenancy in common? If
a joint tenancy, then Bertha had no interest at her death, because it
all passed by the rule of survivorship to Ford (thus Robert gets nothing
and Ford gets the land and the money). If it was a tenancy in common,
with each couple as a single entity, the Bertha had a 1/2 undivided
interest which would go to Robert.
Holding: Tenancy in Common. Where a grant to two or more persons does
not clearly establish that the intent was to create a joint tenancy, a
tenancy in common is created.
Reasoning: The court looked to a statute of 1812 which established the
rule of construction to favor tenancy in common. In examining the grant,
the court determined that the language, "with rights of survivorship",
although it normally indicates joint tenancy, was ambiguous due to the
phrasing of the grant. It was not clear whether the intent was to grant
joint tenancy as between all of the parties, or whether the right of
survivorship applied only to the husbands and wives, internally.
**Laura v. Christian, (1975)
Facts: 4 tenants, including P. and D., each owned a 1/4 undivided
interest in "Fireside Lodge". The property had a mortgage, which was
allowed to go into default by the tenants. However, right before the
property was about to be sold in foreclosure, it became apparent that
the value of the property was going up considerably. Thus, P. paid the
balance of the mortgage alone. The other tenants, realizing the value of
the property, attempted to reimburse Laura for their share and reassert
their individual interests. The trial court found that Laura effectively
"bought out" the other interests by paying the mortgage alone, and the
other tenants waited to long to act. This D. appealed.
Issue: Can a tenant in common obtain sole title to property by paying
the balance of the mortgage, and refusing to accept contribution in the
form of a lien on the remaining co-tenants interests?
Holding: No. "The redemption or prevention from loss by one co-tenant of
common property by payment of an obligation or the purchase of an
outstanding interest, which should be discharged or purchased
proportionately by co-tenants, inures to the benefit of the co-tenants
at their option, subject to the right of contribution."
Reasoning: The court reasoned that although the D. waited until the land
appeared to be profitable before offering to pay his share, he did not
wait an unreasonable amount of time. Therefore, he was entitled to his
undivided 1/4 interest, subject to a lien to ensure his contribution to
Notes: 2. Some facts in a tenancy in common tend to indicate that the
tenants have a fiduciary duty to one another. If the tenants acquire
their interests at the same time, by the same conveyance, or if a common
debt is owed, a fiduciary relationship is assumed. However, when one
grants away his interest, the relationship does not follow. Likewise, if
the land is foreclosed, one of the tenants may purchase the whole title,
because each tenant would be assumed to have had an equal chance to bid
on the property. However, the cases are very fact driven. Much depends
on how much time has passed before the other tenants assert their
interest by offering contribution. 3. A tenant who receives more than
his fair share of rent from a third person is accountable to the other
tenants, however he may retain fair value of his labor in collecting the
rent. However, one tenant may not be accountable in rent to the others
for his own enjoyment or occupancy of the property, unless there is
something more than forbearance on by the other tenants. For instance,
if one tries to exclude the others.
**Goergen v. Maar, (1956).
Facts: The P. was the 4/16th owner of a piece of property of which the
D. was a 3/16th owner. The D. was in sole possession of the property,
and had collected rents, and paid taxes on the property from 1943-1954.
The P. wished to have her share of the proceeds from the rents. The D.
claimed the action was barred by the statute of limitations. The trial
court found for P., and entered a personal judgment against the D. for
any amount that she could not produce in paying P. her fair share.
Issue: Does the statute of limitations bar the P.'s action to recover
rents from the other tenant on a commonly owned property?
Holding: No. "In a partition action, the court may adjust all the
equities of the parties in determining the distribution of the proceeds
of the sale." "The court may take into account the moneys received and
the moneys expended by any of the co-tenants throughout the whole period
of the co-ownership of the property."
Reasoning: The court reasoned that the statute of limitations did not
apply, because a separate action for accounting of the rents was not
required. The excess rents collected became a lien against the interest
of the co-tenant who collected them. Thus, when the P. asked for payment
of her share of the back rents, the action was one of partition.
Furthermore, the statute of limitations did not apply to the personal
action against the D. for any balance she could not produce because the
statute did not start to run until the partition of the property. This
is because until the property were partitioned, there existed between
the parties "mutual, open, and current accounts" since the D. had been
paying the taxes on the property, which were a common debt owed by all
of the co-tenants together.
**Palmer v. Flint, (1960)
Facts: The bank made a grant to husband and wife Nathan and Alice, "as
joint tenants, and not as tenants in common, to them and their assigns,
and to the survivor, and the heirs and assigns of the survivor ." Later,
Alice divorced Nathan, and executed a quitclaim deed to convey her
interest to Nathan. Nathan then conveyed to a strawman who reconveyed
the land to Nathan and his sister, Roxa, as joint tenants. The ex-wife,
Alice Flint, sued to get declaratory judgment as to the state of the
title. The trial court found that the original grant conveyed only a
joint life estate to Nathan and Alice because the words of the first
grant did not put "and their heirs" after the initial grant to signify
fee simple. The trial judge further said that the survivor language
granted a contingent remainder in fee simple to the survivor of Nathan
and Alice. Thus, the trial judge found that the quitclaim deed did not
transfer any of Alice's interest to Nathan, because all she had was a
contingent remainder after the life estate with the condition precedent
that she survived Nathan.
Issue: Is the original grant one of joint tenancy in fee simple?
Holding: Yes. Where a deed clearly expresses intent to grant a joint
tenancy, it shall be effective to create a joint tenancy. A fee simple
title is presumed to be granted unless it appears from that grant that a
lesser estate was intended.
Reasoning: The court reasoned that it was clear that the grant intended
a joint tenancy in fee simple. The creation of a joint life estate with
contingent remainder to the survivor was presumed not to be the
intention of the parties because the grant did not mention a reversion
or remainder or a life estate. Therefore, when Alice executed the
quitclaim deed, she vested fee simple in Nathan.
**People v. Nogaar, (1958).
Facts: Elaine and Calvert were a married couple who were granted an
estate as joint tenants in fee simple. Later the two separated, and
Calvert, without the permission or notice of Elaine, executed a mortgage
to his parents of his interest in the land for $6,440. Calvert died. The
state later commenced an action to condemn the property, and it became
apparent that Calvert's parents might be able to get money for 50% of
the sale price of the land. The trial court found that the parents, as
the mortgagee, were entitled to 50% of the balance of the value of the
Issue: Is a mortgage upon real property executed by one of two joint
tenants enforceable after the death of that joint tenant? In other
words, does a mortgage executed by one of the tenants transfer that
joint tenant's title to the mortgagee, thus breaking the joint tenancy,
and making the mortgagee a tenant in common with the remaining joint
tenant, subject to being defeased by payment of the mortgage?
Holding: No. In California, a mortgage does not make a change in title
or possession, but only puts a lien against the property.
Reasoning: The court reasoned that the mortgagee's note was payable upon
demand. Thus the mortgagee could have foreclosed during the life of the
mortgagor. However, they held the note, risking that the mortgagor might
die first, but if his wife died first, the whole property would go to
Calvert, and so they could foreclose on the entire property. The court
reasoned that to hold otherwise would be to defeat the right of
survivorship of a joint tenancy because if the mortgagor died, the
cotenant would not get the full title by survivorship that they were
granted. The mortgage simply ceased to exist at Calvert's death, because
Calvert's interest ceased to exist.
I. Tenancy by the Entireties
A. Neither husband nor wife is recognized as an individual owning an
1. Neither can effect a severance of the interest by conveying
unilaterally to a third party.
2. Neither can compel a partition.
B. Terminated when:
1. The spouses jointly convey to a third party.
2. The spouses divorce (becomes tenancy in common).
C. Creditors may only collect against the land if the debt is the legal
obligation of both spouses.
1. A debt incurred by one spouse is not collectible against the other.
2. Protects the surviving spouse from other's debts.
**D'ercole v. D'ercole, (1976)
Facts: The P. is the separated wife of D.. Her claim states that the
common-law tenancy by the entireties is unconstitutional because it is
inherently pro-male, giving the husband exclusive and total control of
the property during his lifetime. The P. is seeking an enjoinder of the
D. from using the property exclusively while they are still married, and
she does not want divorce (which would put an end to the tenancy by
Issue: Is the tenancy by the entireties sexual discrimination because
the husband is given unilateral control of the property during his own
Holding: No. Tenancy by the entirety, being but one option open to
married persons seeking to take title in real estate, is
Reasoning: The court reasoned that the P. knew the bargain she was
entering into at the time the tenancy by the entireties was created. By
giving away her right to exercise control of the property during her
husband's life, she gained the security of knowing that the estate could
not be taken from her by her husband's creditors. She gained an
indefeasible survivorship. Furthermore, the court stated that the
tenancy did not discriminate against women because partition was equally
unavailable to the husband. Thus, absent a showing of coercion, she was
held to the bargain.
