A. The sovereign determines the objects of property, the rights
in it, and whose expectations will be protected. Johnson v.
- Methods of Deciding Rights
1. Public Policy – In Johnson Marshall decided that public
policy was more important than what might be just
2. What is just
B. Property Rights + Bundle of Sticks Elements
2. to give away
3. dispose by will
4. right to exclude others
5. Use and enjoyment
6. rent or loan
C. How to become a sovereign (Johnson)
1. Discovery * In Johnson British got exclusive right to land,
leaving the Indians only occupancy
3. Acts of Defense ie War
4. Succession * In Johnson U.S. gained succession to the land
Britain had right to. Therefore the Indians had only a right to
occupancy and no right of alienation.
C. Alternatives to Sovereignty determining Rights in Property
1. Theory of Right: First in time, first in right. ie. Indians
have right to land, they were here first
2. Lockean view: Property is acquired through investment of
labor and effort.
II. Property in Animals
A. Wild Animals: ferae naturae
1. Rule: Property in wild animals is only gained by occupancy,
unless plaintiff is engaged in (a socially useful) business and
established business customs say otherwise, or defendant’s conduct
is so bad that plaintiff has to win.
2. Property of Wild Animals:
a. by corporeal possession: Majority in Pierson held that a
person must have physical possession of the animal to have
b. Investment of time and effort: minority in Pierson
believed that since the beast was noxious, this should give
c. Noxious Beast: If the beast is bad for society, then any
hunter who kills should get possession.
d. On owned Real estate: in Hickeringil case Ducks were
considered property because they were on a private pond before
they were scared away.
e. Custom in Industry: Ghen v Rich gives possession of a wild
animal because the manner of hunting which caused the loss of the
animal was a custom of the industry: Harpooning. – Abandonment is
normally a loss of right unless it is the custom of the industry.
3. Domesticated Animals:
a. Ownership of domesticated animals continues as long as the
owner keeps them in sight and possess the power to pursue them
(Kilts Bees 46)
b. The person who takes an animal out of the wild and
domesticates it should own it. Investment in the animal improves
4. Ad Lib
a. Bone Fide Purchaser: a 3rd person purchaser, under good
faith and full value, who buys the property from a rascal (thief)
III. Property in Land
1) What does one have to do with the land to maintain possession?
a) open, unequivocal and notorious acts of dominion, as plainly
indicates to the public that the person who performs them has
appropriated the land and claims the exclusive dominion over it
ie. Brumagin v. Bradshaw: use of a peninsula as a pasture does
not, in itself, constitute dominion
b) The acts of dominion and ownership must reasonably
i) the size of the tract
ii) the tracts condition and appropriate use
iii) be such as usually accompany the ownership of land
*jury decides what is open and notorious
2) How to establish right to possess:
* Action for Ejectment: – initially a form of action available
to tenants to acquire possession, not title
- later, non-tenants who wanted title proved and wanted to get
back land created a fictional lessee (pretended law hadn’t
a) Valid title
b) Relative rights: Who has better right to title?
i) if neither P nor D has true title, then ct decides
relatively better claim (Tapscott v. Lessee of Cobbs) p 67 * The
crt estops D from using P’s unclear title as a defense.
ii) good public policy; replaces old real actions
* For specifics Tapscott, see p 6 in “1988″*
c) Adverse possession: H-C-A-N-O-E * purpose: reward use of
land, bar stale claims, honors expectations of possessor
a) without permission of the owner
b) inconsistent with the owner’s rights
c) possession under color of title is considered hostile
possession ie. the fact that the adverse possessor does not
realize that they don’t own the property does not defeat hostility
d) owner’s knowledge f possession not sufficient to destroy
hostility (Lessee of Ewing v. Burnett)
a) without significant interruption for the statutory
b) action for ejectment interrupts possession
c) disabilities: infancy, insanity, imprisonment may
prolong statutory period
a) Acts which publicly indicate a control consistent with
the character of the land
b) Adverse possessor must actually use at least a
reasonable percentage of the land claimed
c) Constructive Possession–an exception to the requirement
of actual possession
: limited by the requirement of good faith
: adverse possession for part of land and color of title
for the rest can acquire the entire parcel through adverse
a) acts such that all who are interested will know about
adverse possession ie. paying taxes
b) not required that owner actual know, only that owner
could have known
v) Open: – typical acts of owner of property
vi) Exclusive: – denial of access to the public
A. Definition: A non-possessory interest in land of another.
B. Types of Easements:
1. Easement in gross: an easement which benefits the person.
It is to a person.
2. Easement in Appurtenant: Easement attached to the land.
a. Dominant land: the land that is benefitted by the easement
b. Servient land: the burdened land, easement of this
c. Note: Judicial preference in a dispute whether an easement
is gross or appurtenant will prefer the appurtenant.
3. Affirmative: permits the dominant tenant to do acts
affecting the servient land. “Permits me to do something”
4. Negative: gives the dominant tenant the right to any act
herself on the land. “Ability to prevent plaintiff from doing
something on defendant’s land.
5. Examples: Meg (servient tenant) grants Fred (the dominant
tenant) “the right to walk over my property.” Fred’s easement is
appurtenant, since the privilege of crossing Meg’s property
benefits him in his capacity as possessor of his house.
: if P had won in Parker, it would have been an example of a
C. How is an Easement created?
1. Express Easement: written instrument
a. Grant of right:
b. reservation of right: in a deed I reserve the right to
walk across the property every sunday.
