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Flashcards in 1L Property Deck (158):
1

Johnson v. M'Intosh

Holding: Land title transfers are only valid when made under the rule of the currently prevailing government.

2

Shelley v. Kraemer

Holding: State court enforcement of a racially restrictive covenant constitutes state action that violates the equal protection clause.

3

Pierson v. Post

Holding: The mere pursuit of a beast (property) does not grant ownership to the pursuer, therefore the acquisition of the beast by another first is not eligible for a legal remedy.

Property in wild animals is acquired by occupancy, meaning at least mortal wounding or capturing from a distance, and at most physical possession.

3 Part Test:
1. Intention to Appropriate
2. Deprive Animal of Liberty
3. Brought the animal in his control

4

Ghen v. Rich

Holding: A person establishes a property right over whales when he takes possession of the carcass and takes practical steps to secure it, in accordance with local custom.

5

Keebler v. Hickeringill

Holding: A property owner has a right to make lawful use of his property (for profit) without malicious interference of others.

6

Popov v. Hayashi

Holding: Where an actor takes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has qualified right of possession.

7

Armory v. Delamirie

Holding: A person who finds a piece of chattel has a possessory property interest in the chattel, which may be enforced against anyone except the true owner of the chattel.

8

Hannah v. Peel

Holding: A finder of lost chattel on another's property may have superior rights to the chattel compared to the real property owner.

9

Externalities

Externalities exist whenever some person makes a decision about how to use resources without taking full account of the effects of the decision.

10

Sleeping Principle

To penalize the negligent and dormant owner for sleeping on his rights.
If adverse possessor's entry were not reasonably observable we couldn't rightly blame an owner for being dormant.

11

Adverse Possession Requires that there be:

1. An entry that is actual and exclusive
2. Open and Notorious
3. Continuous for the Statutory Period
4. Adverse and Under a Claim of Right

12

Van Valkenburg v. Lutz

A Party takes adverse possession of a property owned by another when he takes actual possession, encloses it or makes improvements for a statutory period of years.

13

Manillo v. Gorski

A minor encroachment onto another's land is not considered to satisfy the open and notorious requirements of adverse possession.

14

Doctrine of Agreed Boundaries

An oral boundary agreement to settle the matter is enforceable if accepted for a period time.

15

Doctrine of Estoppel

When one neighbor makes representations about the location of a common boundary and the other neighbor changes her position in reliance on the conduct.

16

Doctrine of Acquiescence

Long acquiescence is evidence of an agreement between the parties fixing the boundary line.

17

Howard v. Kunto

Adverse possession occurs when a person takes actual possession of property that is uninterrupted, open and notorious, hostile and exclusive, under a claim of right for a statutory specified period of time.

18

Law of Finders

A finder has better right except for true owner or any prior possessor.

Policy purposes: We want the law to make it more likely that a true owner gets back their item & we want to encourage honest finders.

19

Earning Theory

Adverse possessor has earned the right to the property. Given energy/use/reliance they have now earned the property.

20

Adverse Possession & Government Property

Adverse possession does not apply to government property

21

O'Keeffe v. Snyder

The discovery rule tolls the statute of limitations for chattel if the owner of stolen chattel acted with due diligence to pursue the property.

22

Requirements to make a Gift Personal Property:

1) Intent to transfer Property
2) Deliver Possession
3) Acceptance by Donee

23

Newman v. Bost

In order to effect a gift, the items must be physically delivered to the donee whenever possible.

24

Symbolic Delivery

Constructive Delivery

Actual

Symbolic-Delivery of Deed to object
Constructive-Delivery of key to car, key to house
Actual- Delivery of Object (ie. Dresser/Jewelry/Book)

25

Gruen v. Gruen

A gift will be valid when the donor retains a life estate in said gift, because an irrevocable transfer occurred, granting the donee the right to the gift once the life estate terminates.

26

Nonrivalrous Resources

A resource is nonrivalrous when your use of it does not interfere with the use of it by other people.