** Cook v. University Plaza, (1981)
2. Facts: The P. is a member of a class of students who resided at the
D.'s dormitory house at Northern Illinois University. The P. is suing
for interest on a security deposit in accordance with a local landlord-
tenant statute. The P. signed a written document provided by the D.
which gave the P. certain rights to board, room, parking, etc., but did
not claim to give right of occupancy of a definite space. It stated that
the P.'s rights were that of use, and that the P. could be moved from
room to room according to the judgment of the D.
3. Procedural Posture: The lower court sustained the D.'s demurrer,
claiming that the P. did not state a cause of action because a landlord-
tenant relationship did not exist; it was a contractual one for
4. Issue: Is the dormitory document a lease even though it does not
contain a provision passing a possessory interest in a specific
5. Holding: No. For a document to be sufficient to be a lease it must
contain a definite provision as to the extent and bounds of the property
to be used.
6. Reasoning: Although the document stated that it was not creating a
landlord-tenant relationship, the court stated that the effect of the
document was to be determined by the legal effect of its provisions. It
did not define a particular bound for possession by the P., it merely
stated that the P. was entitled to remain in the room assigned, and that
he may be moved. The court found this to be the determinative factor
that the parties did not intend to enter into a landlord-tenant
7. Notes: 1. If the document would have passed a possessory interest in
a definite property, subject to the provision that the possession might
be changed to a different room, then the P. would have had a better case
for landlord-tenant relationship. 2. Additionally, leases for greater
than one year must be in writing in most states or they violate the
statute of frauds and are terminable at any time by either party.
Delivery of the actual property may also be a requirement to create a
lease estate so that the interest in the property is not conveyed until
the parties manifest their intent. A simple signing of a document by
parties not in the presence of one another might not be sufficient. 3.
Although there is a contractual relationship between the lessor and the
lessee as soon as they sign the lease, the estate may not take effect
until the tenant actually takes possession. Thus, a tenant might be
liable for breach, but not rents, if he breaks the lease before moving
in. At the time the lease is signed, the tenant obtains a right of entry
(a future interest) which becomes possessory when the term commences and
the tenant enters the premises.
** Womack v. Hyche, (1987)
2. Facts: The P. is the owner of "Camp Waxahatchee", which she rented to
the D. in a written document combined with some oral additions. The
written document claimed that the lease was for $300/yr. "with the
option to renew the lease as long as the camp is run as a business for
profit." The parties began to have differences of opinion after a few
years as to the exact meaning of the lease, so the P. brought action for
a declaratory judgment to remove the D., claiming that the lease was
void as a lease for years because it was indefinite.
3. Procedural Posture: The trial court found for the D., finding the
lease to be for a term of 1 year, with the option to renew. The P.
appealed to this court.
4. Issue: Is the language of the lease document definite enough to
create a tenancy for years?
5. Holding: No. A tenancy for years must have a definite beginning and
ending to be valid. It is not the certainty of the happening of the
event, but the certainty of the date on which the lease will terminate
that is the determinative factor.
6. Reasoning: The court reasoned that the date upon which the camp would
stop making money, or stop being operated for profit, was unknown to the
parties. Therefore, the document was ineffective to create a lease for
years because of indefiniteness, but rather created a tenancy at will,
which could be terminated by the P.. The court stated that a year to
year renewal will not create a perpetual tenancy for years unless that
is the clear intent of the parties. They found that under these facts,
it was not the clear intent of the parties at the time of the signing.
7. Notes: 1. A periodic tenancy continues year to year or month to
month, or other specified period, until proper notice of termination is
given. Most states have statutes that determine the amount of advanced
warning required to terminate a lease absent some specific term in the
lease. 2. Leases which appear to create a perpetuity are universally
disfavored, and presumed to create an option for a single renewal.
** Adrain v. Rabinowitz, (1936)
2. Facts: The P. is a tenant of the D. in a store. The P. and D. signed
a document stating that the P. would lease the premises beginning on a
specified date. In preparation for that date, the D. made purchases of
merchandise he intended to resell. However, when the date came, the
previous tenant failed to vacate the premises, and the D. was forced to
take legal action to remove him. Thus, the P. was unable to take actual
possession until some time later. The P. is suing for back rent and lost
3. Procedural Posture: The trial court found for P., and awarded damages
based on lost profits, as well as a refund of back rent.
4. Issue: Is a tenant entitled to actual possession as well as a legal
possession on the date of the beginning of the lease term?
5. Holding: Yes. Where a lease term is to begin in the future, there is
an implied undertaking by the lessor that the premises shall be open for
the lessee's entry, legally and actually, when the time for possession
under the lease arrives.
6. Reasoning: The court reasoned that the D. realized her legal
obligation to make the premises available to the P. by taking legal
action to remove the holdover tenant. They reasoned that the lease did
not just create the right to sue, but the right to take actual
possession. However, they failed [rightly] to award damages based on
lost profits during the meantime because these were risks to which the
tenant was already subject.
7. Notes: 1. Many states have statutes requiring delivery on the first
day of the lease term only in residential leases, not commercial leases.
2. An argument in favor of the landlord not being responsible for the
holdover tenant is that on the first day of the term, the tenant becomes
the legal possessor, and the landlord no longer has the right of
possession. Therefore, the holdover is a wrong against the tenant, not
the landlord. Furthermore, it can be viewed as one of the risks
contemplated by both parties at the time of contract formation, so
unless otherwise specified, it falls where it may. 3. It is generally
accepted that a tenant is no longer required to pay rent at all when the
landlord wrongfully evicts him from a portion of the property, for
instance by erecting a wall. This is based on the fact that the rent
obligation is based on the enjoyment of the entire property, and cannot
be reduced unilaterally by the landlord. 4.
** Commonwealth Building Corp. v. Hirschfield, (1940)
2. Facts: The D. was a tenant of the P. under a lease that expired on
Sep. 30th. The lease also stipulated that if the tenant heldover, that
he would be liable for double the rent. The D., acting in good faith,
was unable to get all of his furniture out of the apartment before
midnight on the 30th, and so removed the last pieces in the morning. The
P. then brought this action for an entire second year's rent under the
common law rule that a holdover tenant may be held as a trespasser or as
a tenant for another similar term.
3. Procedural Posture: The trial court jury found for the P. for $1,100,
which was either 4 months of regular rent or 2 months of double rent.
Both parties moved for judgement not withstanding the verdict. The judge
refused to grant the motion, and the D. appealed.
4. Issue: Is a landlord entitled to hold a holdover tenant as a tenant
for another term if the tenant has made good faith efforts to move out
on time, but was delayed slightly due to forces beyond his control?
5. Holding: No. Where a lease provides for the contingency of a holdover
tenant, and the clause is held to be valid, the parties are bound to
follow it notwithstanding common law rules to the contrary.
6. Reasoning: The court stated that the common law rule for holdover
tenants was applicable in two cases: 1) where the tenant's actions are
such that they reasonably create a reliance in the mind of the landlord
that he intends to holdover for the second term, and 2) as a matter of
law in quasi-contract necessary to prevent unjust enrichment of the
tenant and loss to the landlord. However, the facts of this case do not
show an intent on the part of the tenant, nor a situation demanding
quasi-contractual justice. In fact, the facts are quite the opposite.
Furthermore, since the lease itself provided for exactly this kind of
contingency, the landlord could certainly not claim any more than that.
7. Notes: 2. During the interim, the holdover tenant is referred to as a
"tenant at sufferance" and a wrongful possessor. He is distinguishable
from a trespasser only in that the entry into possession was a lawful
** United States National Bank of Oregon v. Homeland, Inc., (1981)
2. Facts: The P. is the owner of a commercial office building in which
he rented a space to the D. for a term of 5 years. The D. abandoned the
premises some time later, and the P. eventually re-let the property to
another tenant for a longer term and a higher price. The second tenant
also defaulted. The P. then could not rent the premises until some time
after the original 5 year lease to the D. had already expired. The P.
brought an action to recover damages equalling the difference between
the monthly rent rate of the P. until such time as the premises were
finally rented for good, and the amount that they actually did collect
from the second tenant before it defaulted. The P. made good faith
efforts to mitigate the damages by trying to re-let the premises.
3. Procedural Posture: The trial court found for the P., for an amount
equal to the difference between the amount the D. still owed on its
lease and the amount that the P. recovered from the second tenant. D.
4. Issue: When a tenant of commercial premises abandons the premises
before the end of his lease, and the landlord re-lets to another tenant
for a period of time longer than, and for money than the original lease,
is the original tenant's obligation destroyed as a matter of law?