2. Easement by Implication: Crt infers that although not
express, the easement (a grant or a reservation of right) can be
deduced from the circumstances ex. If I buy land from Younger I
retain all those apparent, visible, easements she had for my
reasonable necessary use of the property.
a. Severance of commonly Owned Parcels: only used if the land
b. Prior Use: No easement will be implied unless the use
existed prior to the severance: Prior use must be:
i. apparent: or at least discoverable by a reasonable
iii. Reasonable necessary use
3. Easement by Prescription:
a. Similar to adverse possession: Originally the statutes of
limitations applicable to recover possession did not apply to
easements since an easement is a non-possessory interest. Yet
the same policies that underlie the law of adverse possession
apply to easements. Thus, there developed the idea that easements
could be acquired by prescription. ie. adverse use for a
b. Historical Development:
1) In England the law of prescription developed by
inventing the fiction of the “lost grant” for use for a period of
time: “when the memory of man runneth not to the contrary.”
- P’s argument in Parker:
i) I have prescriptive rights through ancient lights
which is accepted by NY law
ii) 24 yrs er any grant
2) In America, the fiction of the lost grant was
discarded. The courts fixed both the period of requisite use and
the manner of use required
- D’s argument in Parker:
i) No, you can’t get Ancient Lights in US
ii) use is wrong kind to get a presumptive grant
iii) if there is a presumption it is rebuttable
iv) a rebuttal is good in that there never was a grant
1) Hostile; Adverse use: An easement cannot be created by
prescription where the use is permitted by the owner.
2) Open and notorious use exceptions:
i) use need not be exclusive
ii) paying taxes is not an element of proof since taxes
are generally assessed against the whole fee and not against any
non-possessory interests in the fee
4) Passes statutory limit
d. When it cannot be required: Negative easements (Parker)
e. How does a Prescriptive easement End?
1) release: in writing
2) Unity of title: When the two lots are united, the
easement can be wiped out.
3) Prescriptive Conducts: Extinguishing the easement by
blocking the use for statutory time.
4) Abandonment: non-use
5) Estoppel: oral release by a dominant tenant followed by
detrimental reliance by the servient tenant (cow example)
f. Easements of Sunlight
1) Doctrine of Ancient Lights: English doctrine which
allowed a prescriptive easement in sunlight.
a) Never accepted in U.S. because
i. respect for owner’s rights
ii. sunlight has only aesthetic use
iii. Don’t impede Growth – see, Prah v Maretti
b) Easements based on Nuisance:
i. Nuisance: a non-trespassory invasion of another’s
interest in the private use and enjoyment of land; balance Social
Utility against harm to D., Prosser, 92
ii. Fontainebleau case: claim of a nuisance by building
in Hotels light for their pool. Crt held that light was not right
of property recognized by the law in U.S.
iii. Prah case: Because light is now socially useful
for energy, and there is less of a social utility in encouraging
growth, the right in sunlight is recognized, ie. light is a stick
in the bundle
iv. Distinctions: – Good of Society determined by crt
** All three decided for the party that was there first.
4. Public Easements
i) Old English doctrine applicable in only a handful of
states. The rule is that the public can acquire rights in land if
the public has used the land for “so long that the memory of man
runneth not to the contrary.
1) ancient long use
2) Right of use without interruption
3) Peaceable use
7) Not inconsistent with other laws
ii) Oregon Crt did recognize the public’s right to an
easement through custom since the public has used the beach since
the beginning of statehood. State ex rel. v Hay 118
iii) The General rule in U.S. is that the public can’t
acquire an easement through custom. Orienta Beach 123.
iv) RULE FOR CUSTOM: The State as a sovereign has the right
1) Either possesory or nonpossesory
2) Public only
3) almost always land
4) Express or implied
i) Implied Dedication:In Hay, this was impossible since
this takes intent by the property owners to give the land. Can be
5) No Statutory period
6) Need Acceptance * To vacate the easement it must be
shown that the public abandoned
c) Prescriptive Easement: This is argued by the state in Hay
Oregon Beach case, but the crt uses custom because it applies to
all of the beach while prescriptive easement, which was a valid
argument, only applied to this specific case.
V. SOVEREIGNTY POWERS:
A) Public Easements: State, as a sovereign, has the ability to
decide the rights of private citizens in property (see above)
1) Eminent Domain Clauses (5th, 14th Amendments and State
provisions) prohibit gov’t’s taking of private property w/out just
compensation. The gov’t can however regulate the use of private
property for legitimate public purposes (police power=health,
safety, welfare, public morals)
2) US v. Willow River Power: The court held that the private
interests of the owner gave way to the overriding gov’t interest
of protecting navigation. Thus, no compensation.
3) Kaiser Aetna v. US: The court held that the imposition of
public navigation on a converted pond was a taking that required
4) How to reconcile the two:
a) In both the court is balancing the pubic good against the
interests of private owners.
b) Expectations of the parties are the key to distinguishing.
In Kaiser the gov’t gave assurances and in Willow the power
company had knowledge of the statutory right of gov’t over
B.1: Takings; Various Tests
1. Various tests Possible. (note that none of them seem to work
with consistency, the best way may be to view each case
a. Physical Invasion: taking per se
b. Prevention of Harm or Noxious Use: if the use is harmful
it may be ended without compensation.
c. Balance Public benefit and Private harm: if the private
harm is greater than it is a taking.
- Miller v. Schoene: Cedar rust which is spread from Cedar
trees to Apple trees, kills the Apple trees. Statute which ordered
the destruction of the Cedar trees was found a valid police power
to protect apple growers.