Ex. Recipe Macaroni and Cheese

27

Non excludable Resource

A resource is non excludable when it is difficult to prevent people from using it.
Ex. Musical notes

28

International News Service v. Associated Press

A quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade.

Raw facts are not protected by copyright, however where unfair competition practices come into play, a quasi-property right emerges as a right against industry competitors.

29

Feist Publications, Inc. v. Rural Telephone Service co.

To be granted copyright protection, works must be original, meaning that they entail some minimal degree of creativity.

30

Elements of Copyright

1. Work of Authorship
2. Fixation
3. Originality

31

Authors Guild v. Google Inc.

The fair use defense to a copyright infringement claim applies if a party copies books to a searchable online database but allows users to view only small portions of the books.

32

4 Elements of Fair Use

1. Purpose and Character of Use (Transformative Purpose?)
2. The Nature of the Copyrighted Work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work

33

Diamond v. Chakrabarty

Living things fall within the scope of USC 101 as patentable matter.

34

Moore v. Regents of the University of California

Once cells leave a patient's body they are no longer that patient's property.

35

Matthews v. Bay Head Improvement Association

The public trust doctrine extends to dry beach area above the foreshore owned by a quasi-public entity.

36

Eldred v. Ashcroft

The copyright clause's requirement that copyrights be granted only for limited time does not bar congress from extending the terms of existing copyrights

37

Patent Law

Governs ownership of Inventions

38

Copyright Law

Governs ownership of Creative Expression

39

Trademark Law

Governs Ownership of brands/logos/slogos and other signifiers used in trade.

Danger of becoming generic & losing trademark (think Velcro, Kleenex, Thermos, Chapstick, Frisbee, etc) shifts out of the private space and becomes public.

40

3 Requirements for Trademark Protection

1. Distinctiveness
2. Non-functionality
3. 1st Use in Trade

41

In re Cordua Restaurants, Inc.

A generic term that the public understands to refer to describe the genus is not eligible for trademark status.

42

State v. Shack

Workers for a non-profit aiding migratory farm workers are not considered trespassers when they enter land to aid workers.

-The right to exclude doesn't include the right to exclude government workers doing certain jobs/tasks.

43

Davis v. Davis

Unreasonable restraint on alienation:

A property owner should be able to convey property to whatever condition he/she desires to impose.

44

Impression Products, Inc. v. Lexmark International, Inc.

Once a patentee decides to sell, the sale exhausts its patent rights regardless of any post-sale restrictions the patentee purports to impose.

45

Hawkins v. Mahoney

The interference of intent to abandon one's property, based solely upon the acts of the owner is a rebuttable presumption.

46

Common Law Elements of Abandonment

1) The owner must intend to relinquish all interests in the property with no intention that it be acquired by any particular person.
2) There must be a voluntary act by the owner effectuating that intent.

47

Pocono Springs Civic Association, Inc. v. Mackenzie

An owner may NOT abandon real property unless all right, title, claim and possession is relinquished.

48

Eyerman v. Mercantile Trust co.

A court may prevent the destruction of property when it is against public policy.

49

White v. Brown

When the terms of a will are ambiguous, the will shall be determined to have passed on a fee simple absolute.

50

Defeasible

Any estate may be made to be defeasible, meaning, it will terminate prior to its nature end point upon the occurrence of some specified future event.

51

Baker v. Weedon

A court of equity has the power to order the sale of property subject to a future interest in order to prevent waste.

52

Mahrenholz v. County Board of School Trustees

A person who holds a "right of re-entry for condition broken" must take steps to reclaim the property after the condition has been broken in order to secure title in the land.

53

Fee Simple Determinable

Language: "To A AS LONG AS she remains a lawyer".
(language of duration)
ex. "so long as", "while"

Characteristics:
Violation=Automatic Forfeiture
Freely descendable
Freely Divisible

Future Interest: Possibility of Reverter

54

Fee Simple Subject to Condition Subsequent

Language:
Clear Durational language
"To A BUT IF coffee is consumed on site, grantor reserves right to reenter and retake"
ex. "but"

Characteristics:
Not automatically terminated but can be cut short at the grantor's option.