5. Holding: No. The tenant, by abandoning the property before the
expiration of the term of the lease, forfeits his estate in the real
property, but remains liable for damages for breach of contract. In
determination of the remedy for breach, the landlord is entitled to the
difference between the market price, and any rents collected by
subsequent tenants during the term of the original lease, with the
requirement that the landlord mitigate the damages in good faith.
6. Reasoning: The court reasoned that the landlord did not destroy the
contractual obligation of the original tenant by re-letting the premises
under different terms. To do so would be to limit the marketability of
the premises. However, the landlord was required to mitigate damages,
and in any case, could not claim more than the rent due on the original
lease, regardless of when the premises was actually re-let.
7. Notes: 1. To say that an re-letting of the premises after abandonment
does not affect the obligation of the tenant to pay rent is to say that
the former estate continues. It could be conceived that the landlord is
acting as an agent of the tenant in re-letting the premises, but this
would not work because then the landlord would be accountable to the
tenant for excess rents. A better way to handle it is to say the
landlord is exercising a power conferred by law to deal with the
abandoned estate. If the landlord combines the premises with other land,
and then re-lets the whole, it is not possible to say that the former
estate continues because it conflicts with the new estate. 2. If a lease
has a clause which provides that the tenant must pay damages upon
abandonment or eveiction, the landlord may not be able to recover until
the end of the term of the lease unless the lease is carefully drafted
otherwise. This is because the tenant is no longer under obligation to
pay rent, only to pay damages. Damages are not known until near to the
end of the term. 3. One court placed the ability to determine future
damages at 10 years.
** Blackett v. Olanoff, (1977)
2. Facts: The D. is the former tenant of the P. landlord. The D. rented
an apartment from the P. adjacent to another property owned by the P.
which was used as a bar. The music in the bar was so loud that it
prevented the D. from using his apartment. It prevented sleep and
conversation. On several occasions, the D. complained to the landlord
about the noise, and it would subside for a while. The lease to the bar
expressly stated that the noise level should be kept to a level low
enough that it would not bother the surrounding tenants. The D.,
claiming constructive eviction, moved out before the expiration of his
term, and the P. brought this action to recover the remaining rent.
3. Procedural Posture: The trial court found for the tenants, and the P.
4. Issue: Is the landlord barred from recovery because of constructive
eviction, even though the noise was not made by the landlord himself,
but rather by another tenant over which the landlord had control, but
failed to control?
5. Holding: Yes. When a landlord fails to take action to prevent an
impedance to his tenants' right of quiet enjoyment, and it is within the
power of the landlord to control the potential impedance, and the
landlord knows that if he does not take action that the tenants' right
of quiet enjoyment will probably be impeded, the tenant is released from
the obligation to pay rent under the lease due to constructive eviction.
6. Reasoning: The court reasoned that because the bar's lease
specifically provided against noise, and because the past attempts to
control the noise had temporarily worked, the landlord could control the
noise. Since he did not control the nnoise, and it was a natural and
probable consequence of not controlling the noise that it would
interfere with the quiet enjoyment of the other tenants, the landlord
could not recover because there was a constructive eviction.
7. Notes: 2. A tenant who is constructively evicted may recover damages
if they can show that the landlord's intrusion, or lack of repair,
caused the tenant to lose profits. This is true even if the tenant
elects to remain. The tenant can continue to recover damages as long as
the condition exists and their leasehold estate exists.
** Brown v. Southall Realty Co., (1968).
2. Facts: Brown is a former tenant of Southall. The room she rented was
a basement in a complex which did not meet the local building codes.
Southall knew of the code violations, and the owner of the building did
as well. The owner even signed a document stating that he would fix the
code violations before renting out the premises. Because of these
violations Brown moved out, and Southall brought suit to recover
possession because of nonpayment of rent.
3. Procedural Posture: Brown contended that the lease was invalid as a
contract because it was against the local statutes to lease a property
which was not "clean, safe, and sanitary." The trial court, however,
found for the P.. appealed.
4. Issue: Is the lease valid even though it violates a statute enacted
for public policy purposes?
5. Holding: No. Where statutes exist to prohibit the leasing of premises
that do not meet building codes, a lease for a premises which does not
meet the local building codes is invalid and illegal.
6. Reasoning: The court reasoned that the legislative intent in
providing the building codes was to promote the health of the occupants
of the neighborhood. Thus, the public policy outweighed the freedom of
the parties to enter into a contract which waived those laws. To hold
otherwise would be to undercut the very reason that the statutes were
7. Notes: In D.C., a tenant under a lease which is invalid due to
violation of housing codes is a tenant at sufferance rather than a
trespasser. Thus, a landlord could bring an action under quasi-contract
to collect rents if the tenant remained. However, in other
jurisdictions, generally the landlord cannot recover rents when the
tenant remains. [In fact, to do so would be to undercut the code. It
would make sense that the landlord would be required to remove the
tenant as a trespasser.]
** Javins, Saunders, and Gross v. First National Realty Corp., (1970)
2. Facts: The Appellants are tenants in the building owned by the Realty
corp. The buildings were rented for a term, but at some point during the
term, they became constructively uninhabitable due to needing several
repairs to correct housing code violations. The Appellants refused to
pay rent for April, and the Realty corp. is suing to recover possession.
The Appellants did not include a counterclaim for damages, but simply
contend that the housing code violations are an equitable defense which
entitle them to a set off equal to the amount of the rent.
3. Procedural Posture: The lower court ruled that evidence of housing
code violations was inadmissible when offered as a defense to an
eviction action for nonpayment of rent. This court reverses.
4. Issue: Are housing code violations a breach of implied warranty
entitling the tenants to withhold rent?
5. Holding: Yes.
6. Reasoning: The court reasoned that the ancient property-oriented
rules surrounding leases were outdated, and had no bearing on the
present housing situation in the inner city. They reasoned that today
people rent apartments, not for an interest in the land, but for a
package of goods and services which includes adequate heat, lighting,
and ventilation, etc. Low income tenants, even if they wanted to
initiate repairs themselves, would be unable to raise the money
necessary because they could not borrow against the property.
Furthermore, there is a bargaining inequality between the landlord and
the tenant which is protected by the housing codes. The duties imposed
by the housing regulations cannot be waived or bargained out of.
However, the court required the tenants to pay rent into the court
registry in anticipation of retrial to be divvied up according to the
7. Notes: 1. Kentucky doesn't follow the rule above. Rather, they follow
the common law traditional rule that unless repairs are covenanted in
the lease, they are not implied. 2. Most other states follow the rule in
Javins, and there are statutory warranties of habitability encoded in
the Uniform Residential Landlord and Tenant Act (URLTA). 3. The tenant
probably must pay rent into the court registry, and if he does not do
so, the court might award possession to the landlord on the assumption
that the tenant did not have a good faith claim of right. 5. Public
housing projects provided by the government do not involve an implied
warranty of habitability because they are not commercial, and they are
assumed to represent the national standard for habitability. [self-
defining?]. 6. Implied warranty may be contracted out of unless it is
unconscionable or contrary to public policy.
Meyers, The Covenant of Habitability and the American Law Institute,
I. The mandatory repair requirement put on landlords by the Restatement
of Property may not have the result of imroving the balance of power
because the rich landlord might simply avoid the less profitable housing
A. The resulting economic consequences are likely to be:
1. Some proportion of the substandard housing will be upgraded, and the
landlord will pass the cost onto the tenant. Thus, some tenants will be
unable to afford the increase, and be forced out, increasing the demand
for low income housing.
2. Some of the housing will be upgraded without passing on the cost to
the tenant, but low income tenants as a class would not be benfitted.
3. Some of the housing will be abandoned by the landlord in cases where
it would be more economical to abandon the property than to make the
B. Housing codes are more preferable to the Restatement because:
1. The enforcement of the codes is discretionary, and in the hands of
public officials, and
2. The housing codes to not provide remedies such as rent abatement or
withholding which preven the landlord from using the rent money for
** Edwards v. Habib, (1969)
2. Facts: Edwards rented an apartment on a month-to-month basis from
Habib. Shortly after moving in, Edwards reported several code
violations, which resulted in the gov't forcing Habib to correct them.
Apparently upset for her squealing on him, Habib gave Edwards the 30-day
statutory eviction notice required for her month-to-month tenancy.
Edwards remained in the property, claiming that she could not be evicted
in retaliation, and Habib sued to regain possession.
3. Procedural Posture: The lower court found for Habib, holding that a
private landlord was not required to give a reason for evicting a
tenant, and was free to do so for any reason at all.
4. Issue: May a landlord evict a tenant in retaliation for reporting
Housing Code violations?
5. Holding: No.
6. Reasoning: The court reasoned that to allow this action would
severely cut into the effectiveness of the housing codes because a large
portion of the violations were reported by tenants themseves. The
tenants would be motivated not to report the violations because if they
did, they would lose their shelter, and substandard shelter is better
than no shelter. The court made an exception to the general "for no
reason" rule in this case because it would be contrary to public policy.