- Penn Coal v. Mahon: good argument to Scrt led to finding
of taking of coal rights by a statute because it was a trade of
private right to use for another private right of use.(better
argument second time through in Keystone Coal case led to opposite
decision saying that it was a trade off of public safety for
private right of use.
d. Diminution in Value: If it is a great loss, then there is
e. Expectations of the Parties:
2. Exercise of Police Power: Rent Control, although
originally only temporary, has always been accepted as a valid
police power that does not need compensation. Block v. Hirsh
3. Taking of Ideas:
a. Webster argues (Wheaton v. Peters) that it is property
despite statute because of Lockean theory, investment of time and
effort as recognized by common law.
b. Webster also argued that the statute was complied with on
its face and only unimportant conditions subsequent were violated.
(Later crts agree with this interp, but not for Wheaton)
c. Court decides that the sovereign had the right to
determine rights, and the way to get the right in property is to
follow the legal loop holes created by the statute.
d. INS v. AP: Crt finds that although there is no legal
taking of the news as property, they do decide that it is bad
public policy to allow this bad business activity. The Natural
theory from Webster still lives.
C) Body Parts:
a) Modern Sovereign’s problem of property rights
b) parameters: right to refuse medical treatment, part of right
i) Living wills are express forms.
ii) State can provide different standards. Cruzan case: MO
clear and convincing evidence of pt’s intent valid w/out living
c) right to direct disposition of body parts after death
d) limited property rights with respect organs: Moore v.
e) Note Conversion as a tort claim concerning the taking of
VI. Creation of Estates
1. Defined: An interest in land which is or may become
possesory in the future
2. Rules of Transferring Estates
a. Seisin: Possession of property under claim of freehold
estate. * Livery of Seisin: actual transfer of dirt or dirt or
twig on the land from the grantor to the grantee to signify the
transfer of possession
b. Words of purchase: Words which indicate who receives the
estate. “To A…”
c. Words of Limitation: Words which describe the quantity and
limitations of and on the estate.
“…and her heirs”
B. Historical Development: estates are historical products
1. 1066: Norman Conquest: King conferred retainers of land to
loyal knights and Lords
- Feudal system used:
- Subinfuedation: Tenants made irregular rent payments to
their landlord. These landlords then gave rents to the Lords or
the King above them.
- Land could not be alienated, devised, or inherited.
Escheat: when the land went back to the Landlord.
- Abuses of the Subinfeudation began when Lords began to use
Transfer by Subinfuedation: this occurred when the Landlord would
make X a tenant, X would pay cash up front and only a small rent
of a rose or such after. This screwed up the Rent system and the
Wardships to the Lords above this transaction.
- 1290: “Quia Emptores” was created to allow transfer by
Substitution. Now a landlord could sell his rights to the land
completely to another. These sales had to be complete, thus
2. Post Feudal Times: Land is equal to wealth
a. there are no longer lords, land is property and the only
source of income. – Fee Tails become a popular means of
controlling your heirs.
3. Modern Day: Land is a commodity of Commerce
a. Fee tails are obsolete
b. In US, no feudal system, yet Van Rensselaer: “rent charge”
distinction is a way to get around appearance of subinfeudation,
practically the same
C. Conflicts which shape Estates
1. Landlord v Tenant
2. Landlord v Tenant’s Heirs
3. Tenant v Tenant’s heirs
4. Land Owner v Neighbors
D. Sovereign seisin and was the one who owed the important
feudal services to the lord
: could not be made to commence at future time
: tenant could bring real actions in the king’s ct
A. Fee Simple Absolute
1. Form= O to A and His Heirs
2. Characteristics of a Fee Simple Absolute:
a. whole bundle of sticks
b. inheritable, devisable, descendible
c. presently possessory and no outstanding interest
B. Fee Tail
1. Form= O to A and the heirs of A’s body.
* Other forms are “to male Heirs, or Female heirs.
a. Not freely alienable, only life estate
b. A has present possesory interest until death when it will
go to A’s lineal descendants.
c. If the heirs of A’s body run out, then the land reverts to
O. This is called a reversion.
d. *The future interest of the reversion left in O is
alienable, descendible and devisable. Long v Long
e. Once the land has been reverted, it is a fee simple again.
f. O to A and heirs of his body, then to B. B has a remainder
a. The purpose of this was to keep the wealth of land in the
family despite the children’s wishes to sell it off.
b. Before 1285, “O to A and the Heirs of his body” created
only a fee simple absolute conditional. Once A had a child, they
had fee simple absolute.
c. 1285 Statute of DeDonis Conditonalibus: This made it
impossible for the grantee to alienate the land after having kids.
Gave the fee tail perpetuity. Protected the future interest.
d. Modern View of Fee Tail: it is obsolete.
- in most states, fee tail limitation is ended. A Fee simple
absolute is created in the issue of the first donee in the tail.
C. Life Estate
1. Form: O to A for life
a. right of A to present and future possession until A’s
b. A may alienate, thus creating “pur autre vie” in B. B has
right to possession for the life of A. B’s heirs may inherit
during the life of A.
c. O and his heirs have a the reversion of the land.
d. Remainder can also be created in another person by O.
3. Duties of A in a life estate:
a. tenant has right to estovers, emblements
b. Tenant need not pay incumbrances already on the land when
the life estate begins.
c. tenant is liable for WASTE: Tenant cannot spoil or destroy
the estate without the permission of the reversioners or
i. Rationale of doctrine of waste is to protect the future
interests in the land.
ii. Melms v Pabst Brewing: exception to the waste rule of
life estate. When Pabst tore down house on property which they
latter turned out to have only a life estate in, the crt construed
the land with the house worthless as it was. No waste because
Pabst not purposefully wasted. Sentimental Value?
4. Created by:
a. Act of the Parties
b. operation of Law: ie. Dower, curtesy
D. Conditional estates: Estates which are defeasible; estates
which may end before they have run their maximum course.
- See chart on HL at 253-4.