Future Interest: Right of Entry/Power of Termination

55

Mountain Brow Lodge no. 82, Independent Order of Odd Fellows v. Toscano

No formal language is required to create a fee simple subject to a condition subsequent as long as the intent of the grantor is clear.

56

Ink v. City of Canton

A grantee with title to land under a restricted use subject to reverter is entitled to keep the full amount of any sums paid if the land is taken under eminent domain.

57

Consecutive Rights of Possession

Division results in possessory and future interests, not co-ownership

58

Tenancy in Common

Separate but undivided interests in the property. The interest of each is descendible and may be conveyed by deed or will. No survivorship rights.

59

Joint Tenants

Joint tenants have the right of survivorship because in theory joint tenants are regarded as a single owner. 4 unities were essential to joint tenancy: Time/Title/Interest/Possession

60

Tenancy by Entirety

Created only by married couples. Like joint tenants in the 4 unities plus a 5th (marriage). The surviving tenant has the right to survivorship. Only a conveyance of BOTH parties together may defeat the right of survivorship.

61

Riddle v. Harmon

One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device (straw man).

62

Harms v. Sprague

A lien placed on one joint tenant's interest in jointly held property does not destroy a joint tenancy.

63

4 Unities of Joint Tenancy

1. Time
2. Title
3. Interest
4. Possession

64

Delfino v. Vealencis

When dividing jointly held property, a partition in kind is favored over a partition by sale.

65

Spiller v. Mackereth

A co-tenant in common, having undivided right to the entire property, does not owe rent to his co-tenant unless he agrees to, or unless he has effected ouster of his co-tenant.

66

Swartzbaugh v. Sampson

A joint tenant may, without the consent of his co-tenant, convey or burden his share of the property only to the extent of his interest in the property.

67

Partition by Kind

Land divided by % share in ownership

68

Partition by Sale

Forced Sale by committee then division of $ based on % of ownership

69

Sawed v. Endo

Under the Married Women's Property Acts, the interest of a husband or wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses.

70

In re Marriage of Graham

An education earned during marriage is not considered marital property and therefore is not subject to equitable distribution upon dissolution of marriage.

71

Inception of Right Rule

Character of property is determined at the time signed.

ex. Wife signs before married= her separate property

72

Time of Vesting Rule

Title does not pass until all installments are paid

ex. Wife signs before married, marries, pays final installment after marriage = Community Property

73

Pro Rata Sharing Rule

Community payments buy in a pro rata share of the title

74

The Term of Years

An estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created it becomes possessory.

75

The Periodic Tenancy

A periodic tenancy is a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination.

76

Tenancy at Will

A tenancy of no fixed period that endures so long as both landlord and tenant desire.

77

Garner v. Gerrish

A lease which grants the lessee the right to terminate the tenancy does not grant the same right to the lessor unless expressly stated in the document.

78

Tenancy at Sufferance: Holdovers

Arises when a tenant remains in possession (holds over) after termination of the tenancy.

79

Hannah v. Dusch

English Rule- Landlord has burden of evicting a holdover tenant

American Rule- Landlord gave the legal right to occupy, now it is potentially the tenant's burden to evict a holdover tenant.

80

Ernst v. Conditt

One who takes an assignment of a leasehold interest is responsible to the lessor under the terms of the lease.

81

Assignment

Arises when the lessee transfers the ENTIRE interest under the lease (entire right to possession for the duration of the term).

82

Sublease

Results when the lessee transfers anything less than his entire interest.

83

Kendall v. Ernest Pestana, Inc.

A commercial lessor may not unreasonably withhold his consent to an assignment of a lease, with or without a clause requiring landlord's consent to transfer the lease

84

3 Types of Leaseholds

1. Term of Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance

85

Privity of Estate

Liable to each other for promises in the original lease

Goes to whoever has the right to possess the property on the last day of the term.

86

Privity of Contract

Contract based nexus born of parties exchanging promissory word.
Can exist among multiple parties

87

Berg v. Wiley

A landlord must use the judicial process to peaceably retain possession of land occupied by a tenant.