7. Notes: 1. In Robinson v. Diamond Housing Corp., the landlord
attempted to evict a tenant for no-payment of rent. The tenant
successfully defended on the grounds of housing code violations similar
to Brown. The landlord then brought a second action claiming that if
there were housing code violations at the time of the lease, then the
lease was void. The tenant forwarded the defense that she was being
evicted in retaliation. The landlord complained that he would not ever
be able to regain possession because he was unwilling to repair the
premises, and instead wanted to take the premises off the market
permanently. The court held that to allow this would provide a means
around the anti-retaliation law. The court stated that the landlord
could regain possession if he made the repairs and then evicted for an
unrelated reason, or if he could show that there was unfeasible to make
repairs. 3. To allow tenants to raise the issue of retaliatory defense
in the summary eviction proceeding makes it a longer process, thereby
defeating its purpose. It leads landlords to want to write self-help
clauses into their leases. However, these clauses are normally held to
be void because they would undermine the anti-self-help statutes.
** Orange County Taxpayers Council, Inc. v. City of Orange, (1980)
2. Facts: The P.s are a landlord group. The City enacted a rent control
statute that provides for small rent increases each year, only if the
landlord can make a showing that his building is in substantial
compliance with housing codes. The P.s claim that this clause in the
statute is unduly restrictive of their property rights.
3. Procedural Posture: The trial court found for the D.s, stating that
the landlords could not make the necessary repairs unless they raised
the rents, but they could not raise the rents unless they made the
repairs. The Court of Appeal reversed.
4. Issue: Is a rent control ordinance which requires the units to be in
substantial compliance with the housing codes before raising rent valid?
5. Holding: Yes.
6. Reasoning: The court reasoned that the rent control ordinance was
enacted as a local police measure to enable tenants to find safe and
affordable housing. They stated that the rent control ordinance would
only be invalid if it prevented the landlord from making a "just and
reasonable return" on his property, which this one did not. The rent
control ordinance would have no bite if the landlord could allow the
units to deteriorate and still raise the rent. The purpose of requiring
substantial compliance before issuing permission to raise rent is to
insure that the tenants do not have to pay for the repairs that they
were already entitled to.
7. Notes: 2. In Pennell v. City of San Jose, a U.S. Supreme Court case,
Justice Scalia stated that the a City rent control ordinance can not
include a term which requires consideration of the hardship of the
tenant. This is because the once a landlord has minimized his profits
such that he is only receiving a reasonable return, he is no longer the
cause of the problem of the housing shortage any more than the grocer or
department store owner is. In this case, he continued, the city was not
regulating rents in the relevant sense of preventing rents that are
excessive, but rather using rent control to establish a private welfare
program at the expense of the landlord who is no longer blameworthy.
President Reagan's commission on housing claimed rent control was a
severe disincentive to investment and mortgage lending which would
ultimately result in the deterioration of the existing housing.
Moreover, it was an income redistribution from the landlords to the
tenants by implicitly taxing the landlord for the benefit of the tenant.
** Marina Point, Ltd. v. Wolfson, (1982)
2. Facts: The P. is the landlord of an apartment complex where the D.
resides. When the D. moved in, the lease stated that the complex did not
rent to families with minor children, however, there were several
families living there. After a while, the complex decided to rent
exclusively to childless families, and notified the D. that they would
not be renewing their lease. The D. continued to stay at the complex,
and the P. brought an eviction action.
3. Procedural Posture: The trial court found for the P., stating that
the Unruh act did not apply to families with children as a class, and
that the landlord was reasonable in his decision not to rent to children
because the property did not have any facilities expressly for children,
and there was evidence that children reduced the value of the property.
4. Issue: Is the landlord's policy of discriminating against children a
violation of the Unruh Act, and therefore illegal?
5. Holding: Yes.
6. Reasoning: The court reasoned that the Unruh Act was meant to prevent
arbitrary discrimination against any class of persons at any business
establishment. The landlord's decision to exclude children as a class
was not allowed because, although they could evict specific trouble
families, they could not exclude all children simply because "as a
whole" they were more likely to commit misconduct than some other class
of persons. Furthermore, the complex did not fit in with the description
of a business that could harm children (like adult bookstores or bars).
To allow this to succeed would be to allow a landlord to successfully
get around the Unruh Act by simply adding some incidental facility which
posed a special danger to an undesired group of potential tenants.
7. Notes: 1. The Fair Housing Act of 1989 prohibits discrimination based
on "familial status", meaning one or more persons under the age of 18
living with the tenant as a parent or legal guardian. 2. Discrimination
includes prohibiting the handicapped from paying for improvements to the
property which would help their enjoyment of the premises, as long as
they agree to restore the premises to their original condition at the
end of the tenancy. 3. The Fair Housing Act was held to not specifically
forbid the practice of only renting to tenants whose net weekly income
is more than 90% of the rent, even though in practice that resulted in
screening out more blacks than whites, unless a racially discriminatory
motive can be established.
** Sargent v. Ross, (1973)
2. Facts: The P.'s daughter died when she fell from a stairwell at the
D.'s building. The D. constructed the stairwell so that it was
apparently excessively steep, and the rails were too low, so that a
person could easily lose balance and fall over the railings to the
ground. The P. brought a negligence action.
3. Procedural Posture: The D. relied on the common law exception of
landlords for tort damages except under special circumstances, including
exclusive control, and negligent maintenance. The trial court found for
4. Issue: Is a landlord immune from liability for tort damages due to
the traditional doctrine of caveat emptor?
5. Holding: No. A landlord, like other persons, must act as a reasonable
person under all the circumstances.
6. Reasoning: Rather than try to fit the P.'s action into one of the
traditional exceptions of exclusive control or negligent maintenance,
the court did away with the general landlord immunity because it was
born out of the dark ages and no longer applied to the landlord-tenant
7. Notes: Although at least one court has imposed strict liability for
landlords, most courts do not, holding the rationales behind strict
liability do not apply.
** Jaber v. Miller, (1951)
2. Facts: Jaber leased a commercial property from its owner. The lease
contained a provision that stated that the rent would not be due if the
premises burned down. Jaber went out of business, and transferred his
lease to the person from which Miller obtained it. The transfer
purported to be an assignment, with the original rent to be owed
directly to the owner, and 4 installment payments of $700 each to be due
to Jaber. Miller was unable to pay the 4 payments of $700, and so split
the payments into monthly installments. The property burned down, and
Miller tried to cancel the installment payments.
3. Procedural Posture: Miller claimed that the payments were rent owed
from a sublease, and thus they vanished with the original lease. Jaber
claimed that the payments were installments on a contractual assignment,
not rent under a sublease. Thus, since the assignment contract did not
contain a provision in case the property burned down, the installment
payments were still due. The lower court found that the nature of the
estate created by the transfer was a sublease, not an assignment.
4. Issue: How should the significance of a transfer of a lease be
5. Holding: The intention of the parties at the time of the lease
formation is the determining factor in whether a transfer of a lease is
a sublease or an assignment.
6. Reasoning: The court reasoned that the common law distinction calling
all transfers of the entire interest for the entire remainder of the
term assignments, and those for less than the entire term (even one hour
less) subleases, was an arbitrary distinction based on feudal property
rights which was no longer applicable to modern times. The intent of the
parties was a better measure, resulting in fewer injustices. The court
reasoned that the transfer in the instant case was an assignment,
because all of the circumstances indicated that was the intention of the
parties at the time of the transfer.
** A.D. Julliard & Co. v. American Woolen Co., (1943)
2. Facts: American Woolen obtained title to a property by means of
assignment of a lease. American Woolen then re-assigned the property to
the Reo Realty Company, who became insolvent and could no longer pay
rent. The plaintiff claims that American Woolen is liable for the unpaid
rent of the dissolved Reo Realty corporation as a matter of law. The
American Woolen company claims that they transferred all rights of
possession and title to the Reo Realty corporation, and no longer
enjoyed any benefit from it, therefore they are not liable for rent.
3. Procedural Posture: The trial judge found for the defendant, holding
that an assignee of a lease does not, as a matter of law, become bound
to pay rent for the remainder of the lease term.
4. Issue: Does an assignee of a lease become bound as a matter or law to
pay rent for the remainder of the lease term, even if he re-assigns it
5. Holding: No.
6. Reasoning: The court reasoned that the original tenant is the only
party liable to the original owner for the rent for the entire period of
the lease. If the original tenant assigns the lease to another, then the
assignee becomes primarily liable for the rent, and the original tenant
becomes secondarily liable. However, the assignee can end his obligation
completely by re-assigning the property to another. The original tenant,
however, remains secondarily liable. The assignment between the original
tenant and the assignee is a new contract that does not take on the
obligations of the original lease. In order for an assignee to become
liable for rent for the remainder of the term (as the tenant is) such a
term must be in the new contract. The law does not impose the obligation
** Childs v. Warner Brothers Southern Theaters, Inc. (1931)
2. Facts: Berkeley owned a movie theater which it leased to Craver. The
lease stated that the lessee and his assigns covenanted to pay rent, and
that it could not be reassigned without the consent of the owner. Craver
then assigned his lease to the defendant, Warner Bros. with the consent
of Berkeley. Berkeley then sold the property to the plaintiff, Childs.