1. General rules of Conditionals (see HL at 247-9)
a. Condition must operate on the whole estate: it cannot
cease for a few years and then resume so as to destroy unity of
b. Condition can operate on a part of the land.
c. Conditions which are impossible at the time of their
making, or which become impossible after their making by an act
of God, or by an act of the Grantor are Void.
d. Conditions cannot be unlawful
e. Conditions which are repugnant to the estate are void. ie.
no profits from the land. etc
2. Fee Simple Determinable
a. Form: “o to A and her heirs so long as the property is
used for raising iguanas.
i. Fee Simple Determinable ends AUTOMATICALLY after the
event occurs. conditional
ii. Estate is inheritable, alienable, and devisable.
iii. Future interest left is “possibility of a reverter.”
Not a reversion.
iv. Statute of limitations begins to run immediately after
the condition occurs.
c. Hagaman v Board of Educ.: The language conveying land to
the city for School was not specific enough to create a fee simple
determinable when the land was latter used for park, ie no “so
3. Fee simple Subject to a Condition Subsequent
a. Form: O to A and her heirs, but if the property is not
used as an iguana farm, O and his heirs shall have a right of
reentry and repossession.
- other words to use “until”, “while”
i. Fee simple subject to condition subsequent ends after
the condition occurs and the grantor or his heirs exercise their
right of reentry to terminate the estate.
ii. Future interest is “power of termination”
iii. After the reentry, there is a fee simple absolute.
iv. Statute of limitation does not start to run until the
right of reentry is used.
4. Fee Simple with an Executory limitation
a. Form: O to A so long as the property is used for an
ostrich farm, then to B and her heirs.
i. Same as fee simple determinable, but future interest is
in a third person.
ii. Future interest is called “shifting executory interest”
that automatically executes itself.
iii. only existed after 1536
5. Fee Simple Subject to an Executory Limitation
a. Form: O to A and her heirs, but if the property is not
used as an ostrich farm, B and his heirs shall have a right of
reentry and repossession.
i. Same as fee simple subject to a condition subsequent,
but future interest is in third person.
ii. Future interest is called a “shifting executory
interest” which is not self executing.
iii. Not valid until after 1536. Statute of Uses
VIII. Nonfreehold Estates: Landlord and Tenant
: livery of seisin not needed, mere possession sufficient
: could be made to commence in the future
: originally held by precarious tenure, now secure possession
: actual entry by tenant was necessary, now only lease needed
: for any period of time (perpetual)
A. History of Non-Freehold Estates
1. Late 12th Century
a. Starts out as a disreputable contract between an
embarrassed landowner and a lender.
b. Designed to avoid Church’s prohibition of usery.
c. The term was long enough for lender to recover his loan
and recover a profit.
d. Cts held that tenant (lender) had no rights to land
a. Conveyed an interest in land to tenant–start to talk
about lender being seised
b. Tenant seen not as having contractual relationship but a
conveyance in land
ex. Paradine v. Jane: tenant gets a conveyance for a term
and along with conveyance, comes all the risks–losses and
profits, ie military occupation of land
c. Tenant still denied some remedies in courts
a. contract principles return
B. Types of Non-Freehold Estates:
1. Estate For Years
a. Form: “O to A for 10 years”
b. Created by an act of the parties, not by law
c. Future Interests: reversion in the grantor; or a remainder
in a third person
d. Lessee has obligation for compensation:
i. rent service: fee remains with landlord and tenant pays
with corporeal service
ii. rent charge: fee granted to tenant with reserve of
rent. Service enforced by distress clause
iii. rent-seck: fee granted with reservation of rent–no
e. Termination: only by mutual agreement can the parties
lengthen or shorten the original term
2. Estates at will
a. Form: O to A at the will of O
b. Can be terminated by landlord at any moment, w/out
c. Future Interests: reversion in the grantor; or a remainder
in a third person
d. landlord is entitled to emblements
e. virtually abolished, has bee converted into something more
like periodic tenancy
3. Estates from period to period (periodic tenancy)
a. Form: “O to A from month to month”
b. Improvement of Estate at Will: periodic determined by when
you have to pay rent
c. Period automatically continues from one period to the next
unless either party terminates it at the end of a period of notice
d. Future Interest: reversion in grantor
4. Estates at Sufferance (holdover)
a. Tenant rightfully possessed land, but holds over after
estate has expired
b. Tenant at Sufferance is not a trespasser until the
Landlord officially evicts (difficult)
c. A “Holdover” can not acquire by adverse possession
d. no future interests
C. General Issues in Landlord Tenant Cases
1. Recovery of Rent by Landlord
2. Landlord sues to recover Possession
3. Tenant sue for personal injury on premises
4. Action by tenants against city
D. General Principles
1. Privity of Estate: Both parties have present existing
interests in the land:
a. If L is the transferor, (L to L1), L1 comes into privity
of estate with T if what L1 receives (the interest) puts L1 first
in line to succeed T in possession if T’s interest terminated
b. If T is the transferor, (T to T1), the transferee, T1,
comes into privity of estate with L only if the entire balance of
the leased term, in all or in some portion of the leased property,
is transferred and no reversionary interest in the leased property
is retained by T (=Assignment)
2. Privity of Contract: parties have contractual relationship:
* Contract is transfered to another party by mutual agreement.
3. Unless otherwise agreed to, either party may transfer their
interest in the land.
a. Landlord may sell reversion
b. Tenant may transfer by:
: tenant transfers everything he has to assignee.
Tenant has no right to regain possession
: the assignee becomes the new tenant of the landlord
and they are in privity of estate
: the tenant is still liable to pay rent after an
assignment if there was a contractual obligation to pay rent (ie
Privity of Contract).