88

Summary Eviction Proceedings

A quick and efficient means by which to recover possession (and sometimes past rent) after the termination of a tenancy. Summary Proceedings have faced criticism from both landlords (regarding 114 day average eviction time) and tenants (no means to obtain representation).

89

Sommer v. Kridel

A landlord must make reasonable efforts to mitigate damages by re-letting an abandoned lease.

90

Village Commons, LLC. v. Marion County Prosecutor's Office

Actual eviction occurs when a tenant is deprived of a material part of the leased premises.

Constructive eviction occurs when an interference with possession is so serious that it deprives the lessee of the beneficial enjoyment of leased premises.

91

Hilder v. St. Peter

An implied warranty exists in the lease for any residential dwelling unit that the landlord will deliver/maintain the premises that are safe, clean and fit for human habitation.

Implied Warranty of Habitability

92

Retaliatory Eviction

Most jurisdictions forbid retaliatory action by landlords renting residential spaces.

93

Illegal Lease

Premises violated the housing code from the day the lease was created/ the tenant entered into the lease. Tenant is NOT obligated to pay rent.

94

Breach of Covenant of Quiet Enjoyment

Denies beneficial use of the premises

Implied terms: safe/sanitary/basic provisions of services

95

5 Types of Servitudes

1. Easement
2. Profit
3. Negative Easement
4. Real Covenant
5. Equitable Servitude

96

Affirmative Easement

Right to Enter or Perform an action on servient land

97

Negative Easement

Easement forbidding one land owner from doing something that may harm a neighbor

98

Easement Appurtenant

Benefits its holder of the easement of his physical use and enjoyment of his property.
*It takes 2 (Dominant & Servient Estate)
Dominant-Benefits
Servient-Suffers the Burden

ex. A road running over O's land that allows B to access her dominant estate. B has an easement appurtenant to B's dominant tenement because it allows B a benefit of use and enjoyment to B's own land.

*Think of Appurtenant as meaning "relevant to"
* Passes automatically with the dominant tenement, burden passes with servient tenement

99

Easement in Gross

Confers upon its holder only a personal, financial or commercial gain, not linked to the easement holder's use or enjoyment of his own land (holder may not even have land of his own).

ex. A may swim in B's pond
ex. Right to place a billboard on another's lot

*Not Transferrable

100

Willard v. First Church of Christ, Scientist

A grantor may reserve and interest in the land to be granted for use by a 3rd party.

101

Holbrook v. Taylor

Where the landowner has granted a license to another to use and make improvements upon the land, and the licensee, relying on this permission does use and make improvements to the land at considerable cost, that license is irrevocable.

102

Shepard v. Purine

An oral license promptly acted upon in the manner plaintiffs acted is just as valid, binding and irrevocable as a deeded right of way.

103

Van Sandt v. Royster

An easement will be implied in favor of a grantor for sewer pipes running under the grantee's land, because the grantee is charged with notice as the existence of such pipes is apparent even if not visible.

104

Requirements to Imply an Easement from Prior Existing Use:

1. Severance of title to land initially undivided (Existing Use)
2. Apparent, existing and continuous use of one parcel at the time of severance (Severance)
3. Reasonable necessity for use at the time of severance (Reasonably Necessary)

105

Othen v. Rosier

No easement by necessity is created where the easement exists out of mere convenience.

106

Miller v. Lutheran Conference & Camp Association

An easement in gross is assignable and divisible, but if divided, all those holding an interest must act as a single entity.

107

Brown v. Voss

An easement appurtenant to an estate may not be extended to other adjoining estates.

108

Implied Easement by Necessity

1. There was unity of ownership of the alleged dominant and servient estates
2. Roadway is necessity not a mere convenience
3. Necessity existed at the of severance of the 2 estates

Easement ends when necessity ends

109

Marvin M. Brandt Revocable Trust v. United States

Rights of way under the 1875 Act are easements that terminate by the railroad's abandonment, leaving a private owner's land unburdened.