Warner Bros. then re-assigned the theater to Carolina without the
previous consent of the new owner, Childs. Warner Bros. notified Childs
of the re-assignment, and Childs responded by stating that they still
considered Warner Bros. the lessee of the property because they did not
give prior consent. Carolina then went out of business, and Warner Bros.
refused to pay, claiming that they no longer had any interest in the
3. Procedural Posture: The trial court found for the plaintiffs, and the
4. Issue: When a lease contains a provision that it should not be re-
assigned without the express permission of the owner, does a subsequent
grant of permission to re-assign constitute a complete waiver of that
condition for the future assignees?
5. Holding: No. Where an original lease states that the terms are
binding upon the tenant and his assigns, the lessor does not waive the
conditions of the lease, and does not consent that thereafter any
subsequent assignee may escape the conditions of original lease merely
by allowing the original tenant to make an assignment of the lease.
6. Reasoning: The court reasoned that the condition of requiring express
permission for reassignment was not a single condition applying only to
the first tenant. Furthermore, the plaintiff specifically notified the
defendant that they would continue to consider them the lessee.
7. Notes: 1. The court's reasoning was not thorough, but it may have
reached the appropriate result. A better theory might be that the
assignment was valid, but that it violated the condition of requiring
express permission. Thus, the defendant should be liable for breach of
contract, and the damages would be equal to the unpaid rent. 2. A lessor
who requires express permission to be obtained before assignment may
have to provide a good faith reasonable justification for withholding
information in the case of a residential lease, where the bargaining
power is lopsided. However, in the case of the commercial lease, the
same reasoning may not be applicable because the parties are on a more
** Mitchell v. Castellaw, (1952)
2. Facts: There are 3 lots of land adjoining eachother. One is used for
a filling station, and has a driveway which extends onto the lot
directly next to it. The original owner of all 3 lots, Mrs. Stapp,
granted the adjoining lot to Smith and his wife. The grant contained a
provision that the grantee, "their heirs or assigns, shall not build or
permit any one else to construct any type of building or anything else
on the portion of lot [where the driveway was] and that the [grantee]
shall have the right to use this part of said lot as a driveway." This
lot was eventually sold to Mitchell.
3. Procedural Posture: Castellaw brought suit to compel Mitchell to
continue to allow him the easement for the driveway into the filling
station. Both lower courts found for Castellaw and let the easement
4. Issue: Is the wording of the grant sufficient to grant an easement to
all future owners of the filling station?
5. Holding: Yes. Where the language of a grant of easement is
technically flawed, it shall nonetheless be granted unless there is a
clear indication that the grantor could not have intended it.
6. Reasoning: The court reasoned that although the language was flawed
because the grant appeared on its face to be repugnant to the conveyance
because it simultaneously provided for conflicting uses of the same
physical property, the fact that the conveyance was general, and the
easement exception was specific, led the court to believe that it was
intended. Thus, even though the easement clause did not say
"notwithstanding any other provisions of this document", it was still
valid. Examining the surrounding circumstances, such as the driveway
being adjacent to the land, and that it had always been used for a
driveway, the court found that it should remain as intended.
** Midland Valley Ry. Co. v. Arrow Industrial Mfg. Co., (1956)
2. Facts: Arrow acquired a property that is adjoined by Midland's
railroad. The previous owner executed a "Right of way deed" to Midland
which purported to "convey...a strip of land for a right of way over" a
specific plot detailed in the instrument. The deed was not in statutory
form for the granting of easements or fee simple properties.
3. Procedural Posture: Midland claims that it owns the land of the grant
in fee simple. Arrow contends that the grant is only an easement, and
upon abandonment, reverts back to Arrow. The lower court found that it
was an easement.
4. Issue: Is a grant which conveys a strip of land which is well
defined, rather than a right of way over a strip of land a conveyance of
a fee simple estate rather than an easement?
5. Holding: Yes.
6. Reasoning: The court reasoned that a previous case, Higgins v.
Oklahoma was controlling. In Higgins, the deed words were "grant,
bargain, quitclaim, and relinquish" which indicated a fee simple grant.
The court reasoned that since the object of the verb "convey" in the
specific grant was "a strip of land" (and not a "right of way over a
strip of land") that the grant was therefore in fee simple. [This
apparently ignores intent of the grantor, who probably did not wish to
grant a fee simple.]
7. Notes: 1. Other cases have found the opposite result on substantially
the same facts. One practical reason was that railroads customarily were
only given power to obtain easements. Furthermore, the railroad should
not be able to re-grant the land for some other purpose. 2. In some
states, it matters whether the grant was an easement, or a fee simple
determinable, because there may be a statute of limitations on the FSD
which bar the condition after a certain time which does not apply to
** Baseball Publishing Co. v. Bruton, (1938)
2. Facts: Baseball contracted with Bruton to place an advertisement sign
on the wall of his building for $25/year. The contract stated that
Baseball had "the exclusive right and privilege to maintain an
advertising sign...on the wall of" Bruton's building. Bruton returned
every check payment, and later had the sign taken down.
3. Procedural Posture: Baseball sued for specific performance.
4. Issue: Is the grant a license, which would not be enforceable by
specific performance because a license by its nature is revocable at any
time by the licensor as long as he pays damages?
5. Holding: No.
6. Reasoning: The court reasoned that since the document granted an
exclusive right to post and maintain the sign, it granted more than a
license. It granted an easement which could be enforced by specific
performance because it was a land interest. It was an easement in gross.
** Stone v. Zucker, (1906);
2. Facts: The P. granted a parol (verbal) license to the D. to use a
right of way on his land to construct an irrigation aqueduct. After the
D. had spent considerable time and money erecting the aqueduct, the P.
decided to revoke the license.
3. Procedural Posture: The P. is suing to have the D. declared a
trespasser, claiming that the D. may have been unwise in expending such
effort in reliance on a revocable license, but that there should be no
equitable recovery for his reliance because the rule should be
unflexible. The lower court found for the D.. The P. appeals to this
4. Issue: Is a license revocable before the nature of the use is
complete when the licensee has expended large resources in reliance upon
5. Holding: No. "[W]here a licensee has entered under a parol license
and has expended money, or its equivalent in labor, in the execution of
the license, the license becomes irrevocable, the licensee will have a
right of entry upon the lands of the licensor for the purpose of
maintaining his structures or, in general, his rights under his license,
and the license will continue for so long a time as the nature of it
6. Reasoning: The court reasoned that although the general rule is that
a license is revocable at any time by the grantor, it would be unjust to
allow revocation in the case where the licensee has expended a large
amount of money in reliance on the continuance of the license. The court
treated this case much like a contract case, where there had been
performance by one side. Thus, the license became, for all practical
purposes, an easement for the length of time that the use was
continuous. [This was necessary in order to prevent violation of the
reliance principle, as long as the licensee's reliance was reasonable.]
7. Notes: 1. The opposite result was reached in Nelson v. AT&T, where
the grant of a right of use to AT&T for telephone poles was not under
seal, and therefore formally insufficient to grant an easement at the
time. Even though it cost $4,000 to move the poles, the court found that
it was a revocable license. 2. The Restatement states this rule that a
licensee "who has made expenditures of capital or labor in the exercise
of his license in reasonable reliance upon the representations by the
licensor as to the duration of the license, is privileged to continue
the use permitted by the license to the extent reasonably necessary to
realize upon his own expenditures."
** Marrone v. Washington Jockey Club, (1912)
2. Facts: The P. bought a ticket to the horse races at the D.'s track.
However, the D. forcibly prevented him from entering the gate. The next
day they threw him out after he had already put his ticket into the box.
3. Procedural Posture: The P. is suing for trespass for preventing his
entry into the track. [This implies that the P. had a property right
upon buying the ticket.]
4. Issue: Does the buyer of a ticket for a horse track have a right of
property in the track?
5. Holding: No. The ticket binds the seller in contract, but it does not
create a property interest in the holder.
6. Reasoning: [Holmes] reasoned that the ticket was simply a contract of
license, which wsa subject to revocation. Thus, the P. did not have an
action in trespass, only a contract action for breach [he could get his
money back]. The common understanding was that tickets to horse races
are not a conveyance of a property interest in the land. For there to be
an irrevocable right of entry, the P. must have had a interest in the
property or some goods on the property. [A license coupled with an
interest might be irrevocable.]