Ex. Samuels v. Ottinger the tenant had to pay even though
estate had been assigned and he was no longer in privity of estate
: if less than the entire leasehold is transferred to
another person the transaction is treated as sublease rather than
: the subtenant is treated as holding of the tenant
rather than the landlord
: there is no privity of estate between the subtenant
and the landlord. The initial payment of rent. Holdover.
3. Could be used for recovery of rent or possession.
a. Landlord is only entitled to 3 months back rent. see
b. If tenant violates condition which automatically ends
lease, tenant becomes Holdover. Landlord may then remove tenant.
But, lease condition must end automatically. Remedco v Bryn Mawr
4. Only certain Tenant defenses were allowed.
a. Tenant cannot withhold rent because landlord owes him for
repairs or other services. They are a separate action. (People ex
re Tuttle) p.279
b. As urbanization grows, tenants defenses expand. See D.C.
F. Historical Shift in Landlord/Tenant Rights and Duties
1. Fiction: Constructive Eviction:
a. Actual eviction is a defense to a nonpayment of rent.
b. Constructive Eviction: ie read in by the Law
i. Affirmative Act of Landlord can cause constructive
eviction: ie. Dyett crt held that tenant had right to quiet
enjoyment; if this is violated they can leave and claim defense of
eviction. implied covenant.
ii. No Affirmative Act by Landlord will prevent a
constructive eviction defense. In Jacobs v Morand tenants
allegations of bug infestation does not constitute eviction, lack
of affirmative act and no express covenant in lease.
iii. Note that tenant must move out to claim this defense.
2. Statutes: Housing Codes: New Duties
a. Before the Code: Bowles v Mahoney when a retaining wall
collapsed on tenant’s invitee, there was no contractual or
statutory duty to keep premises safe.
b. After Housing Codes: Whetzel case Develops a Statutory
duty in the Landlord. Breach of the duty is evidence of
c. Landlord Liability: Kanelos: Landlord was informed of code
violation which ended up causing injury. Fact that tenant did not
move out herself is no defense for the landlord because tenant
really had no choice but to assume the risk.
d. Ending Lease:
i. Code violations before lease: Brown v Southall: Landlord
was informed of code violations but made a lease with tenant
anyway. Landlord wants rent, tenant claims defense lease is void,
: Tenant theoretically can live as tenant in sufferance.
ii. Code violations during lease: Javins breach of codes
during lease was found to be a breach of implied warranty of
Habitability on the contract. Warranty of habitability is implied
by operation of law into leases. Major alteration of the bundle of
iii. Need for City informing of violations: first Diamond
Housing case, there is no need for the city to have informed
landlord of breach of codes, there need only be a breach of code.
iv. Ban on Retaliatory Evictions: Edwards v Habib held that
Landlord cannot evict tenant for causing him trouble and to make
him an example. There will be a presumption of retaliatory
eviction that is rebuttable by demonstration of legitimate
business purpose, but not for nonpayment of rent.
e. Ending Tenant in Sufferance:
i. Diamond Housing v Robinson: Landlord, after 30 day
notice of ending tenant in sufferance, wants to repossess.
Tenant claims equitable defense of clean hands. Landlord does
not have clean hands because evicting her for exercising her
rights. Jury for tenant.
f. Tenant v. City: Masszonia case
i. Landlord abandons property, tenants sue the city for
more than 1,000 housing code violations and District Ct held that
mayor had the duty to pay
ii. second action limited earlier decision by saying that
city must supply utilities for an emergency period
iii. bring in judge from MT-case was moot because
premises had been condemned and razed
3. Possible consequences from ct’s decisions:
a. Landlords fix the premises and absorb the costs: this is
what the cts hoped for, but what has not happened
b. Landlords abandon the property
c. Buildings stay the same and tenants either pay the same,
or don’t pay
d. Landlords fix the premises and increase rents
e. Tenants have rights, but don’t act on them
IX. Future Interests
A. Defined: A present non-possesory interest in land capable of
becoming possessory in the future.
B. Future in Grantor (Rule of Perpetuities do not apply)
1. Possibility of Reverter:
a. future created from a fee simple determinable
b. Self executing
c. Inheritable and devisable.
2. Power of termination:
a. future interest created by fee simple subject to condition
b. Not self executing.
c. devisable and inheritable
d. Charlotte Park p.485: Distinction between possibility
of reverter and power of termination was necessary because Crt
could not enforce a power of termination by using its powers; as a
state action there was a constitutional conflict with 14th
a. Rule: O, owner of a fee simple, will not have a reversion
in fee simple if O transfers a possesory fee simple or a vested
remainder in fee simple. In all other cases where O transfers a
present possesory interest, O will have a reversion in fee simple.
b. alienable, descendible, and devisable (Long v. Long)
C. Future Interests in Grantee (third person)
- A remainder is a future interest created in someone other
than the transferor that according to the terms of its creation,
will become a present estate (if ever) immediately upon, and no
sooner than, the expiration of all particular estates created
simultaneously with it.
- before 1536, remainders were the only future interest that
could be created in favor of a person other than the grantor
a. Vested Remainders
i. Indefeasibly vested:
- ascertainable person
- not subject to condition precedent
- certain to become vested at some future time in
remainderperson or the heirs
- Example: “O>to A for life, Remainder to B and his
heirs.” B is a living person
- devisable, descendible and alienable
ii. Vested subject to open (partial divestment)
- class gift
- subject to condition subsequent of the class enlarging
- Example: “O>to A for life, Remainder to B’s children and
iii. Vested subject to complete divestment: *subject to
condition subsequent before becoming possessory, “but if” -
Example(s): “O>to A for life, then to B for life.” (If B dies
before A dies then B’s interest expires.)