110

Traditional Requirements for Equitable Servitudes

W-Writing
I-Intent
T-Touch & Concern the Land
N-Notice

111

Real Covenant Remedy

Damages

112

Equitable Servitudes Remedy

Injunction

113

Nepotist Property Owners' Association Inc. v. Emigrant Industrial Savings Bank

A covenant contained in a deed that requires payment of money, "touches and concerns" the land if it substantially affects the rights of the parties as landowners.

114

Sanborn v. McLean

Where the owner of 2 (or more) related lots conveys one with restrictions for the benefit of the retained lots, the restrictions are deemed to apply also to the retained lots.

115

Implied Reciprocal Servitude Theory

When a common grantor later sells a parcel from his remaining land, the prior purchaser is enforcing a reciprocal servitude that is implied from a common plan of development.

116

Termination of Covenants

1. Merger on the basis of unity of ownership of the benefit and burden by the same person
2. Formal release
3. Acquiescence
4. Abandonment
5. Equitable Doctrine of Unclean Hands
6. Equitable Doctrine of Laches
7. Estoppel

117

Western Land Co. v. Truskolaski

A restrictive covenant limiting a subdivision to residential use remains enforceable despite commercial development, so long as the covenant's original purpose may still be accomplished and property owners benefit.

118

Common Interest Communities

Homeowners Associations, Condominiums, Co-ops

119

Nahrstedt v. Lakeside Village Condominium Association

California law provides that common interest development use restrictions are enforceable unless unreasonable.

More deference given to original agreement, less deference given to subsequent agreements.

120

The Law of Nuisance

One should use one's own property in such a way as not to injure the property of another.

121

Morgan v. High Penn Oil co.

A party who intentionally and unreasonably commits a non trespassers invasion of another's land may be held liable for private nuisance, even if the party was not negligent.

122

Estancias Dallas Corp. v. Schultz

A trial court must balance the equities when determining whether an injunction is appropriate to abate a nuisance.

123

Boomer v. Atlantic Cement co.

Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm

124

Nuisances:
What is Unreasonable Interference?

3 Ways the court determines whether a nuisance is unreasonable:
1. Balancing Test
Cost/harm to P > Cost to Actor/D

2. Threshold Test
Harm to P has risen above "some" minimum threshold

3. Threshold & Defendant can compensate for the harm AND stay in business

125

Spur Industries Inc. v. Del E. Webb Development co.

When the public develops land in the vicinity of a public nuisance, the action creating the nuisance must be ceased by the party responsible for its creation, however, said party is entitled to compensation.

126

Nuisance Claims May be Resolve in one of 4 Ways

1. Abate the activity in question by granting P injunctive relief
2. Let the activity continue if D pays damages
3. Let the activity continue denying all relief to P
4. Abate the activity if P pays damages

127

Present Possessory Estates

1. Fee Simple Absolute
2. Defeasible Fees
3. Fee Tail
4. Life Estate

128

Fee Simple Absolute

Closest thing to Absolute ownership
Duration: Potentially Forever
Indefeasible
No corresponding future interests
Language: "To A" or "To A and his heirs"
Characteristics:
Freely Transferable
Freely Divisible
Freely Descendable

129

Defeasible Fees

Fee Simple Determinable
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Executory Limitation

130

Fee Simple Subject to Executory Limitation

Language:
"To A BUT IF event occurs THEN to B"
Characteristics: Just like the fee simple determinable (automatic forfeiture) but in favor of someone other than the original grantor.

Future Interest: Shifting Executory Interest

131

Absolute Restraints on Alienation

Ie. Absolute restraints on transferability
Unenforceable
Against Public Policy

132

Fee Tail

Common Historically
Requires VERY specific language for its creation
Ex. "To A and the heirs of his body"
Virtually abolished today
attempted creation of a fee tail creates a fee simple absolute

133

Life Estate

Language: Requires EXPLICIT lifetime terms and never a term of years.
ex. "To A for life" not "To A for 99 years"

Future Interest: Grantor holds reversion, 3rd party holds remainder

Waste Doctrine

134

Waste Doctrine

1. Life tenant entitled to all reasonable uses and profits from the land
2. The life tenant must not commit waste (anything to injure the future interest holders)

135

Future Interest: Remainder

Future Interest created in the grantee (entity other than O) that are capable of becoming possessory on the natural conclusion of the preceding estate.