7. Notes: 1. In Hurst v. Picture Theaters, Ltd., the english court found
for a P. who was ejected from a theater after paying for his ticket.
They held that the ticket was a contract to view the whole show, so his
license was irrevocable because it was coupled with the contractual
interest to view the whole show. 4. The general rule is that a licensee
does not have rights to protection against interference by a third
party. Thus, a person who has a license from one party to cut ice on his
pond may not recover damages from a third party owner of a dam if he
lowers the water maliciously to destroy the licensees benefit from the
** Finn v. Williams, (1941)
2. Facts: Williams used to own a large farm estate. In 1895, he granted
the north 40 to a person who then sold it to Finn. The north 40 did not
have access to a public highway, except over the remaining estate of
Williams. At some point, Williams denied Finn from using a right of way
over her property.
3. Procedural Posture: Finn claims that he has an implied easement
created by necessity because he is surrounded on all other sides by
strangers, so his only route to the highway is over Williams land. The
trial court found for Finn, and Williams appeals.
4. Issue: Does Finn have a right of way by necessity?
5. Holding: Yes. "Where an owner of land conveys a parcel thereof which
has no outlet to a highway except over the remaining lands of the
grantor or over the land of strangers, a way by necessity exists over
the remaining lands of the grantor."
6. Reasoning: The court reasoned that the rule was well settled.
Furthermore, the easement is appurtenant to the property, meaning that
it can lay dormant through several conveyances of the property to
strangers, and still be exercised at any time by the title holder.
7. Notes: 1. The implication of an easement by necessity has been argued
to be based on a policy of bringing land to its highest value use.
However, the public would probably be best served if the easement were
paid for according to an eminent domain-like mechanism. In this way, the
easement would not be bought unless the value of the use outweighed the
value of the condemned property.
** Granite Properties Ltd. Part. v. Manns, (1987)
2. Facts: Granite owned a large parcel of land on which stood a grocery
store and an apartment complex. Granite conveyed a large empty lot
between the grocery store and the apartment complex to Manns. However,
the grant covered areas which Granite had been using as driveways, and
did not contain any reservation of an easement. Because of the location
of the driveways, it was very convenient that they remain where they
were even though they were on Manns property.
3. Procedural Posture: Granite seeks to permanently enjoin Manns from
excluding their use of the pre-existing driveways by granting an implied
easement, because they were apparent obvious and in continuous use
before the conveyance, as well as being very important and convenient.
Manns claims that the driveways are not necessary, and therefore there
should be no implied easement. The trial court refused to grant the
injunctions, and the circuit court granted the injunction for the
apartment complex, but not the shopping center. The court of appeal
granted both injunctions, and this court granted a review.
4. Issue: May an implied easement be granted where the use is not
absolutely necessary if was apparent, obvious and in continuous use
before the grant to the new owner?
5. Holding: Yes. An easement implied from a preexisting use is
established by proof of three elements: first, common ownership of the
preexisting parcel and a subsequent conveyance of the part containing
the easement; second, before the conveyance, the use was apparent,
obvious and continuous, and permanent; and third, the claimed easement
is necessary and beneficial to the parcel conveyed or retained by the
6. Reasoning: The court reasoned that the implied easement was created
by inference from the circumstances surrounding the conveyance. It is an
attempt to ascribe an intention to parties who had not bothered to write
the easement down, or perhaps had not thought of it. The easement was
not absolutely necessary, but "the more pronounced a continuous and
apparent use is, the less the degree of convenience of use necessary to
the creation of an easement by implication." In this case, the
preexisting use was of such a continuous, permanent and convenient
nature that it must have been the intention of the parties that it
continue after the grant.
7. Notes: 1. If a necessary easement is created by the division of a
parcel of land, and later a public road obviates the absolute necessity,
the implied easement may be held to remain intact under the preexisting
use theory. 2. Some courts disagree with Granite, requiring a showing of
strict necessity. 3. Traditionally, implied easements for recreational
purposes, to walk around on, or fish on, another's property have been
held to be void as contrary to the doctrine of jus spatiandi. Some
courts have upheld such easements in small, well defined areas. However,
in Drye v. Eagle Rock Ranch, Inc., the court refused to allow an implied
recreation easement for neighboring residents on the D.s 1,000 acre
ranch, even though it was promised by the housing developers on
marketing brochures, holding that "to impose indefinite servitudes for
pleasure and recreation on so large an area would tend to fetter
estates, retard building and improvements thereon, and hinder the use of
the land." 5. However, some courts have held such representations by
developers as binding "implied restrictive covenants."
** Lunt v. Kitchens, (1953)
2. Facts: Lunt and Kitchens are next-door neighbors. Lunt owns a
driveway that runs between them. The owner previous to Lunt was friends
with the Kitchens, and freely allowed them to use the driveway. After
granting the property to her children, the previous owner even attempted
to execute a quitclaim deed to the driveway to the Kitchens. The
Kitchens treated the driveway as their own for 25 years. However, Lunt
does not want them to use it.
3. Procedural Posture: Lunt brings an action to enjoin Kitchen from
using the driveway. The trial court finds that Kitchen gained an
easement by prescription based on adverse use. Lunt appeals claiming
that the use was not adverse, but rather permissive under a license.
4. Issue: Is there sufficient evidence of adverse use for a period of 20
years to sustain the finding of a prescriptive easement?
5. Holding: No. A use cannot be adverse when it rests upon license or
mere neighborly accommodation.
6. Reasoning: The court reasoned that the Kitchens did not use the
driveway adversely. They had the implied consent of their neighbors, not
simple aquiescence. The Kitchenses did not attempt to exclude the other
neighbors, nor did they attempt to make any changes to it other than
inexpensive repairs. The court reasoned that the presumption was that it
was permissive, and the Kitchenses failed to overcome the burden of
proof. They did not show actual or constructive knowledge by the
neighbors of their claim. Since the quitclaim deed failed to grant any
property interest, there was not an easement.
7. Notes: Whether adverse possession has been established for an
easement should be treated according to a weighing of the facts of the
case, and not by presumptions either way. There are some uses that are
adverse by nature.
** Dartnell v. Bidwell, (1916)
2. Facts: Dartnell owns some land over which Bidwell travels to take a
cart to and from his property. Bidwell plowed a road across the land
where he had been using the right ow way for his cart, and Dartnell sent
him a letter telling him tha he had no right to the land. Apparently no
further action was taken, and Bidwell continued to use the property for
3. Procedural Posture: Dartnell sued for trespass, claiming that a
prescriptive easement was not created because his letter interrupted the
use, making it un-continuous. Bidwell claimed adverse possession in
spite of the letter. The trial court issued instructions that the
owner's acquiescence was not required to establish adverse use, and thus
found for D..
4. Issue: Is knowledge and acquiescence needed to establish easement by
5. Holding: Yes.
6. Reasoning: The court distinguished the creation of a prescriptive
easement from the acquisition of title to real estate by adverse
possession. They held that actual knowledge and acquiescence was
required for prescriptive easement, though not required for title by
7. Notes: The modern view is that acquiescence is not required. The same
requirements for title by adverse possession are required for a
** S.S. Kresge Co. v. Winkleman Realty Co., (1952)
2. Facts: Kresge owns a parcel of land adjoining the parcel owned by
Winkleman. Winkleman operates three businesses on his property, one of
which is a Men's store. Winkleman has an easement for use of an alleyway
over Kresge's property for ingress and egress to an from the Men's store
which was appurtenant to the property and acquired by the previous
owner. Winkleman is now using the easement to supply all of his
businesses, not just the Men's store.
3. Procedural Posture: Kresge brought an action to enjoin Winkleman from
using the alleyway for any other purpose than supplying the Men's store.
The trial court found that the expanded use was an added burden upon the
Kresge's land, and not within the contemplation of the owners of the
premises at the time the easement was granted.
4. Issue: May an easement be used for the support of an estate to which
it is not appurtenant?
5. Holding: No. A prescriptive right acquired by a particular use of the
property can not ordinarily justify an added use in connection with the
dominant estate in a manner far different from that employed under the
6. Reasoning: The court reasoned that the easement was only for ingress
and egress to and from the single building that contained the Men's
store. Winkleman's use for supplying his other stores was an added
burden upon Kresges land which was not envisioned at the creation of the
7. Notes: 1. Under similar facts, the court in Brown v. Voss refused to
grant the injuction preventing the holder of the easement from expanding
it to supply his other businesses, even though it was a misuse of the
easement, because injunction is an equitable remedy, and the landowner
did not have any actual damages from the increased use.
** Sakansky v. Wein, (1933)
2. Facts: Sakansky owns a parcel of land which has a right of way
appurtenant over Wein's parcel of land. The right of way was created by
grant in 1849, and was given a definite location. Wein wanted to erect a
new building over the right of way, but leaving an opening of 8 ft. Wein
offered to grant Sakansky a right of way around the outside of the
building for any trucks that could not go under the 8 ft opening.