: “O> to A for life, then to B and his heirs, but if B
dies without issue, to C and her heirs.” (If B dies without issue
then his interest would be ivested by C’s shifting executory
interest.) – devisable, descendible, and alienable
iv. Vested subject to executory interest: * subject to
condition subsequent after becoming possessory – Example: “O> to A
and her heirs as long as she farms then to B and his heirs” (A has
a fee simple absolute subject to executory interest)
b. Contingent Remainders:
i. if given to a person who is unascertainable or if it is
subject to condition precedent; “then if”
ii. alternate contingent remainders: – “O> to A for life,
then to B and her heirs if B survives A. Otherwise to C and his
heirs.” (C has an alternate contingent remainder)
iii. descendible, devisable, alienable
iv. contingent remainders become vested when the condition
precedent is fulfilled or a remainderperson becomes ascertainable
before the termination of the previous estate
2. Executory Interest:
a. Springing Executory Interest
i. operates against grantor
ii. Example: “O> to A when A gets married.”
b. Shifting Executory Interest
i. cuts short vested remainders
ii. Example: “O> to A but if B becomes president, to B.”
c. Executory Interests:
i. descendible and devisable
D. Common Law Rules
1. No freehold could commence in the future.
i. before the Statute of Uses in 1536 you could not convey
ii. Example: “O>To A when he finishes law school.” (Springing
executory interest after Statute of Uses 1536)
2. No conditions in strangers.
i. before the Statute of Uses in 1536 you could not convey
ii. Example: “O> To A but if B becomes president, to B.”
(Shifting Executory Interest OK after 1536)
3. Destructibility of Contingent Remainders.
i. a contingent remainder which didn’t vest at or before the
termination of the preceding estate is destroyed
ii. Example: “O> to A for Life, then to B if B is 21.” (If B
is 11 when A dies, B’s Contingent Remainder destroyed O gets
iii. Ways of artificial destruction:
- forfeiture: tortious conveyance by which a tenant for
life or a fee tail purported to convey a fee simple
- surrender: tenant for life gave his life estate to vested
- merger: if person holding fee simple remainder or
reversion gets control of freehold estate
iv. There was a common law preference for contingent
Remainders over executory interests because executory interests
are not destructible. The Rule in Purefory v. Rogers (p 504), is
that if at the time of its creation it was possible that it would
vest in the future under the common law rules of remainder then it
was construed as a destructible contingent remainder.
4. Doctrine of Merger: Whenever successive vested estates are
owned by the same person the smaller of the two estates is
absorbed by the larger.
- most common operation is with the Rule in Shelley’s Case
5. The Rule in Shelley’s Case: If a grantor conveys a life
estate to A, remainder in A’s Heirs the future interest is put in
the owner of the life estate. THE DOCTRINE OF MERGER then
operates to put the life estate together with the future interest
to create a fee simple.
a. Reason is to collect feudal incidents when land descends
b. Rule does not apply when the grant is “O>to A for Life,
remainder to A’s Children.” For Rule to apply must say remainder
to A’s heirs.
c. Estates (the life estate and the future interest in heirs)
must be both equitable or both legal if different rule doesn’t
6. Doctrine of Worthier Title: – If grantor devises land to his
heirs, the heirs take as heirs rather than devisees. Therefore,
they cannot avoid incidents (ie inheritance tax).
X. Equitable Estates
A. Statute of Uses (1536)
a. Trusts Before 1536:
i. Public land can be transferred Publicly by livery of
ii. Trusts were made to avoid prohibition on wills.
iii. Distinction In Crts Recognition of estate:
* Crt of Common Law recognizes only that feoffee has
title to land. Feoffor has nothing.
* Crt of Equity recognizes that feoffee has nothing in
her own right, real person to be protected is beneficiary, ie
iv. 3 Parts to a Trust Recognized only by Equity Crt
1) Feoffee (trustee) must allow the feoffor (beneficiary
or cestui Que and settlor) to take the profits.
2) Feoffee upon request or notice of the feoffor must
execute the estate to the feoffor or her heirs.
3) If feoffee is disseised, the feoffee will re-enter or
bring an action to reenter.
v. Uses of a Use:
1) Willing of Land
2) Makes contingent remainders indestructible.
3) Avoid feudal incidents
4) Immunity to creators
5) eliminate Widow Dower
6) Avoid Penalty of Treason.
b. After 1536: Statute of Uses
i. created by Henry VIII to get his entitlement, and gave
lawyers there jobs back.
ii. Common Law crt now recognizes that the cestui que use
(beneficiary) has legal title.
iii. “Where any person be seised of any lands to the use of
another person, such person that have any such use shall be deemed
in lawful seisin and possession of the same lands in such like
estates as they had use in.”
2. Effects of Statute of Uses:
a. No Longer need Livery of Seisin: transfer by Deed.
i) Bargain and Sale: method of transferring estate without
livery of seisin.
ii) Statute of Enrollment: law which then required that the
transfer od deed be recorded in a public place, and a fee was
to be paid. – Applied only to freehold estates
iii) Lease and Release: method created by lawyers to avoid
Statute of Enrollment, and the fee for recording without losing
the right to bargain and sale.
- O bargains and sells to A for a lease of 1 yr. ( no
enrollment because its not a freehold estate.)
- O has reversion in Fee simple absolute, which he
then releases to A. (The release also did not have to be enrolled
- Doctrine of Merger brings the interest held by A into
a fee simple absolute.
b. Executory Interests Created
1) Springing Executory Interests recognized in Common law.
2) Shifting Executory Interests also recognized.
3. 3 Types of trusts not executed by Statute of Uses
a) Use on a Use: (see [c] on p. 520)
i. “A to B for the use of C in trust to D”
ii. Only the first use is executed
iii. C is seised in trust to D.