136

Vested Remainder

1. Indefeasibly Vested Remainder
To A for life than to B
2. Subject to Complete Defeasance
To A for life than to B but if B leaves the legal profession than to C.
3.Subject to Open (category of takers open to increasing in size)
To A for life than to A's children

137

Rule Against Perpetuities

Certain future interests are void if they vest too far into the future.

138

Tenancy of Years

Specified length of time, if greater than one year it must be in writing to satisfy the statute of frauds.

139

Periodic Tenancy

Continues for successive intervals until landlord or tenant gives proper notice to terminate.
May be conveyed expressly or by implication
Notice needed to terminate at least = to period itself

140

Tenancy at Will

At will of either landlord or tenant, no fixed duration

141

Tenancy at Sufferance

Created when a tenant has wrongfully held over past the expiration of a lease.

Permits landlord to recover rent until the tenant can be evicted.

TEMPORARY TENANCY

142

Landlord Duties

Duty to Deliver Possession
Implied Covenant of Quiet Enjoyment
Implied Warranty of Habitabilty
Doctrine of Retaliatory Eviction

143

Duty to Deliver Possession

In the majority of jurisdictions the landlord has the duty to provide the tenant with both actual and legal possession of the premises.

144

Implied Covenant of Quiet Enjoyment

Applies to RESIDENTIAL & COMMERCIAL
Landlord simply promises to provide the tenant with quiet use and enjoyment of the leased premises.
Landlord may breach by
-Actual wrongful eviction
-Constructive Wrongful eviction

145

Elements of Constructive Eviction

SING

Substantial Interference due to landlord's actions/failures
Notice to Landlord
Goodbye/Get Out, the tenant must vacate the premises within a reasonable time after giving the landlord notice

146

Implied Warranty of Habitability

ONLY Residential
Non Waivable
Premises must be fit for basic human dwelling

Ex. No heat in winter/No plumbing/No Running Water

147

Implied Warranty of Habitability Tenant Remedy

Tenant may (MRRR)
Move Out and End the lease
Repair & Deduct
Reduce Rent (or withhold all)
Remain in Possession, pay rent & sue landlord for damages

148

Doctrine of Retaliatory Eviction

A landlord may not harass/evict/raise rent or otherwise retaliate against a good faith tenant for reporting housing violations.

149

First in Time Rule

First person to take possession of an unowned thing owns it

150

Capture of wild animals

The law requires capture rather than pursuit

(Policy: easier to administer and capture fosters competition)

151

Adverse Posession General Concept

Possession will ripen into ownership of held long enough under certain conditions

152

Acquisition by Creation

A person may acquire property by creating it, but there are difficulties defining creation.

Purpose of allowing property by creation: rewarding innovation

153

Implied Equitable Servitude

General or Common Scheme (arises in the context of a subdivider)

2 Elements:
1) When sales began A had a general scheme of residential development which included D's lot
2) D had notice of restriction contained in Prior deeds (actual/inquiry or record notice)

154

Forms of Notice (Implied Equitable Servitudes)

A-Air
I-Inquiry
R-Record

155

Doctrine of Changed Conditions

"The neighborhood has so changed that the equitable servitude's restriction no longer makes sense"

Must show that the change is so pervasive that the entire area's character has been forever altered. mere pockets of limited change are never good enough.

156

Future Interest: Reversion

Correlated with life estate

Estate automatically reverts to grantor on life tenant’s death

157

Future Interest: Possibility of Reverter

Correlates with Fee Simple Determinable

Estate automatically reverts to grantor upon occurrence of stated event

158

Future Interest: Right of Entry

Correlates with Fee Simple Subject to Condition Subsequent

Estate does not revert automatically, grantor must exercise his right of entry