3. Procedural Posture: The case was originally tried by a master who
stated that neither party had definite and exclusive rights to the
property, and so the rule of reasonableness applied. The master then
found that although it was unreasonable to limit the right of way to 8
ft, it was reasonable to provide an alternate right of way.
4. Issue: Does the rule of reason override any previous contractual
obligation between the parties to an easement?
5. Holding: No. The rule of reason does not prevent the parties from
making any contract regarding their respective rights which they may
wish, regardless of the reasonableness of their wishes on the subject.
6. Reasoning: The court reasoned that the appurtenant right of way had a
well defined location on the ground. Therefore, Sakansky had an
exclusive right to use it. Since it was unreasonable to limit the
opening to 8 ft, more headroom would be needed. Exactly how much would
be a question of fact. However, since the right of way did exist in a
well defined location, Wein had no right to require a detour from that
right of way, no matter how reasonable it might have been.
** Lindsey v. Clark, (1952)
2. Facts: Clark owned a lot which he granted to Lindsey's predecessors
in title. Clark reserved an easement in the grant to the southern 10 ft
of the lot to be used as a driveway for a rental property he constructed
in the rear. However, Clark and the grantee both mistakenly assumed that
the easement was actually on the north side of the lot. The grantee
built a house on the property which extended 2 ft into the right of way.
Clark has been using the north driveway continuously since then. Lindsey
owns the property now, and seeks to have Clark enjoined from using the
easement because it is in the wrong spot, and has not been used, and has
therefore been abandoned.
3. Procedural Posture: The trial court constructed an equitable remedy
whereby the Clarks relinquish their claim to the southern easement,
which would require reconstruction of the house, in return for use of
the northern easement.
4. Issue: Where there is a mistake as to the location of an easement, is
the non-use of the easement for a period of time sufficient to terminate
the easement by abandonment?
5. Holding: No. The mere non-user of an easement created by a deed will
not result in abandonment unless there is clear evidence of intent to
6. Reasoning: The court reasoned that since the driveway on the north
had been used mistakenly, that there was not an intent to abandon. They
assumed that if the parties knew where the actual location of the
easement was in the grant, that they would have taken step accordingly.
They refused the argument that Clark was estopped from claiming the
right of way still existed because he knew that the house was being
7. Notes: 2. Where a person owns an easement over property, and then
acquires fee title to that property, the easement is merged with the fee
and is destroyed. Thus, the user no longer must follow the restrictions
of the use. 3. An easement created by implication or prescription is
generally not recorded. However, it may still be valid against a
subsequent bona fide purchaser of the servient estate.
** Gallagher v. Bell, (1986)
2. Facts: The Sister's sold all but 1/2 acre of a 34 acre lot to Bell
for eventual subdivision. The remaining 1/2 acre and house upon it was
sold to Gallagher. In Gallagher's grant was a covenant stating that he
would pay for a share of the cost of installing the streets and
utilities in the subdivision. Gallagher then sold the house to Camalier,
who required that the Gallaghers indemnify her for the covenant. When
the land was eventually developed, Bell went to Camalier to collect for
developments. Camalier refused to pay, and so Bell brought this action
3. Procedural Posture: The trial court found for Bell for $7,000.
4. Issue: Does this covenant run with the land, thus ending Gallagher's
liability when he sold to Camalier?
5. Holding: Yes. For a covenant to run with the land: 1) it must "touch
and concern" the land; 2) the original parties must have intended it to
run with the land; 3) there must be privity of estate.
6. Reasoning: The court reasoned that since the covenant made the
Gallagher's interest in their land less valuable, and made the Bell's
interest in their land more valuable, it touched and concerned the land.
Since the time that the subdivisions was to be erected was foreseen to
be perhaps beyond the time that the Gallaghers owned the house, the
covenant was to his heirs and assigns. Thus, it was intended to run with
the land. Furthermore, Camalier acquired title by privity with
Gallagher. Thus, all three conditions were met. Any liability Gallagher
had under his indemnity agreement was strictly between Camalier and
Gallagher. Bell could not collect directly from Gallagher.
7. Notes: 1. The rule in Spencer's Case required that the covenantor
expressly bind his heirs and assigns for the covenant to run with the
land. This rule is not followed frequently today, but lack of the "heirs
and assigns" language may be evidence that it does not run with the
** Neponsit Property Owner's Ass'n v. Emigrant Industrial Sav. Bank,
2. Facts: Emigrant owns a parcel of land in a residential subdivision.
The original grant to the land contained a covenant for the payment of
homeowner's fees to the Neponsit Company, or that a Property Owner's
Ass'n, a corporation that existed solely as a conduit for collecting the
homeowner's fees and spending them as it saw fit for the benefit of the
collective homeowners, would be created. The original grant stated that
the covenant was binding upon the grantee, his heirs and assigns, and
that it would run with the land. If the fees were not paid, they would
become a lien against the individual homeowner's property until paid.
3. Procedural Posture: Neponsit is suing to foreclose the lien on
Emigrant's property for liquidation of the back homeowner's fees in
default. Emigrant claims that the covenant is not binding upon them
because Neponsit Property Owner's Ass'n is not in privity of estate with
them (has no direct interest in the land itself), being only a
corporation acting on behalf of the parties that are in privity of
4. Issue: Is a covenant to pay homeowner's fees to a corporation acting
as an agent of the parties in privity of estate binding, when the
corporation is acting for the benefit of the homeowners (a homeowner's
association), even though the association has no legal interest in the
property (no privity of estate)?
5. Holding: Yes.
6. Reasoning: The court reasoned that normally the requirements for a
covenant to run with the land are 1) that the parties intended that the
covenant run with the land; 2) the covenant "touches" or "concerns" the
land; and 3) there is privity of estate between the party claiming the
benefit of the covenant, and the right to enforce it and the promisor
who is under the burden of the covenant. However, since the enforcement
of such covenants rests in equity, that blind adherence to the rule
requiring actual privity would deprive the plaintiff in this case of
what is equitable. The association existed only for the benefit of the
property owners. Thus, it was a technicality that they did not actually
hold any interest in the land as a corporation.
7. Notes: 2. Traditionally, a covenant would not run unless it benefited
land as well as burdening land. In other words, the covenant would not
run with the land if it was "in gross". This seems to be inconsistent
with the rule allowing easements to run with the land against a
subsequent purchaser, even though they were only for the benefit of one
party. This may be explained by the fact that most easements are
positive and limited in scope (like the laying or sewer lines), rather
than negative (enjoining another property owner from doing something).
3. The defendant in the above case argued that the covenant did not
"touch and concern" his land because the payment of the fee was to be
used for maintenance of the neighborhood areas and not his land
specifically. However, the court reasoned that the improvement of the
surrounding lands did increase the value of the defendant's land to some
degree. Thus, although it did not technically touch the land, the
purpose for the touch and concern rule was satisfied in that the
covenant provided for the maintenance of common areas which increased
the enjoyment of the defendant's own land.
** Eagle Enterprises, Inc. v. Gross, (1976)
2. Facts: Eagle is the successor in title to a grantor who granted a
subdivision of land to Gross' predecessor in title. The original grant
contained a covenant that stated that the grantor would supply water to
the grantee for use on the land each summer and fall, and that the
grantee would buy the water. The covenant stated that it would run with
the land. However, Gross built his own well, and lived there year-around
and refused to pay for the water. None of the deeds in the chain of
title restate the covenant, and Gross'' deed does not state that it is
subject to any previous covenants.
3. Procedural Posture: Eagle brings suit to compel Gross to pay for the
water, claiming that the covenant runs with the land. The lower trial
courts found for Eagle, but the Appellate Court found for Gross.
4. Issue: Is a covenant for the supply of water for personal use of the
landowner binding against subsequent purchasers without notice?
5. Holding: No.
6. Reasoning: The court reasoned that the covenant did not affect the
rights of the landowners in the subdivision. The lands would not be
waterless if Gross did not pay for water (he had dug his own well,
even). There was no claim that the other property owners would suffer
any loss if Gross did not buy water from Eagle. The covenant therefore
resembled a personal, contractual promise rather than a significant
interest that attached itself to the land as it did in Neponsit (where
the failure of an individual owner to pay homeowner's dues did affect
the rights of the other owners because the dues were used for
maintenance of the common areas.) Thus, the covenant to supply water did
not "touch and concern" the land itself. Additionally, these personal
covenants are disfavored in law because they impose an "undue
restriction on alienation or an onerous burden in perpetuity." As
opposed to the Neponsit covenant, which expressly dissolved itself in
1940, the water covenant did not have a limit, and thus would be a
burden in perpetuity.