* Distinguish from Use after a use:
i. To B and his heirs to use of C for life then to use of D
and his heirs.”
ii. C has life estate and D has a vested remainder in fee.
b) Non-Freehold Estates: are not executed by Statute of Uses
c) Active Trust:
* “A conveys by common law enfeoffment to B and her heirs
to pay the income to C for life, then to convey land to D and
B. Modern Trust
1. Defined: A fiduciary relationship in which one person (the
trustee) holds legal title over property (Res) subject to
equitable rights of beneficiaries. It is a device whereby one
person manages property for the benefit of others. A person who
creates the trust is the settlor.
i) Res (property)
ii) Intent to create trust on the part of the settlor
iv) trustee (although technically, you do not need a trustee
according to JTY)
3. Inter Vivos Trust as a Will Substitute:
i) Farkas: Farkas “wears all the hats,” settlor, trustee, and
beneficiary, and leaves future beneficiary in Williams. Ct
finds that Williams has an interest during Farkas’ life and it is
therefore an revocable inter vivos trust rather than a
ii) Sullivan v. Burkin: the revocable inter vivos trust set
up by husband, disinherits his widow. The ct holds prospectively
that this cannot be allowed.
4. Duties of the Trustee (Blankenship):
a. Undivided loyalty to beneficiary
b. duty to make the trust productive
c. failure of duty remedied by ct of equity
5. Reforming Trusts
a. Charitable trusts can be changed under the Doctrine of Cy
Pres. (Wesley v. Harvard)
i) Necessary Elements:
- A general charitable intent by testator, as opposed to a
specific intent, such as creating a memorial to a certain person,
which does not allow reformation
- There must be an acceptable charitable purpose
- There must be impractability or impossibility in
carrying out the will or trust in its present form, usually due to
b. Non-charitable trusts
i) A trust may be reformed to prevent beneficiaries from
suffering severe financial loss (emergency). In re Pulitzer’s
- Here the Ct determined that the “dominant purpose” of
the trust was to maintain a “fair income” for the
beneficiaries.(this isn’t evident in the instrument itself)
ii) Note p 555: If a testatrix wants her house to be razed
because she fears that it will be subdivided for apartments, her
wish may be denied if the executor can find an alternative to
destruction that assures the house won’t be made into apartments
(put it on historical register.)
XI. Rule Against Perpetuities
A. Rule: No interest is good unless it must vest or fail within
lives in being and 21 years. (Incl. gestation periods in gross)
1. Problems causing the RAP:
a. After 1536 new interests were made which made the state of
the title unknown for long periods of time.
b. This ruined alienability and certainty of title.
2. Duke of Norfolk’s case: crt of Equity decision laying
foundation for the RAP.
1. Furthering alienability
2. Prevents land from being kept by the wealthy (weak)
3. Socially undesirable to protect people from competition.
“survival of the Fittest”
4. Fair balance between Past and Present generations. (Good)
5. Socially desirable to control land by the living.
D. What interests are Affected?
1. NOT Affected
a. interests reserved for the grantor.
- reversion, possibility of reverter, right of reentry.
i. indefeasibly vested remainders
ii. Remainder in Another charity (ie. following a charity)
a. Contingent Remainders
b. Executory interests
- remember that exec. interests vest when they become
c. Vested remainders subject to Open
i. class stands or falls as a class
ii. To pass the test the class must close; either
physiologically or the rule of Convenience
+ Defined: class may close when one of the members of the
class is entitled to demand her share.
- Discretionary power of crt, depending on intent of
ex. Jee v. Audley: Since Mary Hall could have an issue
which could then fail after her death, and Jees could have an
3. Deeds: must be tested at the time of delivery (land)
: execution of Deed (trust)
Note: revocable trust is not subject to RAP until its
4. Wills: at the death of the testator
E. Measuring Lives
1. Measuring lives is a life in being at the beginning of the
perpetuities period that will make the interest vest or fail with
in the period.
2. If there is no life in being, the future interest fails.
1. Animals, plants, organizations, cannot be measuring lives.
2. Fertile Octogenarian rule: Persons are deemed able to
produce children until death.
3. the Unborn Widow: When someone takes after the life estate
of a widow, it is possible that the widow will be born after the
RAP would begin.
4. The Slothful Executor: Where someone takes under language
like, “after the settlement of my estate” remember that it could
take dozens of yrs to settle the estate which might surpass RAP.
5. Charity Exception: Gifts from one charity to another avoid
G. Gen Rules for Determining VALID future Interests subject to
1. If it is given to a person in being at the beginning of the
Perp. Period for life., ie. To A for life when Bridge falls.
2. If it is given to a person in being, and it is not
transmissible at the death of that person., ie., To A if A is
living when the Bridge falls.
- Conditioned on A’s survival.
3. Class Gifts: The class is closed at the beginning of Perp.
Period or 1. or 2.
4. Vested Remainders are OK
1. Lucas v. Hamm: Crt found that it was not negligent for a
lawyer to apply the RAP incorrectly, because lawyers of ordinary
skill often screw it up.
XII. Concurrent Estates:
A. Joint Tenants: Undivided share of the entire parcel of land,
each has the right to use the whole.
1. 4 Unities:
2. Destroyed if one of the unities is destroyed. Note: A
transfer inter vivos changes it to a tenancy in common.
3. Right of Survivorship remains after death
4. Common Law Rule favored joint tenants. (statutes of states
now favor tenants in Common)
5. Creditors of one tenant cannot get to interest of other
6. Joint tenancy in Bank Accounts: Kleinberg v. Heller
* Rule: surviving joint tenant who withdrew mare than 1/2 of
a joint bank account during the life of the deceased joint tenant
does not as a matter of law take all but has the burden of proving
that the excess withdrawal was with the consent or was ratified by
the dead joint tenant.