** Tulk v. Moxhay, (1848)
2. Facts: Tulk owned a large residential development, which included an
ornamental garden. The plaintiff sold the garden to Elms, with a
covenant attached that Elms would maintain the garden for the pleasure
of the remaining residents, and would not build upon it. Elms later sold
to Moxhay, who had notice of the covenant, but whose deed did not
contain the covenant. Moxhay wanted to build on the land.
3. Procedural Posture: Tulk got an injunction against Moxhay to prevent
him from building, and Moxhay appeals.
4. Issue: May a covenant on land be enforced against a subsequent
purchaser who has notice of the covenant, but who has no mention of the
covenant in his deed?
5. Holding: Yes. "The question does not depend on whether the covenant
runs with the land...for if an equity is attached to the property by the
owner, no one purchasing with notice of that equity can stand in a
different situation from the party from whom he purchased."
6. Reasoning: The court reasoned that the covenant was a contract
between the plaintiff and whoever purchased the land. If the court were
to hold otherwise, then the owner of the land would have no protection
from the buyer selling to another the next day to someone who would not
be subject to the liability. Thus, the covenant would be worthless to
protect the value of the owner's property.
7. Notes: The above case dealt mostly with negative covenants (not to
build) instead of positive covenants. In Petersen v. Beekmere, the court
held that an affirmative covenant in equity is enforceable against a
subsequent grantee with notice.
** London County Council v. Allen, (1914)
2. Facts: The Council sold a plot of land for subdivision to a Mr. Allen
who covenanted on behalf of himself and his heirs and assigns, that he
would not construct any buildings on the areas that the Council had set
aside for roads. Mrs. Allen obtained title and built houses over the
area intended for roads, but claimed that she had no notice of the
3. Procedural Posture: The lower court issued an injunction to bring the
houses down, holding that the covenant could not run in equity if the
plaintiff did not have an interest in the land that the covenant
4. Issue: May an equitable servitude be enforced against a subsequent
purchaser who does not have notice of the covenant if the party seeking
to enforce the equitable servitude does not own an interest in the land
for the benefit of which the covenant was created?
5. Holding: No.
6. Reasoning: The court reasoned that the holding of Tulk v. Moxhay
required that the party seeking to enforce the equitable servitude had
to have an interest in the land that received the benefit. However, the
court stated that the inflexibility of that rule was regrettable since
it meant that a public body could not enforce a covenant for the benefit
of the public.
7. Notes: 1. In the U.S., the courts are split on whether a burden can
run in equity when there is no benefit to other land.
** Sprague v. Kimball, (1913)
2. Facts: Kimball owns a lot in a subdivision which was originally owned
by the developer, and which was the last lot in the subdivision sold.
All other lots except this one were subject to a covenant in writing in
their conveyance that they were not to be used for anything that would
conflict with residential use of the land. However, being the last lot
sold, this one was retained by the developer until it was sold to
Kimball, with no restrictions on it.
3. Procedural Posture: Sprague petitioned the lower court for an
injunction against Kimball to prevent him from violating the terms of
the "implied covenant" that went with his grant, arguing that since the
other homeowners had bought their lots in reliance on it remaining a
neighborhood, such a term should be implied in the grant, even though it
was not explicit in writing. The lower court refused to grant the
injunction, stating that it violated the statute of frauds.
4. Issue: Whether under the statute of frauds, an equitable servitude
must be in writing in order to be enforced against a subsequent
5. Holding: Yes.
6. Reasoning: The court reasoned that the homeowners, although
restricted in the use of their own land, did not gain a corresponding
right as against their common grantor in the remaining lot unless that
burden was part of a contemporaneous enforceable contract. Since it was
not in writing, it was not enforceable, even though there had been
reliance on it. There was also no language in the homeowner's own deeds
which indicated that the remaining lot was to be subject to the same
restrictions. Thus, the court held that the reliance of the homeowners
was insufficient to create an equitable interest in the remaining lot
due to the statute of frauds.
** Sanborn v. McLean, (1925)
2. Facts: The McLeans own a portion of a subdivision lot. The developer
granted the lot subject to the restriction that it be used for
residential purposes only. The McLean's grant did not contain the
covenant (it was to less than the entire lot), and some of the other
grants to the lots in the neighborhood did not contain the restriction.
The McLeans wish to erect a gasoline station on their lot. The Sanborns
are their neighbors.
3. Procedural Posture: The Sanborns successfully got an injunction
against the McLeans in the lower court because the lot was subject to a
reciprocal negative easement. The McLeans appealed claiming that they
did not have notice of the covenant because their title searcher did not
tell them about it.
4. Issue: May a reciprocal negative easement runs with the land against
a subsequent purchaser with notice.
5. Holding: Yes. If the owner of two or more related lots conveys one of
the lots subject to a restriction which benefits the land retained, the
servitude becomes mutual, and during the period of restraint, the owner
of the lot retained can do nothing forbidden to the owner of the lot
sold. [Reciprocal negative easement]
6. Reasoning: The court reasoned that a reciprocal negative easement
runs with the land and is not personal to the owners. It must arise out
of common ownership, it can not simply be implied by the rest of a
neighborhood conforming to a mutual plan. It can not be created
retroactively. The subsequent purchaser with notice is bound by the
negative easement. The court stated that since the rest of the buildings
were openly being used as expensive residences, he had constructive
notice that there was a restrictive covenant, even if his search of his
own title did not reveal one. He should have been more diligent in his
7. Notes: 1. The idea of a reciprocal negative easement normally arises
when a developer sells a bunch of lots to persons subject to a
restrictive covenant, and then decides to sell the rest of the lots
without the restriction. Thus, the existence and geographic extent of a
common plan for development can be established from such things as sales
brochures and advertisements. This protects the reliance of the previous
buyers. A single grant, the first given, may be the only grant which has
the covenant written into it. However, if it is written broad enough to
encompass the remaining lots, then it may be sufficient to bind each
purchaser, even if it is not in their own grants.
** Snow v. Van Dam, (1935)
2. Facts: Snow is one of several residential homeowners in a
subdivision. Van Dam owns a lot which is at the entrance to the
subdivision, and was commonly owned by the subdivider. In 1907, the lots
of land owned by the P.s were sold individually, with most containing a
provision that they were to be restricted for residential use. The lot
owned by Van Dam was finally granted to one Clark in 1923, subject to
the same restriction. Van Dam now wants to build an ice-cream shop on
3. Procedural Posture: P.s sued to enjoin Van Dam from erecting the ice
cream shop, claiming that it would be in violation of the covenant in
his predecessor's deed. However, Van Dam claims that under Sprague v.
Kimball, he is not bound because the covenant did not expressly provide
that it would run with the land to a subsequent purchaser.
4. Issue: Will a covenant to use land that is part of a residential
subdivision for residential purposes only attach itself to the land if
such a common scheme for the subdivision can be shown?
5. Holding: Yes. A common scheme of development of a subdivision, as
evidenced by a substantial number of the grants to the lots containing
substantially the same restrictions, is sufficient to show that a burden
on one lot with a corresponding benefit to the remaining lots was
intended to be appurtenant to the remaining lots, thus becoming
enforceable against a subsequent purchaser of any lot in that
6. Reasoning: The court reasoned that although the statute of frauds
prevented a restriction on land from being enforceable against the
grantor if not in writing, the existence of a scheme could still be used
to show intent to make a covenant run with the land. Thus, the real
question was whether the land belonging to Van Dam was intended to be
part of the overall scheme of the development. Since it was at the
entrance to the development, and anyone passing to other parts of the
subdivision would have to pass it, it would have a substantial impact on
the perception of the subdivision as a whole. So the restriction to
Clark (Van Dam's predecessor in title) was part of that scheme, making
the covenant run with his land. Furthermore, it was to be limited by
statute to 30 years after the date of his grant.
7. Notes: 1. If A grants a lot to B with a covenant which is expressly
stated to be for the benefit of C, then C may bring an action to enforce
that covenant against a subsequent purchaser from B, even though they
are not part of a common scheme for development. This is because the
covenant was explicit in stating that the benefit was for C, and thus
appurtenant to C's land; it did not have to be implied into the grant.
Vogeler v. Alwyn Improvement Corp. 2. If A grants a parcel to B with a
covenant to use it only for residential purposes, but A owns no other
land in the area, if B then subdivides the land and sells it off to
individual purchasers with no restrictions in the deeds, can one of the
subsequent purchasers enforce the covenant against another who wishes to
convert his lot to commercial use? [Probably not. When B sudivided the
land, he became the common grantor, and there was no evidence of such a
scheme because none of the deeds contained the restriction. However, A
might be able to enforce the restriction if he could prove that it ran
with the land.] 3. Where a common grantor includes restrictions on land
which he denotes "covenants and conditions", and reserves a right of re-
entry to enforce them the courts have construed the language to be
covenants only, enforceable by injunction, and not conditions subsequent
which would cause forfeiture.
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