- it doesn’t matter who made the deposits, or that dead
tenant never withdrew money, or that she failed to challenge the
withdrawal before death.
B. Tenants in Common: undivided Share in Land
1. One Unity: possession
2. Possible to have different interests at different times
3. No right of Survivorship
4. Tenant can force partition by
a. Common Law: If tenant survivor is in sole possession
but not actually excluding others (ie, heirs of the other tenant),
the surviving tenant is not accountable to the others for the rent
or use and occupation.
b. Community Property Statutes: Some statutes may require
that the tenant account for the fair rental value of the
property. See McKnight v. Basilides where the wifes interest
passed to her kids and they became joint tenants with the Husband;
he tired to claim adverse possession, crt said no, and gave the
kids back rent, and rent for use of house H occupied.
6. Interests can be unequal
C. Tenancy by the Entirety
1. 5 unities:
e. valid marriage
2. Right of Survivorship
3. Severed by;
a. transfer of each spouses interest to a 3rd party
b. transfer of interest of either spouse to the other
c. death of one spouse
d. Divorce: most states then divide it on the basis of
community property definitions. Otherwise, Uniform Marital
Property Act divides the Property without regard to title.
3. Common Law Presumed that Married Couples took as Tenants by
4. Husband had exclusive control, until Married Womens Property
Acts gave wife more powers.
- Carlisle v. Parker: H + W v. creditors; Married Women’s
Property Act created immunity during marriage, husband’s creditors
cannot reach proceeds
5. only 20 states still recognize Tenants by the entirety
1. Background: both systems were founded on Christian ideal of
marriage: indisolvable; function to provide for children
a. Common Law:
i. from England
ii. H + W = 1; husband and wife became one legal person
iii. Divorce: alimony to needy, innocent wife plus she
would get her separate property
iv. Death: wife entitled to dower; husband entitled to
b. Civil Law:
i. from France and Spain
ii. H + W=2 : Husband and Wife each have separate property
brought to the marriage and gifts or inheritances during the
marriage. All other assets during the marriage were part of
community property. Equal partners in cp, but husband is manager
iii. Divorce: 1/2 community property (if any–see Beam)
plus separate property and alimony to needy, innocent wife
iv. Death: 1/2 cp + sp
2. New World: two systems become virtually the same
a. common law overpowering
b. states that do have civil law, husband’s managerial role
extends to wife’s sp.
3. Married Women’s Property Act: (1839, MS-first one)
a. woman has legal identity (but amounts to little)
b. in civil law, gets rid of husband’s managerial role in
women’s separate property
c. Purpose: created for wealthy fathers to protect daughters
d. four principles after Act: (Carlisle)
i. Estates by the entirety are not abolished
ii. Interest of the wife is separate property
iii. Neither the entirety estate nor the interest of
either spouse can be sold without the consent of both
iv. Judgment against one tenant by the entirety is a lien
on the entire property and thus husband’s creditors cannot get all
of the proceeds to pay for his debts
- Reed v. Reed: first time statute invalidated for violation
of 14th Amendment: sex-based theory
- States add ERA Amendments in Constitutions by 1970′s
- West v. First Agricultural Bank: no retroactive decisions:
public policy. Two wives sue claiming T by E formed under common
law are in violation of Equal Protection clause and MA ERA. Ct
decides it is constitutional because the wives were not forced
into T by E–they had a choice
a. Civil Law:
i. changes “husband” to “either spouse” as manager of cp
ii. Alimony is 2-way street
iii. No-fault divorce
b. Common Law
i. partnership at moment of divorce: marital property all
goes in a pot for equitable distribution
ii. alimony is 2-way (Osborne v. Osborne p 873)
iv. Dower and curtesy were replaced by spouses elective
shares: statutory, if you die, a spouse must have money for
surviving spouse in will, ie no disinheritance
1. Wroth v. Tylor: The Matrimonial Homes Act of 1967 in
England, gave either spouse the right not to be evicted or
excluded from a home. Starts out as a public policy statute to
protect, and ends up abused in this case.
2. Legal Decisions on “Living Together”
a. Crt has 3 choices:
i. before 1970: Go Away, you have nothing
ii. You Look Married, but you’re not M, so we see you as M.
iii. You look M, but you’re not, so you don’t get M
property rights, but you get the rest or part of the Common law
and Equity to fight with. ie. contracts (MN:scriptive; NY: oral)
Marvin v. Marvin: contract claim was unsuccessful.
3. Marital property is not considered vested: statues can
change mid-stream, w\out deprivation of constitutional rights
4. Ante-nuptial agreements:
i. have to be in writing according to Statute of Frauds
1. Review at time of execution: for procedural (both need
representation ie, was the husband drunk when he signed it) and
2. Review at time of enforcement: for substantive
fairness–look at intervening forces
5. Advanced degrees: Are these considered marital property?
NY says yes (O’Brien v. O’Brien), most say no, perhaps just
6. Military pension plans: 1982 statute reversed McCarty
decision and allowed States to decide military retirement pymts in
accordance to State laws
XIII. Sovereignty: The Continuing Problem…
A. Onieda v. Oneida Indian Nation: crt found that the 1795
transaction of Oneida Indian land to state of NY was invalid
because of the trade and intercourse act. They got a lot of money
because they were never compensated for their occupancy.
- What is occupancy worth after Johnson v. M’Intosh?
B. Possible Defenses to avoiding Compensation:
1. NY detrimentally relied on the sale-too late to make this
2. Ancestors can’t continue the claim.
3. Doctrine of Laches